                                 MEMORANDUM OPINION
                                         No. 04-10-00912-CV

              Linda SIMERKA, Channon Delgado, and Cody Michael Delgado, a Minor,
                                        Appellants

                                                   v.

                                       Patricia Ann BROOKS,
                                               Appellee

                     From the 288th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2009-CI-03940
                             Honorable Peter A. Sakai, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: June 1, 2011

AFFIRMED

           This is an appeal from the trial court’s order denying appellants’ motion for summary

judgment and granting appellee’s no evidence motion for summary judgment. We affirm.

                                          BACKGROUND

           Appellant Linda Simerka and appellee Patricia Brooks are sisters. Appellants Channon

Delgado and Cody Delgado are Simerka’s daughter and grandson, respectively. Brenda Haessly

was the elder sister of Brooks and Simerka, and when she died, she left her entire estate to their
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mother, Gracie Lewis. When Gracie died, she left her entire estate to her daughter Patricia

Brooks, and she specifically excluded her husband and two other daughters, Linda Simerka and

Sheila McCauley. Gracie’s husband, who is the step-father to Gracie’s daughters, contested the

probate of Gracie’s will; however, he and Brooks eventually settled their dispute.

       The appellants later sued Brooks asking for an accounting of a trust and for damages

arising from the breach of an alleged settlement agreement between appellants and Brooks.

Simerka then filed a motion for summary judgment in which she argued (1) Brooks was

obligated to render an accounting of all assets Brooks received from their elder sister and mother

and (2) Brooks breached a settlement agreement that allegedly required transfer of certain assets

contingent upon settlement of their mother’s estate. Brooks filed a response to the motion and

later filed her own motion for a no-evidence summary judgment. Simerka filed a response to

Brooks’s motion.     The trial court considered both motions and signed an order denying

Simerka’s motion and granting Brooks’s motion. On appeal, Simerka asserts the trial court erred

in denying her motion and granting Brooks’s motion.

                                          DISCUSSION

       When both parties file motions for summary judgment, each must carry its burden and

neither may prevail because of the failure of the other to discharge its burden. Villarreal v.

Laredo Nat’l Bank, 677 S.W.2d 600, 605 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.).

Where there are competing motions for summary judgment, and one is granted and the other

denied, the appellate court determines all questions presented to the trial court. Jones v. Strauss,

745 S.W.2d 898, 900 (Tex. 1988). With competing motions, all evidence accompanying both

motions should be considered in deciding whether to grant either party’s motion. Villarreal, 677

S.W.2d at 605. The reviewing court may affirm the judgment or reverse the judgment and



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render the judgment the trial court should have rendered, including rendering judgment for the

other movant. Jones, 745 S.W.2d at 900. In this case, each motion is the mirror image of the

other; therefore, we will discuss the motions together.

           SUMMARY JUDGMENT ON SIMERKA’S ACCOUNTING CLAIM

       In their first amended petition, appellants alleged Brooks was a constructive trustee for

Simerka and current trustee for Cody. The petition refers to “a trust” and alleges that trust assets

are believed to have been commingled with Brooks’s personal assets. Appellants alleged the

exact nature and extent of the trust assets are unknown and cannot be determined without an

accounting pursuant to Texas Property Code sections 113.151 and 113.152. The petition does

not specifically identify the alleged trust. In their motion for summary judgment, appellants

argued Brooks was required to render an accounting under Property Code sections 113.151 and

113.152. In support of their motion, appellants attached a copy Brenda’s will, which does not

mention a trust. No document evidencing or mentioning a “trust” was attached as summary

judgment proof. Brooks responded alleging appellants were not beneficiaries of the estates of

either Brenda or Gracie and that neither will created a trust. Brooks attached to her response a

copy of Brenda’s will and a copy of Gracie’s will, neither of which mention a trust. In her

motion for a no-evidence summary judgment, Brooks alleged there was no evidence of any trust

or that she is a trustee. In response to this motion, appellants filed “an appendix containing

affidavits, discovery, documentary evidence and Non-Movant’s pleadings, setting forth summary

judgment proof of the existence of material facts concerning the intention of [Benda and Gracie]




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to create trust[s] and the actions of [Brooks] and her attorneys seeking to frustrate that

intention.” 1

         Property Code section 113.151 allows a “beneficiary by written demand [to] request the

trustee to deliver to each beneficiary of the trust a written statement of accounts covering all

transactions since the last accounting or since the creation of the trust, whichever is later.” TEX.

PROP. CODE ANN. § 113.151(a) (West 2007). Section 113.151 also allows “[a]n interested

person [to] file suit to compel the trustee to account to the interested person.” Id. § 113.151(b).

Section 113.152 sets forth the contents of an accounting. Id. § 113.152. Only “express trusts”

are subject to these provisions. Id. § 111.003. “Resulting trusts,” “constructive trusts,” and

“business trusts” are not subject to these provisions. Id. An “express trust” “means a fiduciary

relationship with respect to property which arises as a manifestation by the settlor of an intention

to create the relationship and which subjects the person holding title to the property to equitable

duties to deal with the property for the benefit of another person.” Id. § 111.004(4).

         None of the documents contained in the clerk’s record on appeal mentions a trust nor do

any indicate an intention on the part of either Brenda or Gracie to create a fiduciary relationship

between Brooks and appellants “that subjects [Brooks as] the person holding title to the property

to equitable duties to deal with the property for the benefit of another person.” See id.

Therefore, we conclude appellants did not bear their burden of either conclusively establishing

their right to summary judgment on their claim as a matter of law or of bringing forth more than

a scintilla of probative evidence raising a genuine issue of material fact sufficient to defeat

Brooks’s no-evidence motion. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp.,

1
   The clerk’s record contains a copy of appellants’ response to Brooks’s motion for a no-evidence summary
judgment, attached to which is an “Appendix” that lists over seventeen items. However, only three documents were
actually attached to the response and included in the clerk’s record: a letter from Gracie to her attorney clarifying the
changes she wanted made to her will, which does not mention a “trust”; a single page of Brooks’s deposition, which
does not ask about a “trust”; and hand-written notes by an unidentified person, which does not mention a “trust.”

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988 S.W.2d 746, 748 (Tex. 1999) (stating standard for traditional motion for summary

judgment); see also Gomez v. Tri City Cmty. Hosp., Ltd., 4 S.W.3d 281, 283 (Tex. App.—San

Antonio 1999, no pet.) (stating standard of review for no-evidence motion for summary

judgment). Accordingly, summary judgment in favor of Brooks on appellants’ accounting claim

was proper.

                        BREACH OF SETTLEMENT AGREEMENT

       In their petition and motion for summary judgment, appellants alleged Brooks breached a

settlement agreement. The so-called settlement agreement is a single sheet of paper containing

Brooks’s hand-written notes from a mediation conference. The paper is signed by Brooks, but

no one else. In her motion for a no-evidence summary judgment, Brooks alleged there was no

evidence of an offer, an acceptance, mutual assent, execution and delivery of the contract with

the intent that it be mutual and binding, or consideration. Brooks attached to her motion her own

affidavit in which she admitted she hand-wrote a list of items that still existed in Gracie’s estate.

Brooks explained that the purpose of the meeting with Simerka was to discuss estate items that

“might be available after any mediation settlement” with their stepfather. At the top of the paper

is the title “Settlement with Linda Ray Simerka,” and the end of the paper, which lists four

categories of assets, contains the following notation: “Contingent upon Mr. Lewis [their step-

father] settling the case or Trish [Brooks] wins the case.” Appellants did not respond to the

portion of Brooks’s no-evidence motion that challenged the elements of their claim that Brooks

breached the settlement agreement.

       We conclude appellants did not bear their burden of conclusively establishing their right

to summary judgment on their claim as a matter of law because, although the paper bears the title

of “Settlement,” the paper is nothing more than a list of assets. Even if we were to consider the



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paper as some evidence of one of the elements of their claim (an offer), because appellants did

not respond to Brooks’s assertions that no evidence existed on any element of their claim,

appellants failed to carry their burden of bringing forth more than a scintilla of probative

evidence raising a genuine issue of material fact on the remaining four elements sufficient to

defeat Brooks’s no-evidence motion. Accordingly, summary judgment in favor of Brooks on

appellants’ claim for breach of a settlement agreement was proper.

                                       CONCLUSION

       We overrule appellants’ issues on appeal and affirm the trial court’s summary judgment

in favor of Brooks.



                                                Sandee Bryan Marion, Justice




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