                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                         No. 04-19-00129-CV

                     IN THE ESTATE OF Jose Alfredo MENDOZA, Deceased

                         From the County Court at Law, Starr County, Texas
                                    Trial Court No. PR-16-041
                            Honorable Romero Molina, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Irene Rios, Justice
                  Liza A. Rodriguez, Justice

Delivered and Filed: March 4, 2020

REVERSED AND REMANDED

           This is an appeal of a final judgment incorporating two prior orders granting motions for

partial summary judgment and the trial court’s awards of attorney’s fees following a subsequent

bench trial on the issue of attorney’s fees. On appeal, the appellants challenge: (1) the trial court’s

orders granting the motions for partial summary judgment; and (2) the attorney’s fees they are

ordered to pay the Estate of Jose Alfredo Mendoza. Because we hold the trial court erred in

granting summary judgment on the only ground raised in the first motion for partial summary

judgment, we reverse the trial court’s judgment and remand the cause to the trial court for further

proceedings.
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                                                   BACKGROUND

         Jose Alfredo Mendoza died testate on September 2, 2016. Jose was survived by three

daughters, Melinda Iris M. Gonzalez, Maria Mirtha M. Lozano, and Cynthia Emilia M. Garcia

(referred to herein as the “Daughters”), who are the appellees in this appeal. Jose’s son, Eduardo

J. Mendoza, died on June 4, 2014 and, therefore, predeceased Jose. Eduardo was survived by two

children, Michelle Iris Mendoza and Eduardo Jose Mendoza, Jr. (referred to herein as “Eduardo’s

Children”), who are the appellants in this appeal.

         On February 16, 2017, the trial court signed an order admitting the following to probate:

(1) Jose’s last will and testament executed on August 7, 2012; (2) the first codicil to Jose’s will

executed on April 24, 2013; (3) the second codicil to Jose’s will executed on December 3, 2013;

and (4) the third codicil to Jose’s will executed on September 25, 2014, after Eduardo died.

Eduardo’s Children subsequently filed a petition seeking a declaratory judgment construing the

will and codicils, asserting they were entitled to Eduardo’s beneficial interest in a trust to which

Jose gave the “rest, residue and remainder of” his estate under article V of the will. 1 The Daughters

filed a cross-petition for a declaratory judgment construing the wills and codicils, asserting

Eduardo’s Children take nothing under the will and codicils.

         In their first motion for partial summary judgment, the only ground the Daughters raised

as a basis for summary judgment was that “a dead person cannot be a beneficiary of a trust.” As

previously noted, the trial court granted the motion and declared that Eduardo’s Children take

nothing under article V of the will.




1
 Article V provided “in the event that any of my children, named in Paragraph I hereof, survive me by ninety (90)
days, I give the rest, residue and remainder of my estate to MARIA MIRTHA M. LOZANO, as Trustee, in trust for
my children, for a period of ten (10) years after the date of my death to be managed as provided in Article IV, Paragraph
B, above.” The children named in Paragraph I were Eduardo and the Daughters.


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        In their second motion for partial summary judgment, the Daughters referenced the trial

court’s order granting their first motion for partial summary judgment which declared that

Eduardo’s Children take nothing under article V of the will. The Daughters further asserted

Eduardo’s Children should take nothing under any other provision of the will and that Eduardo’s

Children should not recover any attorney’s fees from the estate. The trial court’s order granting

the motion declared that Eduardo’s Children take nothing under any provision of the will or

codicils.

        After granting the two motions for partial summary judgment, the trial court resolved the

issue of attorney’s fees requested by both Eduardo’s Children and the Daughters at a bench trial

and entered a final judgment. Eduardo’s Children appeal.

                                STANDARD AND SCOPE OF REVIEW

        “A trial court’s order granting summary judgment is reviewed de novo.” Ortiz v. State

Farm Lloyds, 589 S.W.3d 127, 131 (Tex. 2019). “A party moving for traditional summary

judgment has the burden to prove that there is no genuine issue of material fact and that it is entitled

to judgment as a matter of law.” Id. (citing TEX. R. CIV. P. 166a(c)). “When reviewing a summary

judgment, we take as true all evidence favorable to the nonmovant, and we indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor.” Id. (internal quotation

marks omitted).

        “Issues not expressly presented to the trial court by written motion, answer or other

response shall not be considered on appeal as grounds for reversal.” TEX. R. CIV. P. 166a(c). “The

‘issues’ required by the rule to be ‘expressly presented’ are those pointed out to the trial court in

written motions, written answers or written responses to the motion.” City of Houston v. Clear

Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979). “To permit ‘issues’ to be presented orally

would encourage parties to request that a court reporter record summary judgment hearings, a


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practice neither necessary nor appropriate to the purposes of such a hearing.” Id. And, “[s]ummary

judgment may not be affirmed on appeal on a ground not presented to the trial court in the motion.”

State Farm Lloyds v. Page, 315 S.W.3d 525, 532 (Tex. 2010). Accordingly, “‘[w]hen a motion

for summary judgment asserts grounds A and B, it cannot be upheld on grounds C and D, which

were not asserted, even if the summary judgment proof supports them and the responding party

did not except to the motion.’” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342

(Tex. 1993) (quoting Roberts v. Sw. Tex. Methodist Hosp., 811 S.W.2d 141, 146 (Tex. App.—San

Antonio 1991, writ denied)); see also Armour Pipe Line Co. v. Sandel Energy, Inc., 546 S.W.3d

455, 466 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (“a non-movant’s failure to object

to the movant raising an argument somewhere other than in the summary-judgment motion does

not allow an appellate court to affirm the summary judgment based on that argument if the movant

failed to expressly present the argument in the summary-judgment motion”); Protocol Techs., Inc.

v. J.B. Grand Canyon Dairy, L.P., 406 S.W.3d 609, 613 (Tex. App.—Eastland 2013, no pet.) (“the

matters presented during the oral hearing on a motion for summary judgment have no bearing on

appeal because the grounds for summary judgment and the issues defeating entitlement thereto

must be presented in writing to the trial court before the hearing”) (internal quotation marks

omitted); Nat’l City Bank of Ind. v. Ortiz, 401 S.W.3d 867, 882 (Tex. App.—Houston [14th Dist.]

2013, pet. denied) (rejecting argument that nonmovant waived trial court’s erroneous consideration

of grounds raised orally at a summary judgment hearing but not raised in the motion).

                                           DISCUSSION

       As previously noted, in their first motion for summary judgment, the only ground asserted

by the Daughters was that “a dead person cannot be a beneficiary of a trust.” In support of this

argument in their motion, the Daughters cited Longoria v. Lasater, 292 S.W.3d 156, 167 (Tex.

App.—San Antonio 2009, pet. denied) and Section 112, comment f of the Restatement (Second)


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of Trusts. The Daughters similarly cite this same authority in defending the summary judgment

in their appellees’ brief.

           In citing these cases, the Daughters ignore the difference between an inter vivos trust,

which was the type of trust analyzed in Longoria, and a testamentary trust, which is the type of

trust created under article V of Jose’s will. See Longoria, 292 S.W.3d at 167. In quoting Section

112, comment f, of the Restatement (Second) of Torts in Longoria, this court recognized this

distinction, asserting:

           A person who has died prior to the creation of a trust cannot be a beneficiary of the
           trust. Thus, if property is transferred inter vivos [i.e., not by will] in trust for a
           named person who is dead at the time of the transfer, no trust is created.

292 S.W.3d at 167 (quoting RESTATEMENT (SECOND) OF TRUSTS § 112 cmt. f (1959)). Because

this court was not considering a testamentary trust, we did not quote the remainder of comment f,

which states the following regarding testamentary trusts:

           So also, if a testator devises property in trust for a person who predeceases him, the
           devise of the beneficial interest lapses, and the person named as trustee ordinarily
           holds the property upon a resulting trust for the estate of the testator. By statute,
           however, in many States a devise does not lapse under certain circumstances, as for
           example if the devisee leaves a child; and under similar circumstances a devise of
           the beneficial interest under a trust does not lapse.

RESTATEMENT (SECOND)             OF   TRUSTS § 112 cmt. f (1959) (internal citation omitted); see also

RESTATEMENT (THIRD)            OF   TRUSTS § 44 reporter’s notes on cmt. d (2003) (citing authorities

discussing the application of the lapse doctrine and anti-lapse statutes to persons taking under trusts

created by a will and noting “[a] comprehensive discussion of the lapse doctrine and anti-lapse

statutes is beyond the scope of this Restatement”). 2 Accordingly, the trial court erred in granting

summary judgment in favor of the Daughters based on the mere fact that Eduardo predeceased




2
    Texas’s anti-lapse statutes are codified at TEX. EST. CODE ANN. §§ 255.151-255.154.


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Jose because that fact alone did not establish Eduardo’s beneficial interest lapsed as a matter of

law.

         Although the Daughters argued at the summary judgment hearing and continue to argue in

their appellees’ brief that Texas’s anti-lapse statutes did not prevent the lapse of Eduardo’s

beneficial interest, the Daughters did not raise this as a ground in either of their written motions

for partial summary judgment. 3 Accordingly, under the authorities previously cited, this court

cannot affirm the trial court’s judgment on that ground. 4 See Page, 315 S.W.3d at 532; see also

Armour Pipe Line Co., 546 S.W.3d at 466; Protocol Techs., Inc., 406 S.W.3d at 613; Nat’l City

Bank of Ind., 401 S.W.3d at 882.

                                                    CONCLUSION

         The mere fact that Eduardo predeceased Jose does not establish his beneficial interest in

the trust created under article V of Jose’s will lapsed as a matter of law. Because this was the sole

ground asserted as the basis for summary judgment in the Daughters’ first motion for partial

summary judgment and no ground was asserted regarding article V in their second motion for

partial summary judgment, 5 we reverse the trial court’s judgment and remand the cause to the trial

court for further proceedings. 6

                                                             Sandee Bryan Marion, Chief Justice




3
  We note the petition filed by Eduardo’s Children and their response to the first motion for partial summary judgment
make reference to “class gifts” and the anti-lapse statute; however, the Daughters failed to address the anti-lapse statute
either by amending their first motion for partial summary judgment or by addressing the anti-lapse statute in their
second motion for partial summary judgment.
4
  Because the issue is not properly before us, we express no comment on the merits of the arguments presented in the
parties’ briefs regarding Texas’s anti-lapse statutes.
5
  As previously noted, the only reference to article V in the second motion for partial summary judgment was the
assertion that the trial court ordered that Eduardo’s Children take nothing under article V in granting the first motion
for partial summary judgment.
6
  Given our disposition of this appeal, the trial court should be allowed to reconsider its award of attorney’s fees to
the estate. See Kercheville v. Carson, No. 04-00-00287-CV, 2001 WL 194301, at *2 (Tex. App.—San Antonio Feb.
28, 2001, pet. denied) (not designated for publication).


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