                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-13-00392-CV

STUART FETTER,
                                                          Appellant
v.

MARSHALL BROWN, ALLISON MADISON
AND LAUREN WILSON,
                                                          Appellees



                          From the 414th District Court
                            McLennan County, Texas
                           Trial Court No. 2011-1908-5


                         MEMORANDUM OPINION


      In two issues, appellant, Stuart Fetter, individually and as trustee of the Fetter

Family Living Trust, complains about a judgment awarding $1,372,119.74 in actual

damages, $686,059 in punitive damages, and $228,523.60 in pre-judgment interest to

appellees, Marshall Brown, Allison Madison, and Lauren Wilson. Specifically, Stuart

contends that: (1) the trial court’s judgment and damages award are not supported by

sufficient evidence; and (2) the trial court erred by awarding the beneficiaries of the
trust a money judgment in their individual capacities, rather than reimbursing the trust.

We affirm.

                                   I.     BACKGROUND

       On May 22, 1997, James Milton Fetter and Florence Rubinsky Fetter, parents of

Stuart and grandparents of appellees, entered into a trust agreement—the Fetter Family

Living Trust.     Pursuant to the trust agreement, Florence was appointed trustee.

Additionally, Stuart and his sister, Annette Fetter Brown, were named as beneficiaries

of the trust—each receiving a 50% share of the proceeds from the trust. Moreover,

section 6.07(a) of the original trust agreement indicated that Lauren—the daughter of

Florence’s youngest daughter, Lana Thompson—would receive a $5,000 distribution

upon the death of James and Florence. Annette is the mother of Marshall and Allison;

however, Annette passed away on December 13, 2003. According to the original trust

agreement, the descendants of Annette and Stuart would receive their share per stirpes

upon the death of Annette or Stuart. Thus, Annette’s 50% share of the trust proceeds

passed to Marshall and Allison in equal shares.

       After the trust was created, James passed away. Subsequently, on April 14, 2004,

Florence executed an amendment to the original trust agreement. In this amendment,

Florence authorized a $25,000 distribution to Lauren, rather than the originally-

designated $5,000 distribution, upon the death of Florence, who was the surviving

spouse at the time. Furthermore, in the amendment, Florence named Stuart as co-




Fetter v. Brown                                                                    Page 2
trustee, effective April 15, 2004.1 Stuart signed an acceptance by co-trustee on April 15,

2004. As co-trustee, Stuart received bank statements for the trust and had banking

privileges corresponding with the trust. On February 14, 2010, Florence passed away.

        At trial, Allison testified that she was very close to Florence and that she was

Florence’s main caregiver. Allison filled Florence’s prescriptions and helped her move

from a retirement community to a nursing home. During this move, Allison took

possession of trust statements that Florence had. Allison believed it to be suspicious

that there were no trust statements later than July 2006.                       Allison also recounted

incidents where she had to pay for Florence’s prescriptions because Florence’s credit

card was declined. In any event, several months after Florence’s death, Allison was

contacted by the funeral home to pay the bill for Florence’s funeral.                         Allison was

shocked that the funeral bill had not been paid by Stuart, the co-trustee who lives in

South Carolina. Later, Allison learned that Stuart had not paid the nursing home for

Florence’s care. Eventually, the nursing home sued Allison for the expenses associated

with Florence’s care.

        Given this, Allison became concerned about the financial condition of the trust.

On July 23, 2010, counsel for Marshall, Allison, and Lauren made a demand for an

accounting of the trust. Stuart responded to the demand for accounting by sending the

beneficiaries brokerage and checking account statements for the trust from 2006 until

the closing of the account, trust income tax returns from 2002 to 2006, and Florence’s



        1   Florence also signed a power of attorney appointing Stuart as her attorney-in-fact as of April 28,
1997.

Fetter v. Brown                                                                                        Page 3
individual tax returns for years 2004 through 2007. Believing that Stuart had “looted”

the trust, appellees filed suit against Stuart.

       In his deposition, Stuart testified that the documents provided to appellees were

his full and accurate accounting of the trust from 2006 until the present. Specifically,

Stuart stated that he had “sent . . . everything that I thought you asked for.” Stuart also

stated that he believed this was in compliance with sections 113.151 and 113.152 of the

Texas Property Code, which outline the duties of the trustee to account. See TEX. PROP.

CODE ANN. §§ 113.151-.152 (West 2007). In addition, Stuart acknowledged making wire

transfers out of the trust and into his personal banking account. Though he did not

recall most of the transactions, Stuart characterized these transfers as gifts. He later

admitted that no one prepared gift-tax returns for these supposed gift transfers.

       In its findings of fact and conclusions of law, the trial court detailed numerous

transactions between Stuart and the trust and determined that:

       15. Trustee [Stuart] failed to comply with his duty as trustee because he
       failed to act in good faith and failed to act in accordance with the purposes
       of the Trust. Good faith means an action that is prompted by honesty of
       intention and a reasonable belief that the action was probably correct.
       Trustee failed to prove that: 1) his self-dealing acts in taking the money
       belonging to the trust were fair and equitable to the beneficiaries of the
       Trust; 2) he made a reasonable use of the confidence placed in him by the
       settlor; 3) he acted in good faith and in accordance with the purposes of
       the Trust in connection with the transactions in question; 4) he placed the
       interests of the beneficiaries before his own[;] 5) he did not use the
       advantage of his position to gain any benefit for himself at the expense of
       the beneficiaries[,] and 6) he did not place himself in any position where
       his self-interest might conflict with his obligations as trustee. Trustee
       failed to fully and fairly disclose to the beneficiaries all material facts
       known to Trustee concerning the transfers of cash from the Trust that
       affected the beneficiaries’ rights.


Fetter v. Brown                                                                        Page 4
       16. Trustee breached his fiduciary duty to the beneficiaries of the Fetter
       Family Living Trust by failing to account for his actions as trustee, by
       committing self-dealing acts, including taking all of the money from the
       Trust for his own personal benefit, and by failing to disclose his breaches
       of fiduciary duty to the beneficiaries of the Trust[.]

The trial court concluded that appellees were entitled to actual damages in the amount

of $1,372,119.74. The trial court also concluded that Stuart acted with actual malice and

awarded punitive damages in the amount of $686,059 and pre-judgment interest in the

amount of $228,523.60. Stuart was removed as trustee, and Allison was appointed

successor trustee of the trust. This appeal followed.

                   II.   THE TRIAL COURT’S JUDGMENT AND DAMAGES AWARD

       In his first issue, Stuart asserts that the trial court erred in admitting evidence of

bank statements and testimony pertaining to the bank statements over his hearsay

objections.       And because the trial court purportedly erred in admitting evidence

pertaining to the complained-of bank statements, and because appellees’ case relied

heavily on the bank statements, Stuart argues that the evidence supporting the trial

court’s judgment is insufficient.

A.     Standard of Review

       Findings of fact entered in a case tried to the court have the same force and

dignity as a jury verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.

1991). We thus review findings of fact by the same standards that are applied in

reviewing the legal and factual sufficiency of the evidence supporting a jury’s answer to

a jury question. Id.




Fetter v. Brown                                                                        Page 5
       An appellate court may sustain a legal-sufficiency challenge only when: (1) the

record discloses a complete absence of evidence of a vital fact; (2) the court is barred by

rules of law or of evidence from giving weight to the only evidence offered to prove a

vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla;

or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich

Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). In determining whether there is

legally-sufficient evidence to support the finding under review, we must consider

evidence favorable to the finding if a reasonable factfinder could and disregard

evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready

Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168

S.W.3d 802, 807, 827 (Tex. 2005).

       Anything more than a scintilla of evidence is legally sufficient to support the

finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Leitch v.

Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). When the evidence offered to prove a vital

fact is so weak as to do no more than create a mere surmise or suspicion of its existence,

the evidence is no more than a scintilla and, in legal effect, is no evidence. Kindred v.

Con/Chem., Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla of evidence exists if

the evidence furnishes some reasonable basis for differing conclusions by reasonable

minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77

S.W.3d 253, 262 (Tex. 2002).

       When considering the factual sufficiency of the evidence to support an adverse

ruling on which the party challenging the judgment did not have the burden of proof,

Fetter v. Brown                                                                        Page 6
we examine all of the evidence and “set aside the [finding] only if it is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust.” See Cain v.

Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). Under either standard of review, the

trier of fact is the sole judge of the credibility of the witnesses and the weight to be

given their testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); see

Wilson, 168 S.W.3d at 819.

B.     Hearsay

       As stated earlier, Stuart asserts that the bank statements and his testimony

regarding the bank statements should not have been admitted into evidence because the

evidence contains inadmissible hearsay. We disagree.

       “‘Hearsay’ is a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

TEX. R. EVID. 801(d). The “hearsay rule” excludes the admission of hearsay evidence.

Id. at R. 802. However, Texas Rule of Evidence 801(e) describes statements which are

not hearsay. See id. at R. 801(e). This list includes admissions by a party-opponent. See

id. at R. 801(e)(2).   In particular, rule 801(e)(2)(B) provides that a statement is not

hearsay if it is offered against a party opponent and it is “a statement of which the party

has manifested an adoption or belief in its truth.” Id. at R. 801(e)(2)(B). The proponent

of allegedly hearsay evidence has the burden of showing that the testimony fits within

an exception to the general rule prohibiting the admission of hearsay evidence.

Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004).



Fetter v. Brown                                                                       Page 7
       Here, appellees demanded an accounting of the trust from the trustee, Stuart,

under section 113.151(a) of the Texas Property Code. See TEX. PROP. CODE ANN. §

113.151(a) (providing that, among other things, “[a] beneficiary by written demand may

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”). In response, Stuart provided appellees with Bank of America

statements and other documents, including tax returns for the trust and for Florence. In

his deposition, Stuart testified that he had provided “everything that I thought you

asked for” and that he had complied with appellees’ statutory demand for accounting.

Stuart further stated:   “The ones you asked for, I got for you from the bank.”

Additionally, Stuart noted that he thought he was in compliance with sections 113.151

and 113.152 of the Texas Property Code—the accounting provisions for trusts—because

he provided the bank statements and income-tax returns. At trial, appellees proffered

the bank statements and income-tax returns provided by Stuart as exhibits, and the trial

court admitted the exhibits into evidence over Stuart’s hearsay objections.

       The statements made by Stuart during his deposition indicate that he believed

the bank and income-tax statements to be an accurate representation of the financial

condition of the trust and in satisfaction of his duty to account as trustee. Or, in other

words, we conclude that the bank statements that Stuart, a party opponent, provided

during discovery and Stuart’s commentary about the bank statements constitute

statements “of which the party has manifested an adoption or belief in its truth.” TEX.

R. EVID. 801(e)(2)(B); see In re A.J.J., No.2-04-265-CV, 2005 Tex. App. LEXIS 3058, at *16

Fetter v. Brown                                                                     Page 8
(Tex. App.—Fort Worth Apr. 21, 2005, no pet.) (mem. op.), overruled, in part, on other

grounds by Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011).2 Accordingly, we hold that the bank

statements and Stuart’s testimony about the bank statements constitute admissions of a

party opponent and are not hearsay. See TEX. R. EVID. 801(e)(2)(B); see also Ramirez, 159

S.W.3d at 908 n.5; In re A.J.J., 2005 Tex. App. LEXIS 3058, at *16.

C.      Excessive Damages

        Furthermore, Stuart argues that the trial court’s damages award is excessive

because it awarded 100% of the remainder of the trust estate to appellees, even though

Stuart retained a 50% interest in the trust.

        We analyze a complaint of excessive damages using the same standard of review

applicable to other factual-sufficiency challenges. Maritime Overseas Corp. v. Ellis, 971

S.W.2d 402, 406 (Tex. 1998). Here, the parties are correct that the trust documents state

that Stuart retains a 50% interest in the trust proceeds and that appellees retain the

remaining 50% interest in the trust proceeds. However, as we determine later, the


        2Relying on Texas Rule of Evidence 802(e)(2)(B), the Fort Worth Court of Appeals noted the
following:

        Robert’s final argument under his first issue is that the trial court erroneously admitted
        into evidence Jean’s exhibits 1, 3, and 4. Robert asserts that exhibit 1, which consists of
        copies of bank statements from his concessions business bank account, should not have
        been admitted because it is hearsay. Robert acknowledged at the modification hearing,
        however, that he had produced the bank statements to Jean in response to discovery
        requests. Therefore, the bank statements were not hearsay because they were admissible
        as admissions by a party opponent.

In re A.J.J., No. 2-04-265-CV, 2005 Tex. App. LEXIS 3058, at *16 (Tex. App.—Fort Worth Apr. 21, 2005, no
pet.) (mem. op.), overruled, in part, on other grounds by Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011) (citing TEX. R.
EVID. 801(e)(2)(B)). Similarly, in the instant case, Stuart acknowledged in his deposition testimony that he
produced the complained-of bank records to appellees in response to their statutory demand for
accounting. See id.; see also TEX. R. EVID. 801(e)(2)(B).

Fetter v. Brown                                                                                            Page 9
recovery in this case belonged to the trust, not appellees in their individual capacity.

Accordingly, there is no need to reduce the damages award to net out Stuart’s 50%

interest in the trust. That will be done when the trust terminates and the successor

trustee winds up the trust affairs. See Sorrel v. Sorrel, 1 S.W.3d 867, 870-71 (Tex. App.—

Corpus Christi 1999, no pet.) (citing 89 C.J.S. Trusts § 96 (1955)). Accordingly, based on

the foregoing, we conclude that the trial court’s damages award is supported by

sufficient evidence. See Ellis, 971 S.W.2d at 406; Cain, 709 S.W.2d at 176.

                  III.   WHETHER THE BENEFICIARIES OF A TRUST CAN RECOVER
                             IN THEIR INDIVIDUAL CAPACITIES


       In his second issue, Stuart contends that the trial court erred in awarding the

beneficiaries of the trust a money judgment in their individual capacities instead of

reimbursing the trust.

       Section 115.011(a) of the Texas Property Code provides that “[a]ny interested

party may bring an action under Section 115.011 of this Act.” TEX. PROP. CODE ANN. §

115.011(a) (West Supp. 2014). The Texas Property Code defines an “interested person”

as “a trustee, beneficiary, or any other person having an interest in or a claim against

the trust or any person who is affected by the administration of the trust.”             Id. §

111.004(7) (West Supp. 2014). Here, it is undisputed that appellees are beneficiaries

under this trust.

       However, “[d]uring the existence of the trust, legal title to the res is in the trustee

and equitable title is in the beneficiaries.” Sorrel, 1 S.W.3d at 871 (citing Shearrer v.

Holley, 952 S.W.2d 74, 78 (Tex. App.—San Antonio 1997, no writ)). However, legal title


Fetter v. Brown                                                                        Page 10
held by the trustee and the equitable title held by the beneficiaries merge in the

beneficiaries and the beneficiaries acquire full ownership interest in the property when

the trust terminates. Id. (citing Shearrer, 952 S.W.2d at 78).

        In its findings of fact and conclusions of law, the trial court removed Stuart as

trustee and appointed Allison as successor trustee. Implicit in this conclusion is that the

trust did not terminate. Indeed, the provisions of section 8.08 of the trust, which

pertains to early termination, do not appear to be applicable here.3 Accordingly, we

agree that recovery in this case should be paid to the successor trustee for continued

management in accordance with the trust agreement. In other words, we conclude that

it is the trust that is entitled to recover the damage award in this case, not appellees in



        3   Section 8.08 of the trust document provides the following:

        8.08 EARLY TERMINATION OF TRUST. The Trustee is empowered to terminate this
        Trust when all Trust Beneficiaries are adults and the amount of principal and income on
        hand in the Trust is so small that the corporate Trustee serving would be entitled only to
        its minimum fees then uniformly charged for like services for small trust estates, after
        first considering all financial or other special advantages to the beneficiary or
        beneficiaries of continuing the trust estate, which are known to the Trustee. The
        Trustee’s judgment shall be final, binding and conclusive upon all parties ever interested
        hereunder and distribution of the trust funds in the manner herein provided shall relieve
        the Trustee of any further responsibility with respect to such funds.

(Emphasis in original).

        However, section 6.08(c), entitled “Final Distributions,” states that:

        Subject to the provisions of paragraph 6.12 of this Trust, upon each beneficiary’s
        attainment of age twenty-five (25) years, the Trustee shall distribute to the beneficiary his
        or her share of all trust funds then on hand, the amount of such distribution to be
        determined as of the date of distribution. All such distributions under this paragraph
        shall be made outright and free of trust to the beneficiary.

(Emphasis in original). Based on the evidence adduced at trial and the trial court’s findings of fact and
conclusions of law, we have no assurance that the trust in this case has terminated.

Fetter v. Brown                                                                                         Page 11
their individual capacities. This conclusion comports with the final judgment and the

trial court’s conclusions of law.4 Therefore, based on the foregoing, we overrule Stuart’s

second issue.

                                                IV.      CONCLUSION

        We affirm the judgment of the trial court.




                                                                  AL SCOGGINS
                                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 9, 2014
[CV06]




        4   In its final judgment, the trial court stated that:

        IT IS FURTHER ORDERED that Stuart Fetter, and his attorneys, attorneys-in-fact,
        agents, and representatives hold all real property, personal property, cash and all other
        assets belonging to the Fetter Family Living Trust, commingled and otherwise, as
        constructive trustee for the [Fetter Family] Living Trust and that Stuart Fetter, and all
        other parties and their attorneys, attorneys-in-fact, agents[,] and representatives are
        hereby ORDERED to immediately deliver all of such assets to Allison Madison,
        Successor Trustee of the Fetter Family Living Trust up to the amount of the judgment.

(Emphasis in original). The trial court’s conclusions of law mirror this language.

Fetter v. Brown                                                                                     Page 12
