                                 MEMORANDUM OPINION
                                         No. 04-10-00319-CV

                     IN THE MATTER OF Patricia Julliette ERNST, Deceased

                         From the Probate Court No. 2, Bexar County, Texas
                                   Trial Court No. 2008-PC-0364
                             Honorable Tom Rickhoff, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: January 12, 2011

AFFIRMED IN PART AND REVERSED AND RENDERED IN PART

           This is an appeal of the probate court’s judgment awarding Michael and Douglas White,

the decedent’s sons, damages based on the executor’s alleged negligence, declaring Michael and

Douglas the owners of the decedent’s Security Service Federal Credit Union (“SSFCU”) bank

accounts, and awarding attorney’s fees.         Milton August Ernst, Jr., Individually and as

Independent Executor of the Estate of Patricia Juliette Ernst, Deceased (“Milton”) contends there

is no evidence or insufficient evidence that he owed Michael and Douglas a duty, that he

breached any duty, or that they suffered any damages. Ernst also asserts the trial court erred in

awarding attorney’s fees pursuant to the Declaratory Judgment Act, or alternatively, that the

award of attorney’s fees was improper because the evidence on attorney’s fees was not
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segregated between tort and non-tort causes of action. We reverse the portion of the judgment

awarding Michael and Douglas damages on their negligence claim and affirm the judgment in all

other respects.

                                         BACKGROUND

       Patricia Juliette Ernst died and Milton, her surviving spouse, filed her will for probate.

The will was admitted to probate and Milton was appointed Independent Executor. Shortly

thereafter, Milton learned of a number of bank accounts that Patricia had opened during their

marriage without his knowledge. Four of these accounts were with SSFCU, and two were

payable-on-death to Michael and two to Douglas. Milton retained attorneys who sent a letter on

his behalf to SSFCU advising that the accounts were the community property of Patricia and

Milton. The letter also directed SSFCU not to distribute any money from the accounts to anyone

but Milton acting either in his individual capacity or as the independent executor. In response to

the letter, SSFCU froze the accounts.

       Michael and Douglas filed a petition for declaratory judgment requesting the court find

they were entitled to the funds in the SSFCU accounts because there had not been any fraud

committed against Milton individually or on the community estate. They also pled tort claims

for interference with their business relationship with SSFCU and negligence against Milton

individually and as the executor of Patricia’s estate.

       After a non-jury trial, the trial court found that a suit for declaratory judgment by Michael

and Douglas was proper to determine their ownership interest in the SSFCU accounts. The trial

court determined that Michael and Douglas were the owners of the SSFCU accounts and that

neither they nor Patricia committed a fraud on Milton individually or on the community estate.

The trial court also made a finding that Milton, as executor, was negligent in failing to determine



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whether either he or the estate had any right, title, or interest in the SSFCU accounts before

sending the letter demanding that SSFCU not distribute any money from the accounts. The trial

court determined Milton’s negligence caused financial hardship and other damage “to one or

more of the plaintiffs,” and awarded $20,000.00 to Michael and Douglas. Additionally, the trial

court awarded Michael and Douglas attorney’s fees in the amount of $50,000.00. Judgment was

rendered accordingly, and Milton filed this appeal.

                                         DISCUSSION

                                           Negligence

       In Milton’s first point of error, he contends there is no evidence or insufficient evidence

that he owed a legal duty, a breach of any duty, or that Michael and Douglas suffered any

damages. The existence of duty is a threshold question of law. Van Horn v. Chambers, 970

S.W.2d 542, 544 (Tex. 1998). “The nonexistence of a duty ends the inquiry into whether

negligence liability may be imposed.” Id. Generally, there is “no duty to take action to prevent

harm to others absent certain special relationships or circumstances.”        Torrington Co. v.

Stutzman, 46 S.W.3d 829, 837 (Tex. 2000).

       As the executor, Milton had statutory and fiduciary duties to protect the interests of the

devisees of Patricia’s estate. See In re Estate of Head, 165 S.W.3d 897, 902 (Tex. App.—

Texarkana 2005, no pet.); Ertel v. O’Brien, 852 S.W.2d 17, 20 (Tex. App.—Waco 1993, writ

denied) (citing Humane Soc’y of Austin & Travis Cnty. v. Austin Nat’l Bank, 531 S.W.2d 574,

571 (Tex.1975)). However, Michael and Douglas were not devisees of any of Patricia’s

property under her will. Rather, the SSFCU accounts were “payable on death” accounts and are

governed by section 439 of the Probate Code. Stauffer v. Henderson, 801 S.W.2d 858, 862-63

(Tex. 1990). Section 439(a) provides in part:



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       Sums remaining on deposit at the death of a party to a joint account belong to the
       surviving party or parties against the estate of the decedent if, by a written
       agreement signed by the party who dies, the interest of such deceased party is
       made to survive to the surviving party or parties.

TEX. PROB. CODE ANN. § 439(a) (West 2003). Section 441 adds: “Transfers resulting from the

application of Section 439 of this code are effective by reason of the account contracts involved

and this statute and are not to be considered as testamentary or subject to the testamentary

provisions of this code.” TEX. PROB. CODE ANN. § 441 (West 2003).

       Michael and Douglas were designated as the beneficiaries on Patricia’s SSFCU accounts.

Because the SSFCU accounts are non-testamentary, they were not a part of Patricia’s estate. As

such, Michael and Douglas were not devisees of Patricia’s estate and Milton as the executor of

the estate did not owe them any duty.

       Michael and Douglas contend that a duty should be imposed on Milton based on the risk-

utility balancing test. In determining whether to create a duty, we “must consider the risk,

foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct,

the magnitude of the burden of guarding against the injury and the consequences of placing that

burden on the actor.” Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994) Michael and Douglas

address only the foreseeability element of the risk-utility test. They merely contend that it should

have been foreseeable to Milton that there was a risk they might need the SSFCU funds and they

would be damaged if they were prevented from receiving the funds. This sole contention is

insufficient to impose a duty on Milton because foreseeability alone does not create a duty. See,

e.g., D. Houston, Inc. v. Love, 92 S.W.3d 450, 456 (Tex. 2002) (“We have declined to hold an

alcohol provider liable for [drunk driving] injuries in some cases, not because the harm was

unforeseeable, but because the defendant had no duty.”); SmithKline Beecham Corp. v. Doe, 903

S.W.2d 347, 353-54 (Tex. 1995) (finding no duty even assuming significant likelihood that

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defendant could and did foresee the relevant harm); Bird, 868 S.W.2d at 769 (acknowledging

that the harm in question was foreseeable, but finding no duty). Accordingly, we reverse the

portion of the judgment awarding $20,000.00 in damages for Milton’s alleged negligence.

                                         Attorney’s Fees

       In his second point of error, Milton contends the trial court erred in awarding attorney’s

fees under the Uniform Declaratory Judgment Act (“UDJA”) because Michael and Douglas

sought a declaratory judgment that there was no fraud on the community. Milton argues this was

a request for a determination of non-liability for a tort, which is not a proper basis for a

declaratory judgment.

       A declaratory judgment is appropriate only if there is a justiciable controversy about the

rights and status of the parties and the declaration will resolve the controversy. Bonham State

Bank v. Beadle, 907 S.W.2d 465, 466 (Tex. 1995); see also City of Helotes v. Miller, 243 S.W.3d

704, 708 (Tex. App.—San Antonio 2007, no pet.). “‘To constitute a justiciable controversy,

there must exist a real and substantial controversy involving genuine conflict of tangible interests

and not merely a theoretical dispute.’” Bonham, 907 S.W.2d at 466 (quoting Bexar-Medina-

Atascosa Cntys. Water Control & Improvement Dist. No. 1 v. Medina Lake Prot. Ass’n, 640

S.W.2d 778, 779-80 (Tex. App.—San Antonio 1982, writ ref’d n.r.e).

       Here, Michael and Douglas asked the trial court to declare they were the rightful owners

of the SSFCU accounts because there had not been a fraud on the community estate and they

were the named beneficiaries on the accounts.           Michael and Douglas did not seek a

determination of non-liability on a tort claim because fraud on the community is not an

independent tort. See Davenport v. Scheble, 201 S.W.3d 188, 195 (Tex. App.—Dallas 2006, pet.

denied). Rather, “‘a claim of fraud on the community is a means to an end, either to recover



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specific property wrongfully conveyed, . . . or . . . to obtain a greater share of the community

estate upon divorce, in order to compensate the wronged spouse for his or her lost interest in the

community estate.’” Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex. 1998) (quoting Belz v.

Belz, 667 S.W.2d 240, 247 (Tex. App.—Dallas 1984, writ ref’d n.r.e.)); see also Davenport, 201

S.W.3d at 195. Because fraud on the community estate is not an independent tort, the trial court

did not make a finding of non-liability in a tort action. Instead, the trial court determined that

neither Milton nor the community estate had any interest in the SSFCU accounts and Patricia did

not commit a fraud on the community by designating Michael and Douglas as the beneficiaries

of the SSFCU payable on death accounts. This determination was the proper subject of a

declaratory action, as it established the rights of Michael, Douglas, Milton, and the community

estate to the SSFCU accounts. See Bonham, 907 S.W.2d at 466.

       Milton also contends the trial court erred in awarding $50,000.00 in attorney’s fees

because Michael and Douglas failed to segregate the fees between the tort claims and the

declaratory judgment. However, Milton waived this complaint because he did not object to the

failure to segregate the fees at trial or by a post-verdict motion. Amerada Hess Corp. v. Wood

Group Prod. Tech., 30 S.W.3d 5, 13 (Tex. App.—Houston [14th] 2000, pet. denied); O’Farrill

Avila v. Gonzalez, 974 S.W.2d 237, 249-50 (Tex. App.—San Antonio 1998, pet. denied).

                                        CONCLUSION

       We reverse the trial court’s judgment awarding Michael and Douglas damages premised

on negligence and rendering judgment in favor of Milton on the negligence claim. We affirm the

remaining portions of the trial court judgment.


                                                   Steven C. Hilbig, Justice




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