Texas Judiciary Online - HTML Opinion

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Opinion issued June 28, = 2007

In=20 The

Court = of=20 Appeals

For=20 The

First = District=20 of Texas

NO. = 01-03-01050-CV

ROBERT = S. PICKELNER=20 AND IAN HURWITZ, Appellants

DAVID = ADLER,=20 INDEPENDENT EXECUTOR OF THE ESTATE OF SHIRLEY ALPHA, DECEASED; = SUZANNE=20 ALPHA JOHNSTON; CALVIN "KEN" ALPHA JR.; GRANVILLE ALPHA JR.; = ROLAND ALPHA;=20 SHARON ALPHA MARINO; CAROL MARIE BAILEY SMITH; MARY ELIZABETH = BAILEY, AS=20 INDEPENDENT EXECUTRIX FOR THE ESTATE OF JOHN BUCK BAILEY, = DECEASED; ROBERT=20 F. BAILEY JR.; CHARLES LYLE BAILEY; MARION LOUISE BAILEY; NADYNE = ELIZABETH=20 BAKER; PHILIP A. MASQUELETTE, ATTORNEY AD LITEM FOR THE UNKNOWN = HEIRS OF=20 THE ESTATE OF SHIRLEY ALPHA, DECEASED; LYNN ALPHA SMITH; CAROL = DIANE=20 DURBIN; DOLORES ANN LICCIONI FORSYTH; CHARLOTTE LICCIONI = HAWTHORNE;=20 RIDGEWAY WATSON LICCIONI JR.; MARTHA JEAN LICCIONI RAINEY; CHARLES = EDWARD=20 LICCIONI; OTIS LEE DURBIN; WILLIAM ROBERT DURBIN; and MILES = PITTELKOW JR.,=20 Appellees

On = Appeal from=20 Probate Court No. 4

Harris = County,=20 Texas

Trial = Court Cause=20 No. 304,893-401

O P I N I O=20 N

Appellants, Robert S. Pickelner = and Ian=20 Hurwitz, appeal separately from a final judgment rendered in a = probate=20 matter. We determine (1) whether the trial court erred by denying=20 Pickelner's motion for new trial for the mistaken reason that the = motion=20 had been belatedly filed; (2) whether Hurwitz preserved his = complaint that=20 the trial court erred by not rendering judgment in accordance with = a=20 partial settlement agreement and whether the court erred in = denying his=20 post-judgment motion asking to enforce that agreement; and (3) = whether the=20 trial court erred by implicitly rejecting Hurwitz's request to = establish a=20 constructive trust in his favor to convey a house of the decedent = to him.=20 We affirm.

Background

Shirley Alpha ("Shirley") = executed a will=20 in May 1997. Her long-time friend and attorney, Pickelner, drafted = the=20 will. The will made Pickelner the sole devisee:

I give, devise and bequeath all = the rest=20 and remainder of my property of which I may die seized or = possessed, or to=20 which I may be in anywise entitled, whether real, personal or = mixed,=20 wherever situated and however acquired, to my long-time friend = ROBERT S.=20 PICKELNER, to be distributed in accordance with the specific = instructions=20 I have provided him.

The instructions to which the=20 above-quoted provision refers were verbal, and Shirley did not = reduce them=20 to writing. The trial court received testimony of what Shirley's = verbal=20 instructions to Pickelner were. From that testimony, it is evident = that=20 Shirley's instructions to Pickelner did not cover all of the = property that=20 she bequeathed to him. Among her verbal instructions, Shirley = required=20 that Pickelner receive one of her homes and that Hurwitz, = Shirley's close=20 friend and portfolio manager, receive the other. Neither Pickelner = nor=20 Hurwitz was related to Shirley, and neither is her heir at = law.

Shirley died in January 1999. = She had no=20 children and was unmarried at the time. Appellee David Adler is = the=20 independent executor of Shirley's will; the other appellees are = Shirley's=20 heirs at law or their representatives. In March 2001, Adler filed = this=20 declaratory-judgment action, seeking, among other things, an=20 interpretation of the above-quoted devise. Hurwitz intervened. =

Some time before trial, = Hurwitz,=20 Pickelner, and certain of the appellee heirs settled and entered = into a=20 mediated settlement agreement to divide Shirley's property. That = agreement=20 was filed with the trial court before trial. However, not all = parties=20 signed the agreement, and neither Hurwitz nor Pickelner expressly=20 requested during trial that the trial court enforce it.

In April 2003, after a bench = trial, the=20 trial court rendered declaratory judgment that, for reasons that = we set=20 out further below, the bequest to Pickelner was void and that = Shirley's=20 heirs at law were to receive her property. Although the trial = court=20 indicated that it had considered the parol evidence concerning = Shirley's=20 distribution instructions to Pickelner, the court concluded that = it could=20 not give effect to those instructions. Pickelner and Hurwitz = jointly moved=20 for new trial and, alternatively, to enforce the settlement = agreement=20 between them and some of the heirs. The trial court denied their = motion by=20 written order.

Pickelner and Hurwitz appealed. = After=20 their appeals were perfected, and upon determining that the = judgment was=20 not final because it lacked a declaration of heirship for which = Hurwitz=20 had pleaded, this Court abated the appeal and remanded the cause = for the=20 trial court to render a final judgment. The trial court has since = rendered=20 a final judgment, and the appeal has been reinstated.

Pickelner's Appeal^{=20
(1)}

In his issues two and three, = Pickelner=20 argues that the trial court erred by denying his motion for new = trial,=20 which included a motion for enforcement of the settlement = agreement, on=20 the sole ground that the trial court did not reach the motion's = merits=20 because it had mistakenly concluded that the motion was filed too = late.=20 Pickelner relies on a recitation in the order that "The Motion = for New=20 Trial, Alternatively for Modification of Judgment (In Part) and = Request=20 for Hearing on Merits was filed on August 18, 2003 = and was=20 to [sic] late to be a proper motion for new trial, but [was] = considered by=20 the court to be a response." (Italics in original.) Pickelner = correctly=20 points out both that his and Hurwitz's joint new trial motion was = filed on=20 August 14, 2003--not August 18--and that August 14 was within the = time=20 period for filing a new trial motion.

Pickelner misreads the order. = The quoted=20 recitation referred not to his and Hurwitz's joint new trial = motion, but=20 to the joint new trial motion of appellees Suzanne Alpha Johnston, = Calvin=20 "Ken" Alpha Jr., and Miles Pittelkow Jr., which was filed August = 18. The=20 motion for new trial filed by these three appellees was entitled = "Motion=20 for New Trial, Alternatively for Modification of Judgment (In = Part) and=20 Request for Hearing on Merits." This was not the style of = Pickelner and=20 Hurwitz's new trial motion: Pickelner and Hurwitz's motion was = styled,=20 "Motion for New Trial and in the Alternative, Motion to Modify = Judgment to=20 Enforce Settlement Agreement." In its complained-of order, the = trial court=20 recognized the timely filing of Pickelner and Hurwitz's new trial = motion=20 by reciting, "On this day came on to be considered the Motion = for New=20 Trial and in the Alternative, Motion to Modify Judgment to Enforce = Settlement Agreement filed August 14, 2007. = . . .=20 After carefully = considering the=20 motion and all responses, it is the opinion of the Court = that the=20 motion for new trial should be denied." (Italics in original; = emphasis by=20 underlining added.) These recitations demonstrate that the trial = court did=20 not summarily deny Pickelner and Hurwitz's motion for new trial = and=20 enforcement of the settlement agreement based on a mistaken belief = that=20 the motion was late.

We overrule Pickelner's issues = two and=20 three.^{=20
(2)}

Hurwitz's Appeal: Failure to Enforce the = Settlement=20 Agreement

In his issue two, Hurwitz = argues that the=20 trial court "erred in refusing to reach and decide enforceability = of the=20 [settlement] agreement." Although his brief is not entirely clear, = Hurwitz=20 appears to argue both that the trial court erred (1) by having = denied his=20 motion for new trial, which asserted that the court had erred by = not=20 having rendered judgment in accordance with the partial settlement = agreement, and (2) by denying his post-judgment motion to enforce = that=20 agreement.

The settlement agreement was = entered into=20 after a court-ordered mediation, but it was not signed by all = parties in=20 the trial court--in particular, as noted by Hurwitz's counsel = during the=20 hearing to determine his standing, it was not signed by all of = Shirley's=20 heirs at law. It was filed in the trial court styled as a "Rule 11 = Agreement"^{=20
(3)} before trial began. Under the settlement agreement,=20 appellees Suzanne Alpha Johnston, Calvin "Ken" Alpha Jr., and = another were=20 to receive certain real property of Shirley's, $90,000, certain of = Shirley's household goods, and her Lexus automobile. In exchange, = Hurwitz=20 and Pickelner were to receive one of Shirley's homes each. The = remaining=20 property of Shirley's was to be distributed "to the intestate = heirs of=20 Shirley, deceased, as provided by law."

Hurwitz and Pickelner did not = request=20 that the trial court enforce the settlement agreement during = trial, but=20 did so for the first time in their post-trial motion for new trial = and for=20 enforcement of the settlement agreement. In that motion, Hurwitz = and=20 Pickelner advised the trial court that some of the settlement = agreement's=20 signatories had indicated, the month before judgment was rendered, = that=20 they would not abide by the agreement. Hurwitz and Pickelner = sought (1) a=20 new trial based on the settlement agreement "to hear and rule on = the newly=20 discovered evidence" that some of the signatories had repudiated = the=20 agreement or (2) for the court to modify the final judgment to = enforce the=20 settlement agreement. A letter signed by the court's staff = attorney,=20 issued on the same day as the order denying Hurwitz and = Pickelner's=20 post-trial motion, stated,

[T]here were references to the=20 enforceability of the settlement agreement(s) entered into by = various=20 parties. There are no pleadings establishing a justiciable = controversy=20 over the settlement agreement(s) and there has been no notice or=20 opportunity for the merits of such a controversy to be argued = before the=20 Court. The pleading asking for relief, in fact, implies that the = purported=20 repudiation of the agreement has arisen since Judge McCulloch's = judgment=20 on the Declaratory Judgment, and could not therefore have been = part of the=20 trial and resulting judgment. If a proper pleading is filed, if = notice is=20 given, if this Court has jurisdiction over the controversy and = after=20 hearing the merits, only then can Judge McCulloch rule on the = issues=20 surrounding the agreements. At this time and by his ruling on the=20 Declaratory Judgment, Judge McCulloch expresses no opinion about = the=20 status of the parties to the settlement agreement(s), nor the=20 enforceability thereof.

We first consider whether the = trial court=20 erred by denying the motion for new trial, which sought a new = trial based=20 on the fact that the settlement agreement's signatories refused to = perform=20 under the agreement a month before the judgment's entry. We begin = by=20 noting that it is not error for a trial court not to enforce a = settlement=20 agreement in its judgment when the agreement's enforcement was not = requested before judgment. Nonetheless, Hurwitz argues that the = settlement=20 agreement's enforceability was tried by consent before judgment = was=20 entered, so that the trial court erred in not incorporating its = terms into=20 the judgment.

We disagree. "When issues not = raised by=20 the pleadings are tried by express or implied consent of the = parties, they=20 shall be treated in all respects as if they had been raised in the = pleadings." Tex. R. Civ. P. 67. "Trial by consent is intended to = cover the=20 exceptional case where it clearly appears from the record as a = whole that=20 the parties tried the unpled issue." RE/MAX of Tex., Inc. v. = Katar=20 Corp., 961 S.W.2d 324, 328 (Tex. App.--Houston [1st Dist.] = 1997, no=20 pet.). Trial by consent "is not intended to establish a general = rule of=20 practice and should be applied with care, and in no event in a = doubtful=20 situation." Id. "To determine whether the issue was tried = by=20 consent, the Court must examine the record not for evidence of the = issue,=20 but rather for evidence of trial of the issue." Id. = Neither=20 Hurwitz nor Pickelner amended their pleadings at any time to = request=20 enforcement of the settlement agreement. Hurwitz filed the = settlement=20 agreement before judgment, and it was admitted into evidence and = discussed=20 repeatedly during trial. But the settlement agreement was = discussed in=20 order to give a context to determine Hurwitz's standing to = intervene; to=20 show what Shirley's verbal distribution instructions to Pickelner = were, to=20 support the formation of a constructive trust; and to show how = Pickelner=20 had exercised dominion and control over Shirley's assets, to show = that=20 Pickelner, the will's drafter, had not disclaimed any = distributions made=20 to him. Neither Hurwitz nor Pickelner requested that the = settlement=20 agreement be enforced before judgment was rendered, despite (as = their=20 motion for new trial asserted) their having known approximately a = month=20 before judgment that some of the settling parties would not abide = by the=20 agreement. In fact, Hurwitz's own counsel represented to the trial = court=20 during the hearing on Hurwitz's standing that "the Rule 11 = agreement will=20 not become effective until it is signed off by all of the = potential heirs=20 of the estate of Shirley or until it is approved by this Court." A = court=20 does not err in failing to incorporate into its judgment relief = that was=20 not tried by consent and that was not otherwise presented or tried = to the=20 court before judgment.

We overrule this argument under = Hurwitz's=20 issue two.

We next consider whether the = trial court=20 erred by denying Hurwitz's post-judgment motion to enforce the = partial=20 settlement agreement. "An action to enforce a settlement = agreement, where=20 consent is withdrawn, must be based on proper pleading and proof." = Padilla v. LaFrance, 907 S.W.2d 454, 462 (Tex. 1995). = There were=20 no pleadings to support Hurwitz's post-trial motion to enforce the = settlement agreement, and the matter had not been tried by = consent.=20 Moreover, although the settlement agreement purported to have been = executed "under the family settlement doctrine," not all of = Shirley's=20 heirs signed it, and the agreement divided estate assets to which = the=20 court determined that the non-signatory heirs also had a claim. "A = family=20 settlement agreement is an alternative method of administration in = Texas=20 that is a favorite of the law." Shepherd v. Ledford, 962 = S.W.2d=20 28, 32 (Tex. 1998). Under such an agreement, "[t]he beneficiaries = of an=20 estate are free to arrange among themselves for the distribution = of the=20 estate and for the payment of expenses from that estate." Id.=20 However, such an agreement generally requires all heirs' or=20 beneficiaries' agreement on the distribution. See Estate of=20 Morris, 577 S.W.2d 748, 755-56 (Tex. Civ. App.--Amarillo = 1979, writ=20 ref'd n.r.e.) ("And it remains our law that a family settlement in = which=20 all of the heirs and beneficiaries agree that a purported = will=20 shall not be probated is valid and enforceable.") (emphasis added) = (citing=20 Salmon v. Salmon, 395 S.W.2d 29, 32 (Tex. 1965)). The = trial court=20 did not err in denying a request to enforce a settlement agreement = that=20 distributed estate assets contrary to the rights of those who had = not=20 signed the agreement, especially when no pleading supported that = request=20 and the matter had not been tried by consent.

We overrule the remainder of = Hurwitz's=20 issue two.

Hurwitz's Appeal: Implicit Rejection of=20 Request

to Recognize a Constructive Trust

In his first issue, Hurwitz = argues that=20 the trial court "erred in failing to recognize a constructive = trust over=20 the property [Shirley] intended Hurwitz to receive." Specifically, = Hurwitz=20 contends that the will's distribution to Pickelner, with direction = to=20 distribute Shirley's property pursuant to verbal instructions that = she had=20 left him, required imposition of a constructive trust for = Hurwitz's=20 benefit.

A. Standard of=20 Review

We review declaratory judgments = under the=20 same standards as other judgments and decrees. Tex. Civ. Prac. = & Rem.=20 Code Ann. =A7 37.010 (Vernon 1997). The declaratory judgment = under=20 review was rendered after a bench trial, but no fact findings were = requested or entered. Accordingly, the conclusions in the trial = court's=20 declaratory judgment, being themselves conclusions of law, will be = upheld=20 on appeal if they can be sustained on any legal theory supported = by the=20 evidence. See, e.g., Truck Ins. Exch. v. Musick, = 902=20 S.W.2d 68, 69 (Tex. App.--Fort Worth 1995, writ denied). We review = a trial=20 court's legal conclusions de novo. See BMC Software Belgium, = N.V. v.=20 Marchand, 83 S.W.3d 789, 794 (Tex. 2002).

B. Additional=20 Facts

Pickelner, a long-time friend = of=20 Shirley's, drafted her will. The pertinent portion of the will, as = quoted=20 above, provided that all of Shirley's property was "devise[d] and=20 bequeath[ed]" to Pickelner "to be distributed in accordance with = the=20 specific instructions which I have provided him." The undisputed = testimony=20 was that Shirley had given Pickelner verbal instructions that one = of her=20 homes was to be distributed to him, that another of her homes was = to be=20 distributed to Hurwitz, and that certain other property would be=20 distributed to others; however, it was also undisputed that the = verbal=20 instructions that she gave Pickelner did not concern all of her = property=20 that passed to him under the will. It was further undisputed that = Shirley=20 did not give Pickelner the distribution instructions in=20 writing.

After Shirley died, an undated = note in=20 her handwriting was found in her home. It was written on the back = of an=20 envelope that was post-marked within a few months before her = death. That=20 note, entitled, "Attn: Important Addendum Will," indicated how = certain=20 property should be distributed, including that one of her homes = was to go=20 to Hurwitz. Pickelner testified that the handwritten note = "parroted the=20 [distribution] instructions she had given me verbally on many = occasions."=20 As on appeal, Hurwitz never contended at trial that the = handwritten note=20 was a valid codicil to the will, but he instead argued that the = writing=20 was consistent with Shirley's verbal instructions to Pickelner and = showed=20 her intent concerning those distributions.

The trial court's final = declaratory=20 judgment provided in pertinent part as follows:

[T]he Court finds that = Shirley's will=20 fails to make a proper testamentary disposition of her estate and = that the=20 entire estate passes by intestate succession to her heirs at law. = In=20 reaching this finding, the Court considered the testimony that = Miss Alpha=20 orally instructed her friend and counselor, Mr. Robert Pickelner, = in how=20 she wanted her estate distributed. The Court recognizes that there = is a=20 writing . . . , purportedly in Miss Alpha's handwriting, = that=20 mentions certain property. The Court finds that this writing was = not in=20 existence at the time the will was written and cannot have been=20 incorporated by reference into the will and is of no testamentary=20 significance. The Court finds that under Texas law, courts may not = construe a will and determine its dispository scheme by oral = instructions=20 that the testator may have given. The Court finds that the will = was=20 written by an attorney at law licensed to practice in the state of = Texas=20 and that the will must be read giving ordinary meaning to the = words in the=20 will and that there is no mention of a trust in the will or = attempt by the=20 testator to create a testamentary trust in the will and that there = is no=20 trust.

In addition, the Court finds = that the=20 gift to Mr. Pickelner must fail because it is a violation of Texas = public=20 policy for an attorney to draft a will where he is the sole = beneficiary.=20 Mr. Pickelner therefore holds the property, if at all, for the = benefit of=20 the heirs at law of Miss Alpha. . . .

The court finds that the = hand-written=20 instructions are not valid, that Mr. Pickelner does not take under = the=20 will and that the independent executor shall distribute the estate = after=20 the payment of final debts and expenses to the heirs at = law.

C. Types of Trusts=20 Generally

Generally speaking, Texas law = recognizes=20 three types of trusts:

"From the viewpoint of the = creative force=20 bringing them into existence, trusts may be classed as 'express = trusts'=20 and 'trusts by operation of law,' the latter being either = resulting or=20 constructive trusts. An express trust can come into existence only = by the=20 execution of an intention to create it by the one having legal and = equitable dominion over the property made subject to it. A trust = by=20 operation of law, frequently called an 'implied trust,' comes into = existence either through an implication of intention to create a = trust as=20 a matter of law or through the imposition of the trust = irrespective of,=20 and even contrary to any, such intention. In other words, a = trust=20 intentional in fact is an express trust; one intentional in law is = a=20 resulting trust; and one imposed irrespective of intention is a=20 constructive trust."

Mills v. Gray, 147 = Tex. 33, 37,=20 210 S.W.2d 985, 987 (1948) (quoting 54 Am. Jur. 22, =A7 5) = (emphasis=20 added).

1. Express Trusts=20 Generally

An express trust establishes "a = fiduciary=20 relationship with respect to property which arises as a = manifestation by=20 the settlor of an intention to create the relationship and which = subjects=20 the person holding title to the property to equitable duties to = deal with=20 the property for the benefit of another person." Tex. = Prop. Code=20 Ann. =A7 111.004(4) (Vernon 2007). "Technical words of expression=20 . . . are not essential for the creation of a trust."=20 Perfect Union Lodge No. 10, A.F. & A.M., of San Antonio v. = Interfirst Bank of San Antonio, N.A., 748 S.W.2d 218, 220 = (Tex.=20 1988); see Barrientos v. Nava, 94 S.W.3d 270, 280 (Tex.=20 App.--Houston [14th Dist.] 2002, no pet.) ("No particular form of = words is=20 required to create a trust."). However, "[i]n order to show an = express=20 trust, the controlling tests are that (1) the words of the settlor = ought=20 to be construed as imperative and thus imposing an obligation on = the=20 trustee, (2) the subject to which the obligation relates must be = certain,=20 and (3) the person intended to be the beneficiary must be = certain."=20 Brelsford v. Scheltz, 564 S.W.2d 404, 406 (Tex. Civ.=20 App.--Houston [1st Dist.] 1978, writ ref'd n.r.e.); accord = Roberts v.=20 Squyres, 4 S.W.3d 485, 489 (Tex. App.--Beaumont 1999, pet. = denied).=20 Stated another way, "To create a trust by a written instrument, = the=20 beneficiary, the res, and the trust purpose must be = identified."=20 Perfect Union Lodge No. 10, A.F. & A.M., of San = Antonio, 748=20 S.W.2d at 220. This Court has referred to these requirements as = "essential=20 elements" of an express trust. See Fred Rizk Constr. Co. v. = Cousins=20 Mortg. & Equity Investments, 627 S.W.2d 753, 757 (Tex.=20 App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.); Ray v.=20 Fowler, 144 S.W.2d 665, 668 (Tex. Civ. App.--El Paso 1940, = writ=20 dism'd judgm't cor.).

"The missing terms of an = express trust=20 may not be established by parol evidence." Brelsford, 564 = S.W.2d=20 at 406. That is, when an essential term is altogether missing from = an=20 attempted express trust, or is not at least reasonably certain, = that term=20 cannot be supplied by parol evidence, and the trust will fail. = See=20 id. (indicating that attempted express trust that was missing = basic=20 elements of trustee's powers and trust's terms failed); = Ronald R.=20 Cresswell, Patrick J. Pacheco, Sarah Patel Pacheco, & Marjorie = J.=20 Stephen, Texas Practice guide: Wills, trusts and est. plan. = =A7 5:121=20 (Dec. 2000) ("[T]he language must be reasonably certain as to the = material=20 terms of the trust. . . . If the language is so = vague,=20 general, or equivocal that any of these necessary elements of the = trust is=20 left in real uncertainty, the trust will fail.") (citing Fred = Rizk=20 Constr. Co., 627 S.W.2d at 757); see also Ray, 144 = S.W.2d at=20 669 (holding that attempted express trust that lacked essential=20 requirement of listing beneficiaries failed; stating, "The trust = attempted=20 to be created is void for uncertainty.").

2. = Resulting=20 Trusts Generally

A resulting trust is an = equitable remedy=20 that is implied by operation of law and that a trial court may = impose to=20 prevent unjust enrichment. See, e.g., Hubbard v.=20 Shankle, 138 S.W.3d 474, 486 (Tex. App.--Fort Worth 2004, = pet.=20 denied). "When an express trust fails, the law implies a resulting = trust=20 with the beneficial title vested in the trustor or, in the case of = the=20 trustor's death, in her estate and devisees." Brelsford, = 564=20 S.W.2d at 406; see Nolana Dev. Ass'n v. Corsi, 682 S.W.2d = 246,=20 250 (Tex. 1984) ("A resulting trust is implied in law = . . . when=20 an express trust fails."). "The doctrine of resulting trust is = invoked to=20 prevent unjust enrichment, and equitable title will rest with the = party=20 furnishing the . . . trust property when an express = trust=20 fails." Corsi, 682 S.W.2d at 250.

3. Constructive Trusts=20 Generally

Like a resulting trust, a = constructive=20 trust is also an equitable remedy that is implied by operation of = law and=20 that a trial court may impose to prevent unjust enrichment. = See,=20 e.g., Hubbard, 138 S.W.3d at 485. "'[A] constructive = trust=20 generally involves primarily a presence of fraud, in view of which = equitable title or interest should be recognized in some person = other than=20 the taker or holder of the legal title.'" Mills, 147 Tex. = at 38,=20 210 S.W.2d at 988 (quoting 54 Am. Jur. 147, =A7 188); see = Pope v.=20 Garrett, 147 Tex. 18, 21, 211 S.W.2d 559, 560 (1948) ("The = case is a=20 typical one for the intervention of equity to prevent a=20 wrongdoer, who by his fraudulent or = otherwise=20 wrongful act has acquired title to property, from retaining = and=20 enjoying the beneficial interest therein, by impressing a = constructive=20 trust on the property in favor of the one who is truly and = equitably=20 entitled to the same.") (emphasis added). Because "[a] = constructive trust=20 escapes the unquestioned general rule that land titles must not = rest in=20 parol, . . . there must be strict proof of a prior = confidential=20 relationship and unfair conduct or unjust enrichment on the part = of the=20 wrongdoer." Rankin v. Naftalis, 557 S.W.2d 940, 944 (Tex. = 1977).=20 Additionally, the remedy of imposing a constructive trust "must be = used=20 with caution, especially where . . . proof of the = wrongful act=20 rests in parol, in order that it may not defeat the purposes of = the=20 statute of wills, the statute of descent and distribution, or the = statute=20 of frauds." Pope, 147 Tex. at 25, 211 S.W.2d at = 562.

D. Certain Trusts in = the Context=20 of Testamentary Conveyances

A discussion of the relevant = functions=20 and operations of certain types of trust in the context of = testamentary=20 conveyances follows.

1. Secret Trusts and = Constructive=20 Trusts

In the context of a = testamentary=20 conveyance, a constructive trust can be imposed as a remedy when a = testator conveys her property to another with the understanding = that the=20 devisee will deliver the property to a third person, but the will = conveys=20 the property outright to the devisee, without evidencing any = intent to=20 create a trust. See Gerry Beyer, 10 Texas Practice Series = =A7 45.1 (3rd ed.). The agreement between the testator and = devisee in=20 this scenario is sometimes referred to as a "secret trust" because = it does=20 not appear in the will. See Temple v. City of Coleman, = 245 S.W.=20 264, 267-68 (Tex. Civ. App.--Austin 1922, writ dism'd) ("'[I]f the = testator is induced either to make a will or not to change one = after it is=20 made, by a promise, express or implied, on the part of a legatee = that he=20 will devote his legacy to a certain lawful purpose, a secret = trust=20 is created, and equity will compel him to apply property thus = obtained in accordance with his promise.'") (emphasis added) = (quoting=20 Trustees of Amherst College v. Ritch, 151 N.Y. 323, 45 = N.E. 876,=20 37 L.R.A. 305 (1897)). In this situation, the remedy of a = constructive=20 trust may be imposed in favor of the intended third person if the = devisee=20 wrongfully refuses to convey the property to him or her; that is, = a=20 constructive trust may be employed to enforce the secret trust. = See=20 Pope, 147 Tex. at 21-22, 211 S.W.2d at 560. The constructive = trust is=20 imposed as a remedy not because the devise fails (the devise, in = fact,=20 succeeds), but because equity will not allow the wrongdoing = devisee to=20 enjoy the beneficial interest of the devise, i.e., it = will not=20 allow him to be unjustly enriched in contravention of the secret = trust.^{=20
(4)} See = Pope,=20 147 Tex. at 21, 211 S.W.2d at 560.

Concerning=20 secret trusts, the Texas Supreme Court has explained:

It is very=20 generally held that, as against a devisee or legatee who has = proved a=20 desire or bequest to himself, absolute in terms, on promise orally = made to=20 a testator to hold for the benefit of, or that he will convey it = to,=20 another, the intended beneficiary, as against them, may establish = and=20 enforce the trust with which the law affects him; but this is = based on his=20 breach of confidence or fraud which in many cases gives rise to = trusts;=20 and on like grounds in other cases beneficiaries have been = permitted to=20 establish by oral testimony, and to enforce against devisees, = trusts=20 growing out of testamentary disposition of property, but in those = cases it=20 will be found most generally that the will was sufficient to = divest the=20 heir of right. The theory on which those cases stand is thus = clearly=20 stated: "Where a trust not declared in the will is established by = a court=20 of chancery against the devisee, it is by reason of the obligation = resting=20 upon the conscience of the devisee, and not as a valid = testamentary=20 disposition by the deceased. . . . Where the bequest = is=20 outright upon its face, the setting up of a trust, while it = diminishes the=20 right of the devisee, does not impair any right of the heirs or = next of=20 kin, in any aspect of the case; for, if the trust were not set up, = the=20 whole property would go to the devisee by force of the devise. = If the=20 trust set up is a lawful one, it inures to the benefit of the = cestui que=20 trust . . . . Olliffe v. = Welis.

Heidenheimer v.=20 Bauman, 84 Tex. 174, 183, 19 S.W. 382, 385 (1892) (emphasis = added).=20

2.=20 Semi-Secret Trusts and Resulting = Trusts

The remedy=20 of a resulting trust can be employed if the will on its face shows = that=20 the testator intended to give her property to the devisee to hold = in=20 trust, but the intended testamentary trust fails for lack of = specificity.=20 See Ray, 144 S.W.2d at 668-69. The devise attempting (but = failing) to leave property in trust is sometimes referred to as a=20 "semi-secret trust" because the intent to make a trust appears in = the=20 will, but the trust's essential terms do not. See = Restatement=20 (Third) of Trusts =A7 18 (2003), cmt. a. A semi-secret trust = is, in=20 essence, a failed express testamentary trust. As when any express=20 testamentary trust fails, the remedy of a resulting trust arises = by=20 operation of law in favor of the testator's heirs, even if parol = evidence=20 would have shown that the heirs were not the intended = beneficiaries of the=20 failed trust. See Heidenheimer, 84 Tex. at 182-83, 19 = S.W. at 384=20 ("'The will upon its face showing that the devisee takes the legal = title=20 only, and not the beneficial interest, and the trust not being=20 sufficiently defined by the will to take effect, the equitable = intent=20 goes, by way of resulting trust, to the heirs or next of kin as = property=20 of the deceased, not disposed of by his will.'") (quoting = Olliffe v.=20 Wells, 130 Mass. 221, 225-26 (1881)); Ray, 144 = S.W.2d at 669=20 ("We hold that, under the will in question, the defendant = [devisee] did=20 not take the legal and beneficial title to the property. The legal = title=20 only was vested in him. The trust attempted to be created is void = for=20 uncertainty. This being true, the beneficial title to the estate = vested in=20 the heirs. If this holding be correct as to the beneficial title = to the=20 property, the testatrix died intestate. In legal effect it is = tantamount=20 to a provision by the testatrix that after the debts are paid her = estate=20 should go to her legal heirs."); see also Loery v. = Gallagher, 190=20 S.W.2d 165, 168 (Tex. Civ. App. 1945, writ ref'd w.o.m.); = Kramer v.=20 Sommers, 93 S.W.2d 460, 466 (Tex. Civ. App.--Fort Worth 1936, = writ=20 dism'd). The remedy of the resulting trust arises not because of = any=20 wrongdoing on the part of the devisee, but because the intended = express=20 trust (i.e., the semi-secret trust) fails, and the will = evidenced=20 an intent that the devisee was to receive legal title only, not = beneficial=20 title. See, generally, Heidenheimer, 84 Tex. at = 181-85,=20 19 S.W. at 384-85.

Concerning=20 semi-secret trusts, the Texas Supreme Court has = explained:

"[I]f the=20 trust set up is unlawful, the heirs or next of kin take by way of=20 resulting trust." Olliffe v. Welis. The rule is thus = declared: "=20 . . . But where the will gives a legacy or devise to any = one=20 upon trust without declaring such trust, and none is afterwards = declared,=20 or, if so, only in an informal mode, the legatee or devisee will = not hold=20 absolutely under the bequest, but he will hold in trust for the = testator's=20 heir at law or next of kin, the bequest virtually lapsing by = reason of=20 being left incomplete. . . . and when the law requires a = will of=20 personalty to be executed with the same formalities as a will of = real=20 estate, or with any other formalities, it will require = testamentary trusts=20 in regard to such property to be established by the same = formalities.=20 Any other rule in regard to testamentary trusts would be = liable, and=20 very likely, in practice to trench gradually upon the prescribed=20 formalities in the execution of wills; for if trusts of a=20 testamentary character might be declared by the testator by mere = oral=20 declarations, or by writing not executed with the same formalities = required in the execution of wills, men's final dispositions = would, in=20 many cases, be made up largely of such acts and declarations as = the=20 cupidity of claimants and the recklessness or indifference of = witnesses=20 might dictate." 3 Redf. Wills, 579. . . . "If a = testator=20 should devise real or personal property to A. in trust, and state = no trust=20 on which A. is to hold, no paper not referred to in the will, and = not duly=20 executed, could be received in evidence to prove the trusts, nor = could A.=20 hold the beneficial interest because he is stamped with the = character of a=20 trustee, but he would hold only the legal title, while the = beneficial=20 interest would descend or result to the testator's heirs at law." = 1=20 Perry, Trusts, 93.

Heidenheimer,=20 84 Tex. at 183-84, 19 S.W. at 385 (emphasis added).

E.=20 Devises to the Attorney Who Drafts the Will

Under the=20 law applicable to this case,^{=20
(5)} if a lawyer prepares a will for a client unrelated = to him,=20 devising to himself or one in his close family a substantial gift = from=20 that client, that devise is void as against public policy. See = Shields=20 v. Tex. Scottish Rite Hosp. for Crippled Children, 11 S.W.3d = 457,=20 459-60 (Tex. App.--Eastland 2000, pet. denied); see also Olson = v.=20 Estate of Watson, 52 S.W.3d 865, 870 (Tex. App.--El Paso = 2001, no=20 pet.). This prohibition is based on Texas Disciplinary Rule of=20 Professional Conduct 1.08(b).^{=20
(6)} See = Olson,=20 52 S.W.3d at 870; Shields, 11 S.W.3d at 459. "In = determining=20 whether the gift [is] substantial, we look to the commentary = following=20 Rule 1.08(b)." Olson, 52 S.W.3d at 870. "Comment number = three [of=20 Rule 1.08] states that a lawyer may accept a gift from a client if = the=20 transaction meets general standards of fairness, such as a gift = given at a=20 holiday or as a token of appreciation." Id. If a devise = to the=20 attorney who drafted the will is void as a substantial gift, then = either=20 the devisee of the will's residuary clause, or the testator's = heirs if=20 there is no residuary clause, take under the will. See = id. at 869=20 (determining that trial court did not err by rendering summary = judgment=20 for testator's son, who was expressly excluded from will in favor = of=20 drafting attorney, and by awarding son estate because devise to = attorney=20 was void); Shields, 11 S.W.3d at 460 (determining that = devise to=20 drafting attorney that was void went to residuary devisee under=20 will).

F.=20 Discussion

Hurwitz in=20 effect argues, as he did below, that a constructive trust should = have been=20 recognized over the house that Shirley intended for him to receive = because=20 (1) the will contained a semi-secret trust, i.e., the = will=20 demonstrated that she intended to devise Pickelner certain = property in=20 trust for others; (2) the semi-secret trust necessarily failed as = an=20 express trust; (3) parol evidence undisputably showed that Hurwitz = was one=20 of the trust beneficiaries and that he was to receive the house; = and thus=20 (4) the trial court should have imposed the remedy of a = constructive trust=20 on Pickelner to carry out Shirley's undisputed wishes. In = contrast, the=20 trial court concluded that (1) Shirley did not attempt to create = an=20 express trust in the will, i.e., the will did not contain = a=20 semi-secret trust; (2) parol evidence of her testamentary intent = could not=20 be considered in determining her will's dispository scheme; (3) = she thus=20 bequeathed her entire estate without qualification to Pickelner, = the=20 attorney who drafted her will; (4) the devise to Pickelner failed = because=20 it violated public policy; and thus (5) her heirs were the proper=20 recipients of her estate. We disagree with Hurwitz's arguments = because=20 they are contrary to well-established law. And although we diverge = from=20 certain of the trial court's conclusions in the ways that we note = below,=20 we agree with its ultimate disposition.

"The basic=20 principle in construing a will is to ascertain the intent of the=20 testator." Hancock v. Krause, 757 S.W.2d 117, 119 (Tex.=20 App.--Houston [1st Dist.] 1988, no writ); see Tex. Prop. = Code=20 Ann. =A7 112.002 (Vernon 2007) ("A trust is created only if = the settlor=20 manifests an intention to create a trust."). "If the language of = the will=20 is unambiguous and plainly expresses that intention, it is = unnecessary for=20 the court to apply the technical rules of construction; rather, = the court=20 is confined to a mere legal interpretation and enforcement of the=20 testator's intention." Id. That is, "[c]onstruction of a = trust=20 instrument is a question of law for the trial court when no = ambiguity=20 exists." Wright v. Greenberg, 2 S.W.3d 666, 671 (Tex.=20 App.--Houston [14th Dist.] 1999, pet. denied). "If the court can = give a=20 certain or definite legal meaning or interpretation to the words = of an=20 instrument, it is unambiguous and the court may construe it as a = matter of=20 law." Id. "If, however, the meaning of the instrument is=20 uncertain or reasonably susceptible to more than one meaning, it = is=20 ambiguous." Id.

The only=20 reasonable interpretation of the devise in Shirley's will of all = of her=20 property to Pickelner "to be distributed in accordance with the = specific=20 instructions which I have provided him" is that Shirley intended = for=20 Pickelner to receive only legal title to her property, = i.e., to=20 hold her property in some kind of trust, rather than outright. = See=20 Heidenheimer, 84 Tex. at 184, 19 S.W. at 385 (indicating that = following language created semi-secret trust: "I give, devise and = bequeath=20 to my brother . . . in trust, to be disposed of by him = as I have=20 heretofore or may hereafter direct him to do"); see also = Ray, 144=20 S.W.2d at 668 (indicating that following language created = semi-secret=20 trust: "I have instructed the said W.E. Fowler [devisee, styled = "trustee"=20 earlier in the will] how I desire my said estate to be handled and = I leave=20 the matter entirely to his honesty and integrity"; also relying on = language that delegated specific powers over devised property);=20 cf. Barrientos, 94 S.W.3d at 280 ("No particular = form of=20 words is required to create a trust."). Shirley's will was = unambiguous in=20 this regard, and we may thus construe the devise as a matter of = law.=20 See Hancock, 757 S.W.2d at 119; Wright, 2 S.W.3d = at=20 671.

We further=20 hold that the trust that Shirley attempted to create in her will = was a=20 semi-secret trust because it lacked essential terms, in particular = because=20 it completely failed to identify the beneficiaries. See=20 Heidenheimer, 84 Tex. at 184, 19 S.W. at 385; = Brelsford, 564=20 S.W.2d at 406 (providing that express trust requires, among other = things,=20 certainty in designating beneficiaries under trust). A semi-secret = trust=20 is, in essence, a failed express testamentary trust. Because an = express=20 testamentary trust was attempted, but failed, the trust terms = could not be=20 proved by parol evidence. See, e.g., = Heidenheimer, 84=20 Tex. at 182, 19 S.W. at 384 (in holding that terms of = semi-secret=20 testamentary trust's terms could not be proved by parol evidence,=20 reasoning that "there are no parts of a testamentary paper more = important=20 elements in its validity than those which name the beneficiaries = and=20 declare what part of the testator's estate each shall receive. = While=20 language of the statute prescribing the requisites to a will is=20 affirmative, it as fully denies testamentary effect to parol = declarations=20 as would it if it expressly declared that no testamentary = disposition of=20 property should be made in manner other than that prescribed.");=20 Brelsford, 564 S.W.2d at 406. Because the semi-secret = trust could=20 not be proved by parol evidence, and because the will contained no = residuary clause, Pickelner held all devised property under the = remedy of=20 a resulting trust for the benefit of Shirley's heirs at law.^{=20
(7)} See Heidenheimer, 84 Tex. at = 182-84, 19=20 S.W. at 384-85; see also Ray, 144 S.W.2d at 669. That is, = her=20 heirs at law take under her will.

In contrast=20 to our holdings above, the trial court concluded that Shirley's = will did=20 not intend to establish any kind of testamentary trust--that is, = that her=20 will did not contain a semi-secret trust. For the reasons = discussed above,=20 we disagree with the trial court's interpretation that Shirley's = will did=20 not contain a semi-secret trust. Nonetheless, because no fact = findings=20 were requested or entered, we may affirm the judgment on any legal = theory=20 supported by the evidence. See, e.g., Musick, = 902 S.W.2d=20 at 69. The trial court's ultimate determination that Shirley's = heirs at=20 law were to receive all of her property upon her death was = correct, and we=20 uphold it.

Conclusion

We affirm=20 the judgment of the trial court.

Tim=20 Taft

Justice

Panel=20 consists of Justices Taft, Jennings, and Alcala.=20

1. In his issue one, Pickelner had argued = that the=20 trial court's April 2003 judgment was not final. That challenge = has been=20 rendered moot by this Court's abatement of the appeal, its remand = of the=20 cause for entry of a final judgment, and the trial court's = rendition of a=20 final judgment.=20

2. Pickelner's issue three states, "The = trial court=20 erred in overruling Pickelner's 'Motion for New Trial and in the=20 Alternative, Motion to Modify Judgment to Enforce Settlement = Agreement'=20 because Texas law favors enforcement of partial settlements and = this=20 settlement complied in all fashions with Texas Rule of Civil = Procedure=20 11." However, the only argument in the combined discussion of = issues two=20 and three is that the trial court erred in overruling the motion = without=20 reaching its merits because the court had mistakenly determined = that that=20 motion was untimely filed. Pickelner argued the merits of = enforcing the=20 settlement agreement only in the context of harm, that is, only to = demonstrate that the summary denial of his motion based on the = mistake=20 concerning its timeliness was harmful error. This is not = the=20 equivalent of a challenge, like Hurwitz's, that the trial court = erred=20 because it failed to enforce the settlement agreement. What = is=20 actually argued and briefed under an issue controls over how the = issue=20 itself is phrased. See Miller v. State & County Mut. Fire = Ins.=20 Co., 1 S.W.3d 709, 712 (Tex. App.--Fort Worth 1999, pet. = denied) (in=20 considering brief that identified four issues presented, but that = briefed=20 only two of those issues, declining to address two issues that = were not=20 discussed in brief's argument section); see also Tex. R. = App. P.=20 38.1(h) ("The brief must contain a clear and concise argument for = the=20 contentions made, with appropriate citations to authorities and to = the=20 record."). In any event, even if Pickelner's third issue could be = read to=20 include a challenge that the trial court erred by not = enforcing=20 the settlement agreement, we would overrule that challenge for the = reasons=20 stated in the discussion of that issue in Hurwitz's appeal.=20

3. See Tex. R. Civ. P. 11.=20

4. A variation of this constructive-trust = scenario=20 occurs when the devisee is a fiduciary or confidant, the testator=20 justifiably relies on a secret trust agreement, and the devisee = breaches=20 the secret trust agreement by refusing to convey the property = after the=20 testator's death: because the fiduciary's breach of secret-trust = agreement=20 constitutes a breach of confidence, a constructive-trust remedy = can be=20 imposed in favor of the intended beneficiary, even without a = showing that=20 the devisee committed fraud in the agreement's inducement. See = Mills=20 v. Gray, 147 Tex. 33, 39, 210 S.W.2d 985, 988 (1948) ("'A=20 constructive trust arises where a conveyance is induced on the = agreement=20 of a fiduciary or confidant to hold in trust for a reconveyance or = other=20 purpose, where the fiduciary or confidential relationship is one = upon=20 which the grantor justifiably can and does rely and where the = agreement is=20 breached, since the breach of the agreement is an abuse of the = confidence,=20 and it is not necessary to establish such a trust to show fraud or = intent=20 not to perform the agreement when it was made.'") (quoting 54 Am. = Jur.=20 178, =A7 233)); see also Rankin v. Naftalis, 557 = S.W.2d 940,=20 944 (Tex. 1977); Leigh v. Weiner, 679 S.W.2d 46, 49 (Tex. = App.--Houston [14th Dist.] 1984, no writ).=20

5. After Shirley executed her will, the = Probate Code=20 was amended to provide that "a devise or bequest of property in a = will is=20 void"--without qualification concerning of the amount of the = bequest--if=20 made to "an attorney who prepares or supervises the preparation of = a=20 will." Tex. Prob. Code Ann. =A7 58b(a)(1) (Vernon 2007). = However,=20 section 58b does not apply to wills, like Shirley's, executed = before its=20 effective date. See Act of May 30, 1997, 75th Leg., R.S., = ch.=20 1054, =A7 2, 1997 Tex. Gen. Laws 4016, 4016.=20

6. See=20 Tex. Disciplinary R. Prof'l Conduct 1.08(b) (2005), reprinted = in=20 Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (Vernon 2005) = (Tex. State=20 Bar R. art. X, =A7 9).=20

7. Hurwitz urges this Court to adopt the = rule from the=20 Restatement (Third) of Trusts that, when the will contains a = semi-secret=20 trust, the intended beneficiaries of the semi-secret trust, rather = than=20 the heirs, receive the intended bequest under the remedy of a = constructive=20 trust. See Restatement (Third) Trusts =A7 18(1) = (2003) &=20 cmt. c. We decline to adopt this rule--which, incidentally, the = same=20 Restatement reveals is the minority rule in America, see = id. cmt.=20 c, see also = Gerry=20 Beyer, 10 Texas Practice Series =A7=A7 45.2, 45.3 (3rd = ed.)--because = it runs=20 contrary to the rule followed in Texas for 115 years. See,=20 e.g., Heidenheimer v. Bauman, 84 Tex. 182, 19 S.W. = 382,=20 383-84 (1892).

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