Victor C. Ulmer and Neal S. Ulmer v. Lynn Ulmer, Individually and as Independent of the Estate of Craddock Marion Ulmer

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00429-CV
___________________________

VICTOR C. ULMER AND NEAL S. ULMER, Appellants

V.

LYNN ULMER, INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE
ESTATE OF CRADDOCK MARION ULMER, DECEASED, Appellee

On Appeal from the 43rd District Court
Parker County, Texas
Trial Court No. CV13-1000

Before Birdwell, Womack, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION

I. INTRODUCTION

This appeal arises from a protracted dispute between three brothers—

Appellants Victor Ulmer and Neal Ulmer and Appellee Lynn Ulmer1—regarding the

distribution of their parents’ respective estates. When Lynn sought to probate their

father’s will, Victor and Neal contested the will and alleged that their father had lacked

testamentary capacity and that Lynn had exerted undue influence. In an attempt to

resolve their conflict, the three brothers entered into a mediated settlement agreement

(MSA)—which now serves as the very source of their continued strife and of this suit.

Nearly a year after the MSA was executed, Lynn sued Victor and Neal for their

breach of the MSA, and he prevailed in a partial summary judgment and subsequent

bench trial. Victor and Neal bring this appeal and raise eleven issues. They complain

that the trial court erred in (1) its interpretation of the MSA and ruling on evidentiary

matters and (2) its summary judgments and final judgment. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

The parties’ parents, Craddock Ulmer and Ollie Ulmer, were married, and each

owned an undivided separate property interest in an approximately 4,200-acre ranch

(the Ranch) in Erath County. They had three children: Victor, Neal, and Lynn. Ollie

1
The appellants and appellee are brothers who share a common surname. To
avoid confusion, we will refer to them by their given names.

2
died testate in 1970, devising a life estate in her interest in the Ranch2 to Craddock,

and devising the remainder to their sons equally. In 2002, Craddock executed a will3

that devised the entire residue of his estate to Lynn, which included his separate

interest in the Ranch.

Craddock died in 2010. At the time of his death, Craddock owned his

undivided interest in the Ranch,4 an art collection, and other personal property. Lynn

filed Craddock’s 2002 will for probate, and Victor and Neal challenged the validity of

the will on the grounds that Craddock had lacked testamentary capacity and that he

had been unduly influenced to execute the will. In 2014, the brothers mediated their

dispute and entered into an MSA that resolved “all issues relating to Craddock

Ulmer’s Estate and any other issues between and among the parties.” As part of the

MSA, Victor and Neal nonsuited their contest of Craddock’s 2002 will. After the

parties entered into the MSA, the trial court approved the MSA and admitted the will

to probate in 2016. The MSA contained the following relevant provisions:

• “The parties acknowledge that upon Craddock[’s] . . . death all except
Craddock[’s] . . . separate real property vested in his three sons
equally.”

2
Ollie’s interest in the Ranch was approximately 2,500 acres.
3
In 2005, within a dispute over the guardianship of Craddock, the brothers
entered into a family settlement agreement (FSA) in which they agreed that Craddock
had been competent to “manage his own affairs” at the time that he executed his 2002
will.
4
Craddock’s interest in the Ranch was approximately 1,700 acres.

3
• “The parties agree that the Will Contest filed by [Victor] Ulmer and
Neal Ulmer shall be dismissed and Lynn Ulmer shall be appointed
Executor of the Estate of Craddock Marion Ulmer subject to the
terms of this agreement.”

• “Neal Ulmer and [Victor] Ulmer release Lynn Ulmer of any and all
claims, known or unknown which were or could have been asserted
in the above-referenced cause number [i.e., the will-probate case].”

• “The parties agree that Lynn Ulmer will be named the Executor of
the Estate of Craddock Ulmer and [Victor] Ulmer and Neal Ulmer
relinquish all claims to the Estate of Craddock Ulmer, save and
except the real estate mentioned herein and the artwork mentioned
hereinafter.”

• “Six hundred (600) acres roughly described in Exhibit A attached
hereto will be sold as quickly as possible and the proceeds will be
split one third, one third, one third among [Victor] Ulmer, Neal
Ulmer and Lynn Ulmer.” Lynn would have a right of first refusal to
those 600 acres, and Neal and Victor had sole signature authority to
sell the 600 acres.

• Lynn would lease the entire Ranch (subject to the sale of the 600
acres) for three years at $25,000 per year, with the rent payment to be
divided equally between Neal and Victor. The lease would
“specifically release the 600 acres” if they were purchased by
someone other than Lynn.5

• Lynn would have a three-year option “to purchase the remaining
portion of the [R]anch (approximately 3600 acres)” at an agreed-
upon price.

• During the three-year lease, the parties would split the oil and gas
income equally.

5
Although not entirely clear, it appears that the parties anticipated that Lynn
would arrange for cattle to be kept on the property to earn income and would
maintain the agriculture property-tax exemption.

4
• Each party would pay one-third of the ad valorum taxes.

• Each party would receive one-third of the proceeds from the sale of
Craddock’s artwork.

In 2017, Lynn sued Victor and Neal for declaratory relief and breach of the

MSA, alleging that they had failed to reimburse him for certain taxes and expenses

and failed to execute a lease. Victor and Neal countersued, requesting declaratory

relief, contesting Craddock’s 2002 will and Lynn’s executorship, and raising a number

of claims including breach of the MSA and breach of fiduciary duty. Victor and Neal

contended that the MSA had divided Craddock’s separate property—including the

Ranch—into equal thirds for each brother. In 2019, the brothers filed competing

motions for partial summary judgment.

Lynn asked the trial court to declare, among other things, that the MSA did not

award Victor and Neal each a one-third interest in Craddock’s portion of the Ranch

and that they had breached the MSA by not executing a lease and by not paying their

share of the taxes. Victor and Neal moved for the opposite declaration and

maintained that the MSA unambiguously divided Craddock’s interest in the Ranch

equally between the brothers.

In support of their motion, Victor and Neal offered draft lease agreements that

had been prepared by Lynn’s attorney, which agreements described the Ranch as

being owned in equal thirds between the brothers. Lynn objected that the draft leases

5
contained inadmissible hearsay and violated the parol-evidence rule. The trial court

sustained his objection and excluded the draft leases.

The trial court then granted Lynn’s motion, declaring that Victor and Neal did

not own any portion of Craddock’s undivided interest in the Ranch and finding that

they had breached the MSA by failing to pay their share of the taxes. Lynn moved for

summary judgment again, requesting, among other things, a declaration of the

percentage of ownership of Craddock’s undivided interest in the Ranch. Lynn asked

the trial court to declare that he had an approximately sixty-percent undivided interest

in the entire Ranch and that Victor and Neal each had an approximately twenty-

percent interest.6 The trial court granted that motion in part, declaring the brothers’

ownership interests as requested by Lynn.

The case proceeded to a bench trial where the issues remaining were

(1) whether Victor and Neal breached the MSA by failing to execute a lease, (2) the

amount of past-due taxes owed by Victor and Neal, and (3) Victor and Neal’s

counterclaim for breach of fiduciary duty. The trial court entered judgment entirely in

Lynn’s favor, ordering Victor and Neal to execute a lease and to pay their share of the

taxes and expenses, denying relief on their counterclaim, and awarding Lynn his

attorney’s fees.

6
The overall Ranch is made up of three tracts. Lynn contends that he has a
sixty-percent interest in the largest tract and a sixty-six and two-thirds interest in the
two smaller tracts.

6
The trial court made findings of fact and conclusions of law, and Victor and

Neal brought this appeal.

III. DISCUSSION

For ease of discussion, we consolidate Victor and Neal’s eleven issues into two

groups: (1) the MSA and evidentiary matters and (2) summary judgments and the final

judgment. The disposition of this appeal ultimately turns on our analysis of the MSA,

as that disposition resolves the complaints regarding the summary judgments and final

judgment as well.

A. THE MSA

In their first through third issues, Victor and Neal contend that the trial court

erred in its finding that the MSA was unambiguous. We disagree. In support of their

argument, Victor and Neal highlight several provisions of the MSA that provide for

equal thirds of Craddock’s estate between the brothers, such as sharing the Ranch’s

taxes, income, and profits. They contend that, when taken together, these provisions

demonstrate ambiguity in the MSA because it does not clearly settle each brothers’

interest in the Ranch. But Victor and Neal attempt to create ambiguity where there is

none.

1. Standard of Review and Applicable Law

Whether a contract is ambiguous is a question of law. Heritage Res., Inc. v.

NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). We review de novo the trial court’s

7
determination of whether a contract is ambiguous. URI, Inc. v. Kleberg Cty.,

543 S.W.3d 755, 763–64 (Tex. 2018).

“If the written instrument is so worded that it can be given a certain or definite

legal meaning or interpretation, then it is not ambiguous[,] and the court will construe

the contract as a matter of law.” Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). “A

contract is not ambiguous merely because the parties disagree about its meaning.”

URI, 543 S.W.3d at 763. “A contract is ambiguous when its meaning is uncertain and

doubtful or is reasonably susceptible to more than one interpretation.” Heritage Res.,

939 S.W.2d at 121.

In construing contract language, we do not look to what the parties subjectively

wish or hope the contract says and instead “interpret contract language according to

its ‘plain, ordinary, and generally accepted meaning’ unless the instrument directs

otherwise.” URI, 543 S.W.3d at 764. In other words, “[e]xtrinsic evidence cannot be

used to show that the parties probably meant, or could have meant, something other

than what their agreement stated.”7 First Bank v. Brumitt, 519 S.W.3d 95, 110

(Tex. 2017) (quoting Anglo–Dutch Petroleum Int’l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d

445, 451 (Tex. 2011)).

7
“When a court determines that a contract is ambiguous, the meaning becomes
a fact issue for the jury[,] and extraneous evidence may be admitted to help determine
the language’s meaning.” Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d
471, 480 (Tex. 2019).

8
2. No Ambiguity

Victor and Neal argue on various grounds that the trial court erred in its

finding that the MSA was unambiguous. They contend that the MSA’s silence

concerning each brother’s interest in the Ranch renders it ambiguous, and thus,

extrinsic evidence may be used to provide context for its terms.8 They further assert

that several provisions of the MSA “plainly supported [their] position that the Ulmer

Ranch was agreed in the MSA to be divided equally between the [three] brothers.”

Thus, at first blush, this case appears to turn on the minutiae of the MSA’s provisions

and the parties’ intent. Victor and Neal devote substantial briefing to seven

provisions of the MSA that they claim demonstrate ambiguity. But, for two reasons,

their argument lacks merit.

First, a written agreement is ambiguous only if “its meaning is uncertain and

doubtful or is reasonably susceptible to more than one interpretation”—it is not

ambiguous merely because it omits a topic that the parties hoped or wished it had

contained. Heritage Res., 939 S.W.2d at 121. Second, the MSA is devoid of any

resolution or language related to the distribution of the brothers’ interests in the

8
Victor and Neal assert that the trial court’s judgment erroneously stated that
“the parties had agreed that the MSA was unambiguous.” We note that Victor and
Neal filed a motion for traditional summary judgment on their request for declaratory
judgment, in which they “[requested] judicial interpretation of questions of law from
the unambiguous provisions of the Settlement Agreement.” They further maintained
that they were “entitled to summary judgment, because, pursuant to the clear
unambiguous terms of the Settlement Agreement, [they] [could] establish, as a matter
of law, each element of its causes of action.”

9
Ranch. Victor and Neal seek to import a provision—and ambiguity—that is absent

from the MSA. The MSA does not touch on Craddock’s interest in the Ranch, but

his 2002 will does.

In 2002, Craddock executed his will, devising the residue and remainder of his

estate to Lynn—including his undivided interest in the Ranch. Following Craddock’s

death in 2010, Lynn applied to probate the 2002 will, but Victor and Neal contested

the will, claiming that Craddock had lacked testamentary capacity and that Lynn had

exerted undue influence. In their opposition motion, Victor and Neal sought to

probate Craddock’s prior will from 1996, which devised the entirety of his estate’s

residue and remainder to Victor and Neal.9

Thus, at that point, all of the cards were on the table. Each brother was aware

of the two very different wills that were offered for probate. If Craddock’s 2002 will

was probated, Lynn would receive Craddock’s separate property, including all of his

undivided interest in the Ranch.

In July 2014, the three brothers executed the MSA, which contained several

agreements related to the Ranch. The MSA also explicitly addressed Victor and

Neal’s contest of Craddock’s 2002 will—they released Lynn from “any and all claims,

known or unknown” and permitted Lynn to seek probate of the 2002 will. In

exchange for Victor and Neal nonsuiting their will contest, they each would receive a

9
Craddock’s 1996 will appointed Victor and Neal as independent co-executors.

10
third of the Ranch’s oil and gas revenue as well as proceeds from the sale of 600 acres

and the artwork—benefits they would not have otherwise enjoyed under Craddock’s

2002 will. But nowhere in the MSA did it purport to reallocate title or define each

brother’s respective interest in the Ranch.

Pursuant to the MSA’s terms, Victor and Neal nonsuited their challenge to

probating the 2002 will, and in January 2016, the trial court approved the MSA,

admitted Craddock’s 2002 will to probate, and authorized issuance of letters

testamentary to Lynn.

A year after the MSA was approved and Craddock’s 2002 will was admitted to

probate, Lynn filed suit against Victor and Neal for their failure to pay their share of

the taxes and refusal to execute a lease of the Ranch. Lynn’s suit launched a second

wave of ligation—Victor and Lynn sought to rechallenge Craddock’s 2002 will and

relitigate their interests in the Ranch. However, their litigation attempted to (1) use

extrinsic evidence to create a nonexistent ambiguity in the 2002 will and (2) complain

of a released challenge to the 2002 will.

“[N]o issue regarding the parties’ intentions is raised unless the [contract] is

ambiguous—and evidence of those intentions cannot be used to create an ambiguity.” Nat’l

Union Fire Ins. Co. of Pittsburgh.PA v. CBI Industries, Inc., 907 S.W.2d 517, 521 n.5 (Tex.

1995) (emphasis added). Here, Victor and Neal attempted precisely the

impermissible—to inject ambiguity into the 2002 will based on their subjective

11
hopes.10 The language of the MSA not only contemplated—but agreed—that the

2002 will would be probated. The MSA provided that “if any provision of this

agreement conflicts with any provision of the Will of . . . Craddock Ulmer, the terms

of this agreement control” and that “[t]he parties agree that Lynn Ulmer will be

named the Executor of the Estate of Craddock Ulmer[,] and [Victor] Ulmer and Neal

Ulmer relinquish all claims to the Estate of Craddock Ulmer.”

Undeniably, because the MSA extended benefits to Victor and Neal that were

not in Craddock’s 2002 will, there are “conflicts” between the two instruments.

Specifically, under the 2002 will, Victor and Neal were not entitled to any oil and gas

revenue from Craddock’s interest in the Ranch nor to the proceeds from the sale of

his artwork. However, the MSA granted them such benefits, and per its provisions, it

would control. Yet, there is no conflict between the MSA and Craddock’s 2002 will

regarding the brothers’ respective ownership interests in the Ranch because the MSA

did not contain a provision commenting on the matter.

The four corners of the MSA reveal that the parties negotiated exclusively for

financial allocations—dividing the net proceeds from the sale of 600 acres, sharing tax

obligations, apportioning oil and gas revenue, and fixing a $25,000 lease payment to

10
Repeatedly, Victor and Neal point us to Victor’s affidavit that stated he
“unequivocally understood the Settlement Agreement to result in a three-way split of
all of the Ulmer Ranch property.” But again, in the absence of such language in the
MSA, his subjective wish or hope of its contents is of no consequence. URI,
543 S.W.3d at 764.

12
Victor and Neal—but did not purport to alter Craddock’s testamentary disposition of

his real-property interest in the Ranch. The MSA thus provides contractual rights to

proceeds and use of the Ranch but does not change the interests in the land itself.

Victor and Neal concede that “they could not identify language in the MSA that

explicitly divided the Craddock Ulmer property in equal thirds.” Indeed, no

provision—even obliquely—addresses the Ranch’s division.

Victor and Neal may have wished or even thought that the MSA equally

divided the Ranch, but it did not do so, and we cannot look to their subjective wishes

or desires.11 The language of the MSA does not address the division of interests in

the Ranch, and it cannot be retroactively reformed to align with Victor and Neal’s

now-expressed wishes. The MSA’s plain language carves out only financial benefits

for Victor and Neal—it does not rewrite Craddock’s 2002 will, which devised his

interest in the Ranch to Lynn.

Because the MSA cannot be read to somehow raise the issue of the Ranch’s

ownership interests and does not conflict with the terms of the 2002 will, we conclude

that the MSA’s wording can be given a definite or certain legal meaning. URI,

543 S.W.3d at 765. Therefore, we hold that the MSA is unambiguous, and we

11
Victor and Neal contend that it is outlandish and nonsensical for them to
have agreed to pay property taxes on land that they do not own. However, we note
that in exchange for agreeing to pay taxes on the Ranch, they would each receive a
third of the oil and gas revenue as well as the proceeds from the sale of 600 acres and
Craddock’s artwork.

13
overrule Victor and Neal’s first, second, and third issues. Heritage Res., 939 S.W.2d

at 121.

3. Exclusion of Evidence

Interrelated with our ambiguity analysis are Victor and Neal’s fifth and sixth

issues in which they challenge the trial court’s exclusion of the draft lease agreements.

Our holding that the MSA is unambiguous is dispositive of these issues.

We review a trial court’s decision to exclude or admit summary judgment

evidence for an abuse of discretion. See Blake v. Dorado, 211 S.W.3d 429, 431–32 (Tex.

App.—El Paso 2006, no pet.). A trial court abuses its discretion if it acts without

reference to any guiding rules or principles—that is, if its act is arbitrary or

unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). We must uphold the

trial court’s evidentiary ruling if the record shows any legitimate basis for the ruling.

Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).

As we discussed above, “[o]nly where a contract is first determined to be

ambiguous may the courts consider the parties’ interpretation . . . and admit

extraneous evidence to determine the true meaning of the instrument.” Nat’l Union

Fire Ins. of Pittsburgh, 907 S.W.2d at 520. “[N]o issue regarding the parties’ intentions is

raised unless the [contract] is ambiguous—and evidence of those intentions cannot be

used to create an ambiguity.” Id. at 521 n. 5.

Here, Victor and Neal sought to introduce the draft leases in an effort to

demonstrate that the MSA intended for Craddock’s interest in the Ranch to be

14
divided into equal thirds among the brothers. Because the MSA was not ambiguous,

the extrinsic evidence of intent was inadmissible. See id. at 520–21.

Moreover, in its findings of fact, the trial court found that “the drafts of the

leases are not relevant to issues of ownership of portions of the Ulmer Ranch.” We

agree. Because the MSA does not touch on the brothers’ interests in the Ranch, we

do not see how the draft leases are relevant. Owens-Corning Fiberglas Corp., 972 S.W.2d

at 43.

We conclude that because the MSA is unambiguous, the trial court’s decision

to exclude the draft leases—as extrinsic evidence to show what the parties could have

meant—was not arbitrary or unreasonable. Low, 221 S.W.3d at 614. Accordingly, we

hold that the trial court did not abuse its discretion in excluding the draft leases, and

we overrule Victor and Neal’s fifth and sixth issues.

B. JUDGMENTS

Victor and Neal’s fourth and seventh through eleventh issues challenge the trial

court’s judgments. In issues four and eight, they complain of the trial court’s

summary judgments on Lynn’s claims. In issue seven, they complain of the trial

court’s summary judgment rejecting their counterclaims. In issues nine, ten, and

eleven, they attack the trial court’s final judgment. Once again, our holding that the

MSA is unambiguous shapes this analysis, and we disagree with Victor and Neal on

each of these issues.

15
1. Standard of Review and Applicable Law

We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d

860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable

to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors

could and disregarding evidence contrary to the nonmovant unless reasonable jurors

could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848

(Tex. 2009). We indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff

is entitled to summary judgment on a cause of action if it conclusively proves all

essential elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710

S.W.2d 59, 60 (Tex. 1986).

In a traditional summary-judgment case, the issue on appeal is whether the

movant met the summary-judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, 289 S.W.3d at 848.

2. Summary Judgments on Lynn’s Claims

Victor and Neal’s fourth and eighth issues challenge the trial court’s two

summary judgments on Lynn’s claims. They contend that the trial court erred by

unevenly dividing the Ranch in an approximately 60-20-20 split.

In the trial court’s April 2019 summary-judgment order, it found that Victor

and Neal were each entitled to one-third of the proceeds from the sale of 600 acres of

16
the Ranch but that Lynn had a one-hundred-percent interest in Craddock’s estate. In

the trial court’s second summary-judgment order in April 2021, it identified the

different tracts of land that comprise the Ranch and determined each brother’s

ownership interest for the three individual tracts.

In their fourth issue, Victor and Neal challenge the trial court’s division of the

Ranch into unequal proportions. They contend that they raised an issue of fact and

that summary judgment was improper. In support of their position, they point us to

their evidence. Victor and Neal offered, among other things, the draft leases as well

as affidavits that contained Victor and Neal’s interpretation of what the MSA was

supposed to have said in an attempt to “clarify the intent of the parties” in the MSA.

First, as we held above, because the MSA is unambiguous, the draft leases

could not be used as evidence to inject ambiguity or supply terms not contained

within the MSA.12 Nat’l Union Fire Ins. of Pittsburgh, 907 S.W.2d at 521 n.5. Second,

Victor and Neal’s belief of what the MSA should have said is not proper summary

judgment evidence. See First Bank, 519 S.W.3d at 110.

Here, after determining that the MSA was unambiguous, the trial court found

that—not excluding the financial benefits provided for in the MSA—Lynn was

entitled to one-hundred percent of Craddock’s estate as prescribed by the 2002 will.

12
Victor and Neal emphasize that Lynn also moved to admit the draft leases;
however, Lynn offered the draft leases as evidence of Victor and Neal’s breach of
failing to sign the lease agreements—not as evidence to clarify, modify, or change the
MSA.

17
We conclude that because the MSA is unambiguous, Victor and Neal’s summary-

judgment evidence does not raise a fact issue as to the trial court’s April 2019

summary-judgment order. Therefore, we hold that the trial court did not err in its

April 2019 summary judgment as it pertains to each brother’s interest in Craddock’s

estate.

Next, in their eighth issue, Victor and Neal complain of the trial court’s

April 2021 summary-judgment order that declared the percentage ownerships of the

Ranch’s various tracts. They contend that “[t]his second order relied on the findings

of the first, and as such must stand or fall on the validity of the original

summary[-]judgment order.” We agree that the April 2021 summary-judgment order

was based on the initial summary-judgment order from April 2019 and that this issue

is resolved by our above holding.

In its April 2019 summary-judgment order, the trial court stated that Lynn had

a one-third interest in Ollie’s estate and a one-hundred-percent interest in Craddock’s

estate. The percentages that the trial court provided in its April 2021 summary-

judgment order merely take the April 2019 summary judgment’s percentages and

apply them to the land survey and the tracts of land that comprise the Ranch.

Having held that the trial court did not err in its April 2019 summary-judgment

order providing each brother’s interest in the Ranch, we conclude that it did not err

when it used those interests to determine the ownership percentages, for each party,

to the Ranch’s various tracts. For the same reasons enunciated in our discussion of

18
the April 2019 summary-judgment order, Victor and Neal have not brought forth

evidence that raises an issue of fact related to the trial court’s April 2021 summary-

judgment order. Therefore, we hold that the trial court did not err in its April 2021

summary-judgment order as it pertains to each brother’s ownership interest in the

Ranch’s three tracts. Accordingly, we overrule Victor and Neal’s fourth and eighth

issues.

3. Summary Judgment on Victor and Neal’s Counterclaims

We next discuss Victor and Neal’s seventh issue, which contains two subparts.

First, they contend that the trial court erred by granting Lynn summary judgment on a

number of their counterclaims where they raised genuine issues of material fact.

Second, they argue that the trial court erred when it failed to grant relief on their

counterclaim for breach of fiduciary duty. We disagree with both subparts of this

issue.

The first subpart challenges the trial court order granting Lynn’s motion for

summary judgment on a number of Victor and Neal’s counterclaims, including

(1) partitioning and distributing Craddock’s estate, (2) removing Lynn as independent

executor of Craddock’s estate, and (3) revoking Lynn’s letters testamentary.13 All

three counterclaims were governed by the Estates Code and required Victor and Neal

to qualify as “interested person[s].” Tex. Est. Code Ann. § 22.018(1).

Victor and Neal brought eight counterclaims, but on appeal, they only
13

complain regarding the three listed.

19
A person who is entitled to a portion of the estate property may sue an

executor who neglects, when demanded, to deliver that portion of the estate to the

beneficiary. See id. § 360.001(a). A trial court may remove an executor on the

complaint of any interested person. See id. § 361.052(a). The Texas Estate Code

defines an “interested person” as “an heir, devisee, spouse, creditor, or any other

having a property right in or claim against an estate being administered.” See Tex. Est.

Code Ann. § 22.018(1).

Here, as we discussed above, in exchange for the financial benefits outlined in

the MSA, Victor and Neal nonsuited their contest to Craddock’s 2002 will and

released any claims to his estate. The trial court’s April 2019 summary-judgment

order ruled that Lynn was the sole beneficiary of Craddock’s estate. Thus, except for

the financial benefits provided for in the MSA, Victor and Lynn had no interest in

Craddock’s estate, and they were not “interested person[s].”14 Therefore, because

they were not “interested person[s]” in Craddock’s estate, they had no standing to sue

for partition and distribution of the estate, removal of the executor, or revocation of

letters testamentary. See id. §§ 360.001(a), .052(a). Because they lacked standing to

pursue these claims, we conclude that summary judgment on these three claims was

proper.

14
A complaint regarding the distribution of the 600 acres would arise from a
breach of contract under the MSA—not Craddock’s 2002 will. Thus, despite the
benefits they received under the MSA, Victor and Neal have not shown how they are
interested persons under the 2002 will.

20
We next address Victor and Neal’s counterclaim for Lynn’s alleged breach of

fiduciary duty—the second subpart of their issue. This counterclaim was disposed of

by the trial court’s final judgment—not by Lynn’s motion for summary judgment.

Victor and Neal bore the burden of proof that Lynn breached a fiduciary duty.

A claim for breach of fiduciary duty requires proof of (1) the existence of a fiduciary

duty, (2) breach of the duty, (3) causation, and (4) damages. First United Pentecostal

Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017).

Victor and Neal complain of the trial court’s “failure to provide relief” on their

counterclaim, which we construe as an assertion that the overwhelming weight of the

evidence entitled them to relief.15

When a party attacks the legal sufficiency of an adverse finding on an issue on

which the party had the burden of proof, the party must demonstrate on appeal that

the evidence establishes, as a matter of law, all vital facts in support of the issue. Cath.

Diocese of El Paso v. Porter, 622 S.W.3d 824, 834 (Tex. 2021). In reviewing a “matter of

law” challenge, we must first examine the record for evidence that supports the

15
Victor and Neal do not articulate what relief was requested or why they were
entitled to judgment on the counterclaim. Cf. Tex. R. App. P. 38.1(i) (requiring
appellant’s brief to “contain clear and concise argument for the contentions made”).
Lynn argues that Victor and Neal have inadequately briefed this issue’s subpart
because their brief does not satisfy briefing requirements but instead makes
conclusory statements unsupported by citation to legal authorities. See Tex. R. App.
P. 38.1(i) (requiring appellant’s argument to contain “appropriate citations to
authorities and to the record”). However, in an attempt to reach the merits of this
issue’s subpart, we will address the legal and factual sufficiency of the trial court’s
judgment against their claim for breach of fiduciary duty.

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finding while ignoring all evidence to the contrary. Dow Chem. Co. v. Francis,

46 S.W.3d 237, 241 (Tex. 2001).

When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing all

the pertinent record evidence, we determine that the credible evidence supporting the

finding is so weak, or so contrary to the overwhelming weight of all the evidence, that

the finding should be set aside and a new trial ordered. Pool v. Ford Motor Co.,

715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176

(Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

Victor and Neal did not establish each and every element of their claim for

breach of fiduciary duty as a matter of law. Cath. Diocese of El Paso, 622 S.W.3d at 834.

At trial, Neal testified that Lynn had sole possession of the Ranch from 2016 until

2021. Neal explained that Lynn had prevented him from accessing the Ranch and

that Lynn had failed to collect lease payments from tenants who were using the

Ranch. However, even if we construe Lynn’s conduct as a “breach,” Lynn’s alleged

refusal to allow Neal access to the Ranch and his failure to collect rent from the

Ranch’s tenants is unaccompanied by evidence of Victor and Neal’s damages. They

do not identify the damages, the amount of damages, or how any damages were to be

22
calculated.16 See First United Pentecostal Church of Beaumont, 514 S.W.3d at 220; see also

Cath. Diocese of El Paso, 622 S.W.3d at 834.

We conclude that there was legally insufficient evidence of Victor and Neal’s

breach of fiduciary duty claim. Because there is legally insufficient evidence, we

conclude that there is likewise factually insufficient evidence. See Pool, 715 S.W.2d at

635. Accordingly, because Victor and Neal presented legally and factually insufficient

evidence for their counterclaim of breach of fiduciary duty, we hold that the trial

court did not err in its judgment as to that counterclaim, and we overrule their

seventh issue.

4. Final Judgment

Victor and Neal’s ninth through eleventh issues—complaints of the final

judgment—are just another attempt at challenging the trial court’s summary

judgments and determination of the brothers’ interests in the Ranch.17 Issues nine

through eleven are resolved by our holdings on the trial court’s summary judgments.

16
We note that in exchange for Lynn leasing the entire Ranch, he had to pay
Victor and Neal a sum of $25,000. However, the MSA does not contain a provision
that Victor and Neal would share in any income or profits that Lynn may receive
from leasing the Ranch to third parties.
17
After the summary-judgment rulings, the only remaining issues at trial were
(1) whether Victor and Neal breached the MSA by failing to provide a lease, (2) the
amount of past-due taxes owed by Victor and Neal, and (3) Victor and Neal’s
counterclaim for breach of fiduciary duty. We addressed Victor and Neal’s
counterclaim above, and they do not challenge the trial court’s findings regarding the
amount of past-due taxes or its findings that they breached the MSA by failing to
provide a lease nor the amount of past-due taxes that they owed. Thus, their

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Having held that the trial court’s summary judgments were not erroneous, we

likewise hold that its final judgment was not erroneous. Accordingly, we overrule

Victor and Neal’s ninth, tenth, and eleventh issues.

IV. CONCLUSION

Having overruled Victor and Neal’s eleven issues, we affirm the trial court’s

judgment.

/s/ Brian Walker

Brian Walker
Justice

Delivered: August 14, 2025

challenge to the final judgment is limited to their contention that it was based on
improper summary judgments.

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