Albert Hill, III v. Tom Hunt, et al

Filing

UNPUBLISHED OPINION FILED. [13-10939 Affirmed] Judge: JES , Judge: EBC , Judge: ECP. Mandate pull date is 09/11/2014 [13-10939]

Case: 13-10939

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Date Filed: 08/21/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-10939
Summary Calendar

FILED
August 21, 2014
Lyle W. Cayce
Clerk

ALBERT G. HILL, III, Individually, and as a Beneficiary of the Margaret
Hunt Trust Estate, derivatively on behalf of the Margaret Hunt Trust Estate,
Individually, as a beneficiary of the Haroldson Lafayette Hunt Jr. Trust
Estate and derivately on Behalf of the Haroldson,
v.

Plaintiff – Appellant

WILLIAM SCHILLING, Individually and In His Capacity as a Member of the
Advisory Board MHTE and a Member of the Advisory Board of the HHTE;
IVAN IRWIN, JR.; ALBERT G. HILL, JR.; ALINDA H. WIKERT; LYDA
HILL; HEATHER V. WASHBURNE; ELISA M. SUMMERS; WILLIAM
HERBERT HUNT, In His Capacity as the Personal Representative of the
Estate of Tom Hunt; BRETT RINGLE, Individually and in His Capacity as a
Member of the Advisory Board of the MHTE; MARGARET KELIHER,
Individually and in Her Capacity as Trustee of the MHTE and a Member of
the Advisory Board of the HHTE,
Defendants – Appellees
v.
Campbell Harrison & Dagley, L.L.P.; Calloway, Norris, Burdette, & Weber,
P.L.L.C.,
Intervenors – Appellees

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No. 13-10939
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CV-2020
Before SMITH, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Albert G. Hill III (“Hill”) appeals the district court’s denial of his motion
to enforce the settlement agreement and compel production of copies of the
books and records. For the following reasons, we AFFIRM.
FACTS AND PROCEEDINGS
In 1935, H.L. Hunt formed irrevocable trusts for six of his children. Two
of those trusts give rise to this lawsuit: the Margaret Hunt Trust Estate
(“MHTE”) and the Haroldson L. Hunt, Jr. Trust Estate (“HHTE”). The Articles
of Agreement and Declaration of Trust creating each of the MHTE and the
HHTE were essentially identical.
Margaret Hunt Hill was the beneficiary of the MHTE. Ordinarily the
MHTE would pass to Margaret’s three children. But before her death her son,
Albert G. Hill Jr. (“Hill Jr.”), executed an instrument disclaiming his interest
to his three children, including Hill. Hill Jr. later rescinded the disclaimer,
purporting he was incompetent when he signed the disclaimer in 2005 and an
“updated” disclaimer in 2007.
On November 8, 2007 Hill filed a suit in Texas state court against his
father, Hill Jr., alleging that he and others committed violations of the federal

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

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Racketeer Influenced and Corrupt Organizations Act (“RICO”), fraud, breach
of fiduciary duty, and other torts in connection with the MHTE and HHTE.
Hill sought different forms of relief, including enforcement of his father’s
disclaimer, a declaration that he was a beneficiary of both the MHTE and
HHTE, monetary damages, and an accounting of both trusts. The Defendants,
Hill Jr. and the others associated with the RICO claims, removed the action to
the United States District Court for the Northern District of Texas.
During the almost three years of litigation, in which exhaustive
discovery occurred, the MHTE’s trustee produced thousands of financial and
accounting documents. After years of litigation, Hill and the former MHTE
and HHTE trustees entered into a written Global Settlement and Mutual
Release Agreement (“settlement agreement”), filed with the district court on
May 14, 2010. The settlement agreement divided the MHTE, pro rata, into
separate sub-trusts for all beneficiaries, including Hill. Each sub-trust was to
be separately administered by a new successor trustee; the successor trustees
were to administer according to the 1935 Articles of Agreement of the MHTE.
The Articles of Agreement of the MHTE state the duties of the trustee,
who, among other things, is required to
keep, or cause to be kept, faithful records and books of account,
reflecting at all times the true conditions of the affairs of said
Trust Estate, which said records and books of account shall at
all times be open for the inspection of the other two members
of the Advisory Board, and as near after the close of each
calendar year as is reasonably possible the Trustee shall have
said books and records audited by a Certified Public
Accountant and a report of said audit files as a part of the
archives and permanent records of said Trust Estate . . . .
Further, the Articles state that when a trustee is replaced, the successor
trustee “shall succeed to the same rights and powers and be subject to the same
duties and liabilities of his predecessor.”
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The settlement agreement does not require the former MHTE trustees
to hand over any additional MHTE documents to any beneficiary or successor
trustee of the MHTE New Hunt Trusts, and specifically prohibits the successor
trustees from investigating the prior management of the MHTE trustees.
Before the district court entered its final judgment, both parties submitted
final judgment proposals. Hill attempted to add new terms to the agreement.
Namely, he sought to have the agreement require the MHTE trustee and
advisory board members to grant complete access to MHTE’s books and records
for inspection by Hill and/or his representatives.

In November 2010, the

district court approved the settlement agreement, rejected Hill’s new terms,
adopted a provision prohibiting any new trustees from investigating past
conduct, provided for broad general mutual releases, and entered final
judgment.
In December 2010, the former trustees of the MHTE divided the MHTE
into separate trusts in accordance with the settlement agreement and final
judgment. After the district court rejected Hill’s request to alter or amend the
final judgment to request the former MHTE trustees to give an accounting for
the period of May to December 2010, Hill filed an appeal to this court alleging
that the final judgment differed from the settlement agreement.

In the

meantime, Hill learned that the district judge, who presided over the case since
2007, had an undisclosed conflict of interest due to his wife’s ownership of stock
in ExxonMobil Corporation. Hill moved to recuse this judge in March 2012.
The district court denied this motion, and Hill appealed the denial to this court.
This court consolidated the two issues and affirmed the district court.
While the previous appeal was pending, Hill filed a motion to enforce the
final judgment and to compel the transfer of books and records of the former
MHTE to successor trustees or, in the alternative, for relief from final
judgment under Rule 60(b) in the district court. Hill admitted that this motion,
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filed before his motion to recuse the district judge, was aimed at obtaining
copies of the books and records of Hunt Petroleum, an entity later acquired by
Exxon. His motions were thus aimed at uncovering evidence in support of his
recusal motion. His motion to enforce final judgment also contradicted his
previous position, that the final judgment did not grant him access to inspect
the MHTE books and records. The motion to enforce and compel was denied
by a magistrate judge, due to the pending motion to recuse. The case was
reassigned to a second district judge, who also rejected Hill’s objections to the
magistrate judge’s ruling, finding that neither the settlement agreement nor
the final judgment required the production of books and records of the former
MHTE for inspection. The court emphasized that the initial district judge had
previously rejected adding Hill’s provision to require the accounting or
inspection rights to the final judgment.

He also denied Hill’s alternative

request under Federal Rule of Civil Procedure 60(b). After the issuance of this
order, the second district judge recused himself sua sponte.
Hill appeals the denial of the motion to enforce and compel and files a
complaint speculating about the second district judge’s reason for recusing
himself after denying Hill’s motion to enforce and compel.
STANDARD OF REVIEW
The principal issue on appeal is whether the successor trustees have a
right to obtain copies of the “archives and permanent records” of the MHTE
based on the MHTE’s Articles of Agreement, the settlement agreement, and
the final judgment.

Trust agreements and settlement agreements are

interpreted as contracts. Goldin v. Bartholow, 166 F.3d 710, 715 (5th Cir.
1999); In re Raymark Indus., Inc., 831 F.2d 550, 553 (5th Cir. 1987). The
construction of an unambiguous contract is a question of law, which we review
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de novo. Guidry v. Halliburton Geophysical Servs., Inc., 976 F.2d 938, 940 (5th
Cir. 1992).
To determine whether reversal or vacation of a district judge’s sua sponte
recusal is necessary, we consider the risk (1) of injustice to the parties in this
case; (2) that denial of relief will create injustice in other cases; and (3) of
undermining the public’s confidence in the judicial process. Patterson v. Mobil
Oil Corp., 335 F.3d 476, 485 (5th Cir. 2003).
DISCUSSION
I.

Right to Access and Copy Records
Appellees, the former MHTE and HHTE trustees, contend that the

waiver doctrine precludes Hill from appealing the district court’s denial of his
motion to enforce and compel. “The [waiver] doctrine promotes procedural
efficiency and ‘prevents the bizarre result that a party who has chosen not to
argue a point on a first appeal should stand better as regards the law of the
case than one who had argued and lost.’” Lindquist v. City of Pasadena, 669
F.3d 225, 239-40 (5th Cir. 2012).
As noted above, Hill requested that complete access to the MHTE’s books
and records be added as a term to the settlement agreement. The district court
rejected Hill’s proposed amendment and entered final judgment, which we
affirmed in Hill’s first appeal. To the extent that Hill’s appeal argues that the
right to have access to the documents should have been included in the final
judgment, or that it was contemplated in the settlement agreement, his
argument is waived.
But Hill restyles the current appeal as one challenging the district
court’s denial of his motion to enforce and compel the final judgment. While
his prior appeal argued that a right to access the documents was wrongfully
excluded from the settlement agreement, he now contends that the right to
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inspect and have access to the books is part of the agreement, and that he is
merely seeking enforcement of the final judgment.

As such, the waiver

doctrine does not preclude Hill’s current appeal. Nonetheless, Hill’s challenges
to the district court’s denial of his motion to enforce and compel are without
merit.
We hold that Hill cannot now claim that a provision granting him access
to the MHTE books and records is part of the agreement because such a
provision was not actually contemplated by the parties.

“As long as the

[settlement and trust] as a whole [are] coherent, ambiguities can be resolved
as a matter of law, without looking beyond the four corners of the document.”
Carpenters Amended and Restated Health Benefit Fund v. Holleman Constr.
Co., 751 F.2d 763, 766 (5th Cir. 1985). The duty of the MHTE trustee to keep
books and records was extended to the MHTE successor trustees, as stated in
plain language from the MHTE Articles of Agreement. But there is no express
language that indicates that the successor trustee must be given the same set
of books, records, and archives maintained by the former trustees. Nothing in
the record indicates that the parties think that the agreement is ambiguous on
this point. Indeed, that Hill tried to add a provision granting him access to
MHTE’s books and records is evidence that he knew such a provision was not
part of the final judgment and settlement agreement as written.
Hill contends that Texas law mandates his ability to access MHTE’s
books and records. Texas statutory law does not require such a result. Hill
relies on a section of the Texas code that states that “[u]nless otherwise
provided in the trust instrument or by order of the court appointing a successor
trustee, the successor trustee has the rights, powers, authority, discretion, and
title to trust property conferred on the trustee.” Tex. Prop. Code § 113.084.
But he does not cite to any authority to support his position that courts
interpret this statutory language to compel his access to MHTE documents on
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these facts. And even accepting Hill’s interpretation of Texas law, the district
court “otherwise provided” that Hill would not be able to access MHTE’s
documents by entering final judgment on a settlement agreement that
consciously excluded such a right.
Finally, Hill cites to Texas Property Code § 112.057, arguing that Texas
law permits a trustee to divide a trust only if the terms of the separate trusts
are identical to the terms of the original trust. It follows, he claims, that
because the former trustees had access to these records, the successor trustees
should also have access because the successor trustees step into the role of the
former trustees. This argument fails. First, Hill downplays the amount of
documents received during discovery, including financial statements from
KPMG. Second, the statutory language crucial to Hill’s argument is not found
in the applicable 2010 version of § 112.057. The language he relied on, that
“the terms of the separate trusts must be identical to the terms of the original
trust” is not present in the relevant 2010 version of Texas Property Code
§ 112.057, but rather was part of the 2005 version. Finally, § 112.054(b)
provides that “[t]he court shall exercise its discretion to order a modification or
termination . . . in the manner that most conforms as nearly as possible to the
probable intention of the settlor.” This section also does not expressly state or
infer that the MHTE Articles of Agreement require the former trustees to give
the successor trustees access to the permanent records. Because Texas law
does not require a different result, we decline to modify the district court’s final
judgment enforcing a settlement agreement that consciously excluded Hill’s
right to access MHTE’s books and records.
II.

Recusal and Undisclosed Conflict
In the alternative, Hill contends that because the second district judge

recused himself two months after his only substantive ruling, and because no
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new parties or causes of action were added, the judge’s conflict existed at the
time of his order. Hill argues that we should remand the case because his
recusal following his substantive order meant that he made his ruling under
an “undisclosed conflict.” We disagree.
First, Hill does not even attempt to identify what the conflict could be,
or why we should doubt the validity of his order. He recused himself sua sponte
under 28 U.S.C. § 455(b)(4), and followed the standard practice of not
disclosing his reason for recusal. We decline Hill’s invitation to speculate as to
why the judge recused himself, and when his “undisclosed conflict” first arose.
Second, “we do not automatically vacate the rulings issued after [the judge]
should have recused himself.” Patterson, 335 F.3d at 485. Even if the district
judge was operating under a conflict, it still would not have an effect on the
denial of Hill’s motion because two judges prior to him had issued the same
order.
CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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