Opinion

Hill III v. Keliher

Court: District Court, N.D. Texas
Filed: Mar 25, 2022
Cited by: 0 cases
Authority: More cited than 29.9%

affirming district court’s dismissal with prejudice based on lack of standing

How later courts described this case

affirming district court’s dismissal with prejudice based on lack of standing
“Estoppel . . . generally prevents one party from misleading another to the other’s detriment or to the misleading party’s own benefit.”
describing genesis of the GSA

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ALBERT G. HILL, III and ERIN §

NANCE HILL, §

Plaintiffs, §

v. § Civil Action No. 3:20-CV-3634-L

THE ESTATE OF ALBERT G. HILL §

JR.; MARGARET KELIHER; TYREE B. §

MILLER; LYDA HILL; HEATHER §

HILL WASHBURNE; ELISA HILL §

SUMMERS; CHESTER J. DONNALLY, §

JR.; THE ESTATE OF IVAN IRWIN §

JR.; CAROL E. ERWIN; and THOMAS §

P. TATHAM, §

Defendants. §

MEMORANDUM OPINION AND ORDER

Before the court are Defendants’ Motion to Dismiss Pursuant to Federal Rule of Civil

Procedure 12(b) and Brief in Support (other than Defendant Lyda Hill) (Doc. 18), filed March 3,

2021; Motion to Dismiss and Supporting Brief of Defendant Lyda Hill (Doc. 21), filed March 3,

2021; and Plaintiffs’ Combined Response and Motion to Strike All Defendants’ Motions to

Dismiss (“Plaintiffs’ Motion to Strike”) (Doc. 26), filed April 12, 2021. Having considered the

motions, responses, replies, pleadings, record, and applicable law, the court grants Defendants’

Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b) (Doc. 18); grants Motion to

Dismiss of Defendant Lyda Hill (Doc. 21), and denies Plaintiffs’ Motion to Strike (Doc. 26).

Memorandum Opinion and Order – Page 1

I. Factual Background and Procedural History

This lawsuit, filed by Albert G. Hill, III (“Hill III”) and Erin Nance Hill (“Erin Hill”)

(collectively, “Plaintiffs”) on December 20, 2020, involves, once again, a dispute relating to two

trusts formed by Haroldson Lafayette (“H.L.”) Hunt, “the late Texas oil baron reputed to be one

of the world’s richest men when he died in 1974.” Hill v. Washburne, 953 F.3d 296, 300 (5th Cir.

2020) (citations omitted). In addition to parsing through the terms of the trusts, the court is

required, yet again, to revisit the Global Settlement and Mutual Release Agreement (the “GSA”)

and the final judgment (the “Final Judgment”) issued on November 8, 2010, by the Honorable

Reed O’Connor (“Judge O’Connor”) of the United States District Court for the Northern District

of Texas (Dallas Division) in the lawsuit styled Hill v. Hunt et al., Civil Action No. 3:07-cv-2020-

L (the “2020 Action”).1

In this latest iteration, Plaintiffs assert claims against the Estate of Albert G. Hill, Jr.;

Margaret Keliher (“Keliher”), individually and as Executor of the Estate of Albert G. Hill, Jr.;

Tyree Miller (“Miller”), individually and as Trustee of The Albert G. Hill, Jr. Family Trust;

Chester J. “Don” Donnally, Jr. (“Donnally”), individually and in his capacity as the court

appointed trustee for the MHTE-Albert G. Hill, Jr. Trust and the HLHTE-Albert G. Hill, Jr. Trust;

Carol E. Irwin (“Irwin”), in her capacity as Personal Representative and Independent Executor of

the Estate of Ivan Irwin, Jr., Deceased; Thomas P. Tatham (“Tatham”), individually and in his

capacity as an advisory board member for the MHTE-Albert G. Hill, Jr. Trust and the HLHTE-

Albert G. Hill, Jr. Trust; Heather Hill Washburne (“Washburne”), individually and as an advisory

1 CM-ECF citations from Hill v. Hunt et al., Civil Action No. 3:07-cv-2020-L (the “2020 Action”) are

referenced herein as “2020 Action, Doc. .” Also, Judge O’Connor is currently assigned to the Fort Worth

Division of the Northern District of Texas.

Memorandum Opinion and Order – Page 2

board member for the MHTE-Albert G. Hill, Jr. Income Beneficiary/Heather Termination

Beneficiary Trust; Elisa Hill Summers (“Summers”), individually and as an advisory board

member for the MHTE-Albert G. Hill, Jr. Income Beneficiary/Elisa Termination Beneficiary

Trust; and Lyda Hill. Plaintiffs contend that they and their three children (Albert Galatyn Hill IV,

Nance Haroldson Hill, and Caroline Margaret Hill)2 are contingent or remainder beneficiaries of

various trusts created as a result of the GSA and the Final Judgment. They assert that Defendants,

following the December 2, 2017 death of Hill III’s father, Albert G. Hill, Jr. (“Hill Jr.”), have

breached their duties owed to Plaintiffs in the GSA and Final Judgment by terminating and

dissolving these trusts in 2016, rather than allowing them to terminate twenty-one years after the

deaths of their initial beneficiaries. See generally Pls.’ Compl., Doc. 1. They make similar

allegations against Lyda Hill. Although the history of the dispute between Hill III and his deceased

father (and other relatives) is beyond the scope of this opinion, resolving the pending motions to

dismiss the Complaint requires the court to revisit the trusts at issue, the 2020 Action, the GSA,

and the Final Judgment.

A. The MHTE and HHTE

On December 28, 1935, H.L. Hunt and his wife Lyda Bunker Hunt created trusts for their

six children. Two of those trusts are at issue here, namely: (1) the Margaret Hunt Trust Estate

(“MHTE”); and (2) the Haroldson L. Hunt, Jr. Trust Estate (“HHTE”). Each of the trusts is

governed by a document titled “Articles of Agreement and Declaration of Trust” (the “1935 Trust

Instruments”). The terms of the Trust Instrument for the MHTE are the same as those of the HHTE

except for the designation of, and reference to, the primary beneficiary of each trust. The primary

2 As Plaintiffs use the full names of their three children, the court will do the same.

Memorandum Opinion and Order – Page 3

beneficiary of the MHTE was Margaret Hunt Hill and the primary beneficiary of the HHTE was

Haroldson L. Hunt, Jr. (“Hassie”). The 1935 Trust Instruments provide that “it is the desire and

purpose of said H. L. Hunt and Lyda Hunt” to create an “irrevocable trust,” and both provide,

among other things, that during the lifetime of the beneficiary, only the annual income could be

distributed to the beneficiary requiring that the corpus remain “intact and undisturbed” until

twenty-one years after the death of the named beneficiary, at which time the trust would terminate

and the corpus of the trust would be distributed to the beneficiary’s descendants per stirpes.

Exhibit B to Pls.’ Compl., Doc. 1-2 at 10-11, Art. IV § 3 (MHTE); Exhibit C to Pls.’ Compl., Doc.

1-3 at 10-11, Art. IV § 3 (HHTE).

Article III, Section 3 of the 1935 Trust Instruments, however, provides a current MHTE

and HHTE beneficiary with powers of appointment, as follows:

At the time of the death of the Beneficiary, her [or his] equitable interest in said

Trust Estate, unless disposed of otherwise by said Beneficiary, shall pass to and vest

in her [or his] heirs in accordance with the laws of descent and distribution then in

force, applicable to the equitable interest of such Beneficiary and said Trust Estate.

(The term “Beneficiary” applies not only to [Margaret Hunt or Haroldson L. Hunt,

based on the language of the specific trust] but to all her [or his] successors to

beneficial interests under this Trust.)”)

Exhibit B to Pls.’ Compl., Doc. 1-2 at 10 Art. III § 3 (MHTE); Exhibit C to Pls.’ Compl., Doc. 1-

3 at 10 Art. III § 3 (HHTE) (emphasis added).

On April 20, 2005, Hassie died. In his will, Hassie exercised his general testamentary

power of appointment in the HHTE in favor of “the lineal descendants of my sister Margaret Hunt

Hill, per stirpes.” 2020 Action, Doc. 212-6; Doc. 203 at 4-5, § 2; Doc. 211 at 2-4, § II.A. After

Hassie’s death, therefore, his equitable interests in the HHTE passed in equal shares to Margaret

Hunt Hill’s three children (Hill Jr., Lyda Hill, and Alinda Hill Wikert), as they were Margaret Hunt

Hill’s lineal descendants on the date of Hassie’s death. See id.

Memorandum Opinion and Order – Page 4

B. Hill Jr.’s 2005 Disclaimer

On March 22, 2005, Hill Jr. executed a disclaimer as to certain portions of the equitable

interests he was to receive under the MHTE (the “2005 Disclaimer”) in favor of his three children:

Hill III, Washburne, and Summers. The effect of the 2005 Disclaimer is that Hill Jr.’s disclaimed

interest passed to Hill III, Washburne, and Summers after Margaret Hunt Hill’s death.

Specifically, Hill Jr. disclaimed 75% of his one-third income interest in the MHTE, and 90% of

his one-third termination interest in the MHTE (the “Disclaimed Beneficial Interests”). 2020

Action, Doc. 879 at 39-40; Doc. 999-1 at 7-8. The 2005 Disclaimer further provided, among other

things:

If MHH [Margaret Hunt Hill] does not exercise her general power of appointment,

each intestate heir of MHH will also possess under Article III, Section 3 of the Trust

Agreement a general power of appointment allowing such heir to appoint his or her

Income Interest or Termination Interest in the Trust, or both, to someone else.

2020 Action, Doc. 879 at 38, ¶ 7; Doc. 999-1 at 6, ¶ 7. The Disclaimer also provided:

The Disclaiming Beneficiary is not renouncing or disclaiming any interest in the

Trust besides the Disclaimed Interests. Thus, the Disclaiming Beneficiary is

retaining all interests in the Trust other than the Disclaimed Interests (including,

without limitation, the Beneficiary’s power of appointment over such retained

interests).

2020 Action, Doc. 879 at 40; Doc. 999-1 at 8.

C. The 2020 Action

On June 14, 2007, Margaret Hunt Hill died and her equitable interest in the MHTE passed

in equal shares to her three children—Hill Jr., Lyda Hill, and Alinda Hill Wickert—subject to any

disclaimers. 2020 Action, Doc. 212-2 at 10, ¶ 18. In December 2007, Hill III brought a lawsuit in

Texas state court in his individual capacity and on behalf of the MHTE and HHTE against specific

beneficiaries of the MHTE and HHTE, including his father (Hill Jr.), Hill Jr.’s siblings, and the

Memorandum Opinion and Order – Page 5

trustees and members of the advisory boards of the MHTE and HHTE. Among other things, Hill

III alleged wrongdoing in the management and administration of the MHTE and HHTE by their

respective trustees and violations of the Racketeer Influenced and Corrupt Organizations Act, 18

U.S.C § 1961, et seq. A primary focus of the lawsuit was Hill III’s claim to be a current beneficiary

of the MHTE pursuant to Hill Jr.’s 2005 Disclaimer.3 Following removal to federal court on

December 3, 2007, the case was randomly assigned to Judge O’Connor.

1. The GSA

Ultimately, Hill III agreed to a settlement of the dispute. On May 13, 2010, the parties

entered into the GSA (Doc. 879) that settled this action and related state court actions. See

generally Hill v. Schilling, 495 F. App’x 480, 482-83 (5th Cir. 2012) (describing genesis of the

GSA). In the GSA, the parties stipulated that Hill Jr.’s 2005 Disclaimer was valid. As recently

summarized by the Fifth Circuit:

In exchange for a nine-figure payment and other benefits, Hill III agreed

“not to contest the Last Will and Testament of Al Jr. or file any additional action,

lawsuit, or legal proceeding challenging the disposition of his property” (the no-

contest clause). The parties further “agree[d] that the remedy of specific

performance and/or injunctive relief (whether mandatory or by restraint) shall be

available for the breach of any term, condition, covenant, or warranty of” the

settlement agreement. The parties consented to the district court’s continuing

jurisdiction over actions to enforce the settlement agreement.

Hill v. Washburne, 953 F.3d 296, 301 (5th Cir. 2020).4

3 In 2007, Hill Jr. sought to rescind his 2005 disclaimer, along with another partial disclaimer he had

executed in 2007. Hill Jr.’s attempt to rescind his disclaimers was ultimately unsuccessful.

4 The Fifth Circuit also recognized in Hill v. Washburne, “After ‘protracted [and] complicated’ litigation,

Hill v. Schilling, 593 F. App’x 330, 331 (5th Cir. 2014), squabbling over the trusts was supposedly ended

by a settlement agreement confected in 2010. Yet, over the next four years, our court ‘weighed in on the

settlement’ four times. Id. This appeal makes it five.” Hill v. Washburne, 953 F.3d 296, 301 (5th Cir. 2020).

Memorandum Opinion and Order – Page 6

2. The Final Judgment

On November 8, 2010, Judge O’Connor issued the Final Judgment implementing and

memorializing the parties’ GSA, which he incorporated by reference into the Final Judgment.

2020 Action, Doc. 999. Consistent with the GSA, the Final Judgment declared Hill Jr.’s 2005

Disclaimer valid and partitioned portions of the MHTE and the HHTE, as to which Hill Jr. did not

disclaim any of his equitable interests, into the Hill Jr. Trusts5 and, for Hill III’s benefit, his one-

third interest in the Disclaimed Beneficial Interests, because of the 2005 Disclaimer, were

partitioned into the Hill III Trusts.6 2020 Action, Doc. 999 at 6, ¶ 5; Doc. 999 at 12-13, ¶¶ 8.f.i and

8.f.ii; Doc. 999 at 20, ¶ 8.i; Doc. 999 at 22-23. ¶ 9.c. The Final Judgment also partitioned portions

of the MHTE and HHTE into separate trusts for Lyda Hill,7 who became the sole current

beneficiary of separate one-third shares of each of the MHTE and HHTE trusts. 2020 Action, Doc.

999 at 7-9, ¶¶ 8.a, 9.a.8 The court notes that Plaintiffs sometimes refer to these trusts, collectively,

as the “New Hunt Trusts.”

5 These trusts are the (1) the MHTE – Albert G. Hill, Jr. Trust and (2) the HLHTE – Albert G. Hill, Jr.

Trust and are referred to herein, collectively, as the “Hill Jr. Trusts.”

6 These trusts are (1) the MHTE – Albert G. Hill, III Trust, for the benefit of Hill III, and (2) the MHTE –

Albert G. Hill Jr. Income Beneficiary / Al III Termination Beneficiary Trust, for the benefit of Hill Jr.

during his lifetime and for the benefit of Hill III after Hill Jr.’s death and are referred to herein,

collectively, as the “Hill III Trusts.”

7 These trusts are the “MHTE-Lyda Hill Trust” and the “HLHTE-Lyda Hill Trust,” and are referred to

herein, collectively, as the “Lyda Hill Trusts.”

8 In contrast to the recognition of Hill Jr.’s 2005 Disclaimer, Plaintiffs agreed on behalf of themselves and

their children, in the GSA and as confirmed in the Final Judgment “that there is no disclaimer by Lyda to

the MHTE or HHTE, and agree[d] that they shall not, and they are hereby ORDERED not to, assert any

claims, cause of action, count, or counter-claim to the contrary.” 2020 Action, Doc. 999 at 37, ¶ 32. The

GSA and the Final Judgment also did not grant Hill III or his children any termination interest in Lyda’s

separate MHTE and HHTE trusts. 2020 Action, Doc. 999 at 8-9, ¶ 8.a and at 20-22, ¶ 9.a.

Memorandum Opinion and Order – Page 7

The Final Judgment enforced the agreeing parties’ waiver of standing provision, whereby

each agreeing party, defined to include Hill III, agreed to waive any right to demand information,

seek accountings, or assert any claim or cause of action in connection with, any trust for the

primary benefit of a descendent of Margaret Hunt Hill of which he or she was not a current

beneficiary:

Waiver of Standing

28. IT IS ORDERED that, pursuant to the Agreement, the Court finds that

during such time as an Agreeing Party is not a current beneficiary of a trust

for the primary benefit of a descendant of Margaret Hunt Hill (“MHH”) (an “MHH

Trust”) and any other descendant of MHH is living, such Agreeing Party has

waived: (1) his or her status as an interested person in such trust, and (2) all

rights that he or she may have as a future or contingent beneficiary of such trust

under the instrument establishing such MHH Trust, under applicable common law,

or under applicable state law, including but not limited to the right to demand

information, seek an accounting, or assert any claim or cause of action in

connection with any such trust. . . . IT IS FURTHER ORDERED that, pursuant

to the Agreement, the waivers by each Agreeing Party in this paragraph shall not

apply to an MHH Trust during any period in which such Agreeing Party is a

current beneficiary of that MHH Trust, although the waivers in this paragraph

shall continue to apply to any actions taken or omitted by any other person or entity

during the period that such Agreeing Party was not a current beneficiary. For

purposes of this paragraph, “current beneficiary” means a person who, at the time

a current beneficiary is determined, is then entitled to receive, or is then, in an

exercise of discretion by the trustee of such trust, a possible recipient of, income or

principal of such trust.

2020 Action, Doc. 999 at 35-36, ¶ 28 (emphasis added).

As the undersigned has held, per the Waiver of Standing clause, each of the parties “agreed

to waive his or her standing and right to demand information, seek accountings, or assert any claim

or cause of action in connection with any trust for the primary benefit of a descendant of Margaret

Hunt Hill of which he or she was not a current beneficiary.” 2020 Action, Doc. 1883 at 6 (July 3,

2018 Memorandum Opinion and Order).

Memorandum Opinion and Order – Page 8

As part of the Final Judgment, the court, incorporating the No Contest Clause from the

GSA, ordered Hill III and Erin Hill (in all their capacities) and the Grandchildren not to contest

Hill Jr.’s will or challenge the disposition of his property:

IT IS ORDERED that Al III (in all capacities), Erin [Hill] (in all her capacities),

the Grandchildren, and all of their descendants and heirs shall not contest the Last

Will and Testament of Al Jr., or file any additional action, lawsuit, or legal

proceeding challenging the disposition of Al Jr.’s property.

2020 Action, Doc. 999 at 36, ¶ 29.

Finally, consistent with the Settlement Agreement, Judge O’Connor retained continuing

jurisdiction over the implementation and enforcement of the Final Judgment.9 On October 2, 2013,

the 2020 Action was reassigned to the undersigned following the recusal of Judge O’Connor (who

had presided over the matter for approximately sever years), which was followed by the recusals

of Judges Lynn, Solis, Godbey, Boyle, Fitzwater, and Kinkeade.

D. Hill Jr.’s Will and the Dissolution of the Hill Jr. Trusts

On December 20, 2014, Hill Jr. executed his Will, which included the following provisions

in which he exercised his powers of appointment as a current beneficiary of the Hill Jr. Trusts:

(a) I hereby exercise the testamentary special power of appointment

given to me under paragraph VIII, of The Lyda Hunt-Margaret Trusts, Al G. Hill,

Jr., created under the Last Will and Testament of Lyda Bunker Hunt, dated the 16th

day of September, 1954, in favor of my grandchildren [AGH, IV, NHH, and CMH],

that they should succeed me as to all interests which I have in such Trust estate;

(b) I hereby exercise the power of appointment given to me under

Article III, Section 3 of the Albert Hill Trust, dated the 10th day of April, 1945, in

favor of the Al G. Hill, Jr. Family Foundation ("Foundation"), so that the

Foundation should succeed me as to all interests which I have in such Trust estate;

9 Hill III appealed the Final Judgment challenging, among other things, the addition of provisions that were

not part of the GSA. The Fifth Circuit affirmed the Final Judgment. See Hill v. Schilling, 495 F. App’x

480 (5th Cir. 2012) (consolidated appeal).

Memorandum Opinion and Order – Page 9

Article III, Section 3 of the HLHTE-Albert G. Hill, Jr. Trust, created under a

settlement agreement, by which the Haroldson L. Hunt, Jr. Trust Estate, dated 28th

day of December, 1935, was split into separate trusts, in favor of the Al G. Hill, Jr.

Charitable Lead Annuity Trust ("CLAT") created under Article IV of THE AL G.

HILL, JR. FAMILY TRUST, more particularly defined in paragraph 2,2 below, so

that such Al G. Hill, Jr. Charitable Lead Annuity Trust should succeed me as to all

interests which I have in such Trust estate;

(d) I hereby exercise the power of appointment given to me under

Article III, Section 3 of the MHTE-Albert G. Hill, Jr. Trust, created under a

settlement agreement, by which the Margaret Hunt Trust Estate, dated December

28, 1935, was split into separate trusts, in favor of the Al G. Hill, Jr. Charitable

Lead Annuity Trust created under Article IV of THE AL G. HILL, JR. FAMILY

TRUST, more particularly defined in paragraph 2,2 below, so that such Al G. Hill,

Jr. Charitable Lead Annuity Trust should succeed me as to all interests which I have

in such Trust estate.

2020 Action, Doc. 1883 at 8 (July 3, 2018 Memorandum Opinion and Order). On or about

December 13, 2016, the Trustees and the Advisory Board Members of the Hill Jr. Trusts

voluntarily dissolved the Hill Jr. Trusts. 2020 Action, Doc. 1883 at 9 (July 3, 2018 Memorandum

Opinion and Order).

On December 7, 2017, an Application for Probate of Will and Issuance of Letters

Testamentary was filed in the Estate of Albert Galatyn Hill, Jr., Deceased, in Cause No. PR-17-

04117-2, Probate Court No. 2, Dallas County, Texas (the “Estate Action”), seeking to admit the

Will to probate, and to appoint an independent executor. “On December 22, 2017, Hill III entered

the probate proceedings, challenging the terms of the will that appointed executors to [the Hill Jr.

Trusts].” Hill v. Washburne, 953 F.3d at 302.

On May 29, 2018, Washburne and Summers filed a motion in the 2020 Action seeking to

enjoin Hill III from (1) contesting the Will, (2) challenging the disposition of Hill Jr.’s property in

violation of the No Contest Clause, and (3) violating the GSA and the Final Judgment by asserting

Memorandum Opinion and Order – Page 10

claims concerning the Hill Jr. Trusts because he was not a current beneficiary. See 2020 Action,

Doc. 1876. Also, on May 29, 2018, in the 2020 Action, Hill III filed his own motion to enforce the

GSA and Final Judgment, contending that the Hill Jr. Trusts that were supposed to be preserved

by the Final Judgment had been prematurely and unlawfully terminated by Hill Jr. and his cohorts,

thereby destroying the valuable inheritance of Hill III and his descendants, from the H.L. Hunt

family, estimated to be worth in excess of $1 billion. See 2020 Action, Doc. 1877. Hill III

challenged both Hill Jr.’s exercise of his powers of appointment in his will in 2014 and the

subsequent dissolution of the trusts in 2016. Id. Hill III sought an injunction to preserve the assets

of the Hill Jr. Trusts and the Lyda Hill Trusts, and to prevent dissipation, concealment, and further

transfer of such assets, and preservation of all records relating to such trusts and actions affecting

them. Id.

On July 3, 2018, the court denied the requests for injunctive relief of both parties without

prejudice, holding any relief would be “premature” because of the pending probate proceedings.

2020 Action, Doc. 1883 at 2 (July 3, 2018 Memorandum Opinion and Order). The court noted that

Hill III’s failure to disprove the validity of Hill Jr.’s Powers of Appointment would bar him as a

matter of law from seeking relief regarding dissolution of the Hill Jr. Trusts due to the Waiver of

Standing Clause:

Pending before the Probate Court is Hill III’s request for a declaratory

judgment that Hill Jr. lacked the powers of appointment he sought to exercise in his

Will with respect to the MHTE -Albert G. Hill, Jr. Trust, the HLHTE - Albert G.

Hill, Jr. Trust, the Lyda Hunt - Margaret Trusts, Albert G. Hill, Jr., and the Albert

Hill Trust. If the Probate Court decides that Hill Jr.’s exercise of these powers of

appointment was invalid, then Hill Jr.’s beneficiary designations in his Will would

lapse. By contrast, if the Probate Court decides that Hill Jr. properly exercised these

powers of appointment in his Will, thereby lawfully excluding Hill III from any

inheritance, Hill III would not qualify as a current beneficiary and the waiver of

standing provision in the Settlement Agreement and Final Judgment would,

therefore, bar him from seeking relief in the Probate Court or this court with respect

Memorandum Opinion and Order – Page 11

to the trusts at issue. Under the latter scenario, whether the termination of the trusts

during Hill Jr.’s lifetime was impermissible would be moot.

Insofar as the parties seek to present these issues before the undersigned,

while also pursuing them in the Probate Court, the court declines this invitation.

These disputed matters are inextricably intertwined with the probate of Hill Jr.’s

Will.

***

Until the Probate Court resolves Hill III’s request for declaratory relief as

to whether Hill Jr. lacked the powers of appointment he sought to exercise in his

Will, the court cannot determine whether Hill III waived his standing under section

III(5)(b) of the Settlement Agreement and paragraph 28 of the Final Judgment.

2020 Action, Doc. 1883 at 16, 19 (July 3, 2018 Memorandum Opinion and Order) (original

emphasis).

In November 2018, the parties filed competing summary judgment motions in Probate

Court No. 2 regarding Hill Jr.’s Powers of Appointment. After the Probate Court had conducted

hearings on those motions, Hill III nonsuited his claims without prejudice.

In their current lawsuit, Plaintiffs, once again, assert the same claims that the court denied

without prejudice on July 3, 2018, when it deferred to the Probate Court before which identical

claims were pending. Plaintiffs allege:

The claims here asserted arise from Defendants’ termination of certain trust

documents created pursuant to the GSA, identified as the New Hunt Trusts. The

parties agreed that these Trusts would be formed out of the trusts H.L. Hunt had

created in 1935 for his daughter Margaret (MHTE) and his son Hassie (HHTE).

Thus, the New Hunt Trusts were brought into existence by the Final Judgment. The

parties agreed that “the rights of each beneficiary of each of the New Hunt Trusts

shall be governed by the terms and provisions of the Articles of Agreement and

Declaration of Trust establishing the” MHTE and the HHTE.

Pls.’ Compl. 2, Doc. 1. Plaintiffs further allege, as they did previously in the 2020 Action:

Preservation of trust assets from the Margaret and Hassie Trusts in the Final

Judgment New Hunt Trusts until their termination dates on April 20, 2026[,] and

June 14, 2028[,] was a material term and an essential benefit of the bargain to Hill

Memorandum Opinion and Order – Page 12

III when he signed the GSA on May 13, 2010, both for himself and “derivatively

on behalf of the MHTE and the HHTE, and as next friends, and on behalf of Albert

Galatyn Hill IV, Nance Haroldson Hill and Caroline Margaret Hill.”

By dissolving the Final Judgment New Hunt Trusts that had derived from

the MHTE and HHTE, prior to the termination dates established by H.L. Hunt, Al

Hill, Jr., Lyda Hill, Heather Washburne, and Elisa Summers took possession of

Trust assets into their personal estates and beyond the reach of Plaintiffs. The

Defendants’ conduct breached the implied covenant of good faith and fair dealing

that is applicable to all contracts in the State of Texas. These actions were breaches

of the GSA that violated the terms of the MHTE and HHTE Trusts as well as the

New Hunt Trusts, damaging Plaintiffs.

Pls.’ Compl., ¶¶ 73, 74.

Plaintiffs assert the following claims arising out of the 2016 termination and dissolution of

the Hill Jr. Trusts and the purported termination and dissolution of the Lyda Hill Trusts: Breach of

Contract (Count One) (except as to Defendants Donnally and Tatham); Declaratory Relief (Count

Two) (against all Defendants); Imposition of a Constructive Trust/Conversion (Count III) (against

all Defendants); Tortious Interference with Contract (against Donnally and Tatham only) (Count

IV); Breach of Fiduciary Duties and Fee Disgorgement (against Donnally, Irwin, and Tatham)

(Count V); Aiding and Abetting Breach of Fiduciary Duties (against Hill Jr., Lyda Hill,

Washburne, and Summers) (Count VI); Civil Conspiracy (against all Defendants) (Count VII);

Aiding and Abetting (against Hill Jr., Keliher, Miller, Lyda Hill, Washburne, and Summers)

(Count VIII); Unjust Enrichment (against Hill Jr., Lyda Hill, Washburne, and Summers) (Count

IX); Equitable Reformation (against all Defendants) (Count X); and Exemplary Damages (against

all Defendants). See Pls.’ Compl., Doc. 1.

Defendants have moved to dismiss the Complaint pursuant to Federal Rule of Civil

Procedure 12(b)(1) and 12(b)(6), arguing, among other things, that Plaintiffs lack standing; that

Plaintiffs’ claims have been settled, released, and adjudicated in the Final Judgment; and that

Memorandum Opinion and Order – Page 13

Plaintiffs have taken positions contrary to the positions they espouse in the Complaint when it was

to their benefit and are, therefore, estopped from bringing their current claims.

II. Legal Standards

A. Rule 12(b)(1) - Lack of Subject Matter Jurisdiction

A federal court has subject matter jurisdiction over civil cases “arising under the

Constitution, laws, or treaties of the United States,” or over civil cases in which the amount in

controversy exceeds $75,000, exclusive of interest and costs, and in which diversity of citizenship

exists between the parties. 28 U.S.C. §§ 1331, 1332. Federal courts are courts of limited

jurisdiction and must have statutory or constitutional power to adjudicate a claim. Kokkonen v.

Guardian Life Ins. Co., 511 U.S. 375, 377 (1994) (citations omitted); Home Builders Ass’n of

Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Absent jurisdiction conferred

by statute or the Constitution, they lack the power to adjudicate claims and must dismiss an action

if subject matter jurisdiction is lacking. Id.; Stockman v. Federal Election Comm’n, 138 F.3d 144,

151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir.

1994)). A federal court must presume that an action lies outside its limited jurisdiction, and the

burden of establishing that the court has subject matter jurisdiction to entertain an action rests with

the party asserting jurisdiction. Kokkonen, 511 U.S. at 377 (citations omitted). “[S]ubject-matter

jurisdiction cannot be created by waiver or consent.” Howery v. Allstate Ins. Co., 243 F.3d 912,

919 (5th Cir. 2001).

In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, “a

court may evaluate (1) the complaint alone, (2) the complaint supplemented by undisputed facts

evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court’s

resolution of disputed facts.” Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420,

Memorandum Opinion and Order – Page 14

424 (5th Cir. 2001) (citation omitted). Thus, unlike a Rule 12(b)(6) motion to dismiss for failure

to state a claim, the district court is entitled to consider disputed facts as well as undisputed facts

in the record and make findings of fact related to the jurisdictional issue. Clark v. Tarrant Cnty.,

798 F.2d 736, 741 (5th Cir. 1986). All factual allegations of the complaint, however, must be

accepted as true. Den Norske Stats Oljeselskap As, 241 F.3d at 424.

B. Rule 12(b)(6) - Failure to State a Claim

To defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Reliable Consultants, Inc. v.

Earle, 517 F.3d 738, 742 (5th Cir. 2008); Guidry v. American Pub. Life Ins. Co., 512 F.3d 177,

180 (5th Cir. 2007). A claim meets the plausibility test “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (internal citations omitted). While a complaint need not contain detailed factual

allegations, it must set forth “more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted). The

“[f]actual allegations of [a complaint] must be enough to raise a right to relief above the speculative

level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in

fact).” Id. (quotation marks, citations, and footnote omitted). When the allegations of the pleading

do not allow the court to infer more than the mere possibility of wrongdoing, they fall short of

showing that the pleader is entitled to relief. Iqbal, 556 U.S. at 679.

Memorandum Opinion and Order – Page 15

In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the

complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm

Mutual Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007); Martin K. Eby Constr. Co. v. Dallas

Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir.

1996). In ruling on such a motion, the court cannot look beyond the pleadings. Id.; Spivey v.

Robertson, 197 F.3d 772, 774 (5th Cir. 1999). The pleadings include the complaint and any

documents attached to it. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir.

2000). Likewise, “‘[d]ocuments that a defendant attaches to a motion to dismiss are considered

part of the pleadings if they are referred to in the plaintiff’s complaint and are central to [the

plaintiff’s] claims.’” Id. (quoting Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429,

431 (7th Cir. 1993)). In this regard, a document that is part of the record but not referred to in a

plaintiff’s complaint and not attached to a motion to dismiss may not be considered by the court

in ruling on a 12(b)(6) motion. Gines v. D.R. Horton, Inc., 699 F.3d 812, 820 & n.9 (5th Cir. 2012)

(citation omitted). Further, it is well-established and “‘clearly proper in deciding a 12(b)(6) motion

[that a court may] take judicial notice of matters of public record.’” Funk v. Stryker Corp., 631

F.3d 777, 783 (5th Cir. 2011) (quoting Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir.

2007) (citing Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994)).

The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid

claim when it is viewed in the light most favorable to the plaintiff. Great Plains Trust Co. v.

Morgan Stanley Dean Witter, 313 F.3d 305, 312 (5th Cir. 2002). While well-pleaded facts of a

complaint are to be accepted as true, legal conclusions are not “entitled to the assumption of truth.”

Iqbal, 556 U.S. at 679 (citation omitted). Further, a court is not to strain to find inferences favorable

to the plaintiff and is not to accept conclusory allegations, unwarranted deductions, or legal

Memorandum Opinion and Order – Page 16

conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 638, 642 (5th Cir. 2005) (citations omitted). The

court does not evaluate the plaintiff’s likelihood of success; instead, it only determines whether

the plaintiff has pleaded a legally cognizable claim. United States ex rel. Riley v. St. Luke’s

Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004). Stated another way, when a court deals with

a Rule 12(b)(6) motion, its task is to test the sufficiency of the allegations contained in the

pleadings to determine whether they are adequate enough to state a claim upon which relief can

be granted. Mann v. Adams Realty Co., 556 F.2d 288, 293 (5th Cir. 1977); Doe v. Hillsboro Indep.

Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996), rev’d on other grounds, 113 F.3d 1412 (5th Cir.

1997) (en banc). Accordingly, denial of a 12(b)(6) motion has no bearing on whether a plaintiff

ultimately establishes the necessary proof to prevail on a claim that withstands a 12(b)(6)

challenge. Adams, 556 F.2d at 293.

III. Analysis

A. Plaintiffs’ Motion to Strike and Request to Convert Pending Motions to Dismiss

into Motions for Summary Judgment

Before turning to the pending motions to dismiss, the court must address Plaintiffs’ Motion

to Strike and their associated request that the court convert the pending motions to dismiss into

motions for summary judgment. See Pls.’ Resp. and Mot. Strike 1-5, Doc. 26. Defendants oppose

these requests in their respective reply briefs. See Hill Jr. Defs.’ Reply 10-11, Doc. 31; Lyda Hill’s

Reply 2-3, Doc. 28. For the reasons that follow, the court denies both Plaintiffs’ Motion to Strike

and their associated request that the court convert the pending motions to dismiss into motions for

summary judgment.

Memorandum Opinion and Order – Page 17

1. Motion to Strike

Pursuant to Federal Rule of Civil Procedure 12(f), Plaintiffs move to strike the pending

motions to dismiss. In support, they contend that in their motions, Defendants “allude to an array

of documents irrelevant to the allegations in Plaintiffs’ Complaint.” Pls.’ Resp. and Mot. Strike 1,

Doc. 26. Plaintiffs further argue that both “Motions are replete with the sort of name calling and

character assassination that should be excluded from pleadings.” Id. at 2. Plaintiffs take issue with

Defendants’ labelling Hill III as a “vexatious litigant” and accuse Defendants of “seeking to avoid

the Court’s consideration of the specific claims in the Complaint.” Id.

Lyda Hill opposes Plaintiffs’ Motion to Strike and, in her reply brief, she argues:

Seemingly in a moment of desperation, Plaintiffs’ Response seeks to strike

Lyda’s Motion because of references to Hill III as a “vexatious” litigant. See

Response (ECF 26 at 2). But indeed, the “vexatious” label was a term first used by

the Court (App. 409 (ECF 21 at 3 (citation omitted)) (“the court has repeatedly

admonished Hill III, his wife Erin Hill, and their legal team that it will not hesitate

to impose sanctions if these vexatious filings and dilatory tactics continue”), and

the term could not be more accurate. It certainly does not provide a basis for striking

Lyda’s Motion.

Lyda Hill’s Reply 2, Doc. 28. The Hill Jr. Defendants, in their reply, maintain the court should

deny Plaintiffs’ Rule 12(f) motion to strike for the following three reasons: (i) “the filing at issue

is a motion, not a pleading”; (ii) “the Motion relates to the controversy before the Court as it

specifically addresses Plaintiffs’ claims”; and (iii) “Plaintiffs fail to note any specific language in

the Motion they contend satisfies Rule 12(f)’s high standard to strike.” Hill Jr. Defs.’ Reply 10,

Doc. 31.

Rule 12(f) motions “are viewed with disfavor” and granted “only when the pleading to be

stricken has no possible relation to the controversy.” Securities Exch. Comm’n v. Faulkner, Civil

Action No. 3:16-cv-1735-D, 2019 WL 2515000, at * 1 (N.D. Tex. June 18, 2019) (Fitzwater, J.)

Memorandum Opinion and Order – Page 18

(citation omitted). Although Rule 12(f) authorizes the court to “strike from a pleading an

insufficient defense or any redundant, immaterial, impertinent, or scandalous matter,” Rule 7(a)

identifies the “pleadings” subject to being stricken under Rule 12(f): “(1) a complaint; (2) an

answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer

to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the

court orders one, a reply to an answer.” Id.

Here, as the Hill Jr. Defendants correctly note, the filings at issue are motions, not

pleadings. As such, Rule 12(f) does not apply. In addition, the court disagrees with Hill III and

concludes that the motions relate to the current controversy and specifically address Plaintiffs’

claims. Further, as Lyda Hill points out, the “vexatious” label was a term first used by the court,10

and, in any event, does not provide a basis for striking her motion. For these reasons, the court

denies Plaintiffs’ Motion to Strike.

10 The court stated in a memorandum opinion and order issued on December 10, 2018:

After years of litigation, this case was supposed to have been brought to a close on

November 8, 2010, by the Final Judgment (Doc. 999), implementing the Settlement

Agreement (Doc. 879), as well as a separate judgment in a related attorney’s fees dispute

severed from the underlying action. Since entry of Final Judgment, Hill III has inundated

the court with unsuccessful motions to alter, amend, or vacate the Final Judgment, to recuse

various judges for purported bias, and to stay proceedings, many of which have been filed

solely to frustrate the court’s implementation of the Final Judgment and Settlement

Agreement. Hill III and his legal team have also taken numerous unsuccessful appeals to

the United States Court of Appeals for the Fifth Circuit resulting in further protraction of

this eleven-year-old case. During the eight-year period of postjudgment litigation, the court

has repeatedly admonished Hill III, his wife Erin Hill, and their legal team that it will not

hesitate to impose sanctions if these vexatious filings and dilatory tactics continue.

Mem. Op. and Order 12, Doc. 1920 (emphasis added).

Memorandum Opinion and Order – Page 19

2. Plaintiffs’ Request to Convert Pending Motions to Dismiss into Motions for

Summary Judgment

Plaintiffs contend that because Defendants’ respective motions improperly make factual

assertions that exist outside the pleadings and rely on matters outside the pleadings, the court must

convert their motions to dismiss into motions for summary judgment. See Pls.’ Resp. and Mot.

Strike 3, Doc. 26. According to Plaintiffs:

Here, Defendants have attached 37 exhibits, totaling 888 pages, to their Motions to

Dismiss. Only three of the exhibits Defendants attached are relevant and

incorporated within Plaintiffs’ Complaint: the GSA, the Final Judgment, and the

Exhibits to the Final Judgment. A fourth exhibit, the July 3, 2018 Order by Judge

Lindsay, is also clearly relevant and can be noticed by the Court. All other matters

are extrinsic documents that this Court should not consider under Rule 12(b)(6).

Because Defendants have attached nearly 900 pages of extrinsic documents to their

Motions to Dismiss, the motions must be converted to motions for summary

judgment under Rule 56.

Id.

The Hill Jr. Defendants and Lyda Hill oppose Plaintiffs’ request. Among other thigs, the

Hill Jr. Defendants contend that, insofar as they are moving to dismiss under Rule 12(b)(1) for

lack of standing, Rule 12(d) does not authorize the court to convert their motion to a motion for

summary judgment. Hill Jr. Defs.’ Reply 10-11, Doc. 31. They further argue that “attaching or

referring to documents alone is not a sufficient basis to convert a motion to dismiss into a

summary-judgment motion under Rule 56.” Id. at 11. In her motion to dismiss, Lyda Hill notes

that “Plaintiffs’ Complaint is replete with references to the underlying settled federal and state

court litigation . . . and over a hundred references to the Settlement Agreement and Final Judgment

in the 2020 Action, which are central to this suit.” Lyda Hill’s Mot. Dismiss 17, Doc. 21. She

requests that the court, in considering her motion, “take judicial notice of documents from the 2020

Action and the other underlying settled litigation.” Id. at 18. In her reply brief, Lyda Hill asserts

Memorandum Opinion and Order – Page 20

that, in ruling on her motion to dismiss, the court “is entitled to consider its own prior rulings on

Plaintiffs’ numerous baseless post-judgment filings.” Lyda Hill’s Reply 2 note 1, Doc. 28. For the

reasons that follow, the court will deny Plaintiffs’ request.

First, Rule 12(d) authorizes conversion of a Rule 12(b)(6) motion to dismiss for failure to

state a claim, or a Rule 12(c) motion for judgment on the pleadings, into a motion for summary

judgment. See Fed. R. Civ. P. 12(f). It does not, however, authorize conversion of a Rule 12(b)(1)

motion to dismiss for lack of jurisdiction into a motion for summary judgment. Thus, the court

denies Plaintiffs’ request to convert the pending Rule 12(b)(1) motions into summary judgment

motions.

The court also rejects Plaintiffs’ request that the court convert the pending Rule 12(b)(6)

motions to dismiss into summary judgment motions. As previously explained by the court in its

legal standards, see supra Sec. II, in ruling on such a Rule 12(b)(6) motion to dismiss, the court

cannot look beyond the pleadings. Spivey, 197 F.3d at 774. The pleadings include the complaint

and any documents attached to it. Collins, 224 F.3d at 498-99. Likewise, “‘[d]ocuments that a

defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred

to in the plaintiff’s complaint and are central to [the plaintiff’s] claims.’” Id. (quoting Venture

Assocs. Corp., 987 F.2d at 431). It is well-established and “‘clearly proper in deciding a 12(b)(6)

motion [that a court may] take judicial notice of matters of public record.’” Funk, 631 F.3d at 783

(quoting Norris, 500 F.3d at 461 n.9) (citation omitted); see also Cinel, 15 F.3d at 1341, 1343 n.6

(court may consider matters of public record, including a consent judgment, in deciding a Rule

12(b)(6) motion).

Here, the court intends to follow its legal standard and consider the Complaint, documents

Plaintiffs attach to their Complaint, and documents that Defendants attach to their respective

Memorandum Opinion and Order – Page 21

motions to dismiss if they are referred to in Plaintiffs’ Complaint and are central to their claims.

The court will also take judicial notice of matters of public record. Finally, the court is entitled to

consider its own prior rulings and any and all rulings in the 2020 Action that are relevant to this

lawsuit. As the court will not consider any other documents in ruling on the pending Rule 12(b)(6)

motions, the court denies Plaintiffs’ request that the court convert the pending Rule 12(b)(6)

motions to dismiss into summary judgment motions.

B. Rule 12(b)(1) Motions to Dismiss

The Hill Jr. Defendants contend that Plaintiffs lack standing to challenge the dissolution of

the Hill Jr. Trusts under the Waiver of Standing clause. They further argue that the issue of whether

the dissolution of Hill Jr.’s Trusts was improper is moot. Lyda Hill makes similar arguments

pertaining to the Lyda Hill trusts.11 Because the Hill Jr. Defendants and Lyda Hill each

incorporated the other’s briefing by reference, the court will consider the motions in tandem. Hill

III opposes the motions. As Erin Hill does not contest that she lacks standing, the court grants the

Rule 12(b)(1) motion to dismiss as to Erin Hill’s claims.

“Standing to sue is a doctrine rooted in the traditional understanding of a case or

controversy.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). “The doctrine limits the category

of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Id.

(citations omitted). “The law of Article III standing, which is built on separation-of-powers

11 In her reply brief, Lyda Hill notes that Plaintiffs “mischaracterize a Probate Court order described” in her

motion. Lyda Hill’s Reply 6, Doc. 28. She states: “This June 2011 Probate Court order permitted the trustees

of Lyda’s separate trusts to voluntarily terminate the trusts – It did not order the termination of the trusts at

the time as Plaintiffs misleadingly contend.” Id. As this order is referenced in the Complaint and attached

to Lyda Hill’s motion to dismiss and central to Plaintiffs’ claims against her, the court has considered it and

agrees that Plaintiffs have mischaracterized the order as terminating the Lyda Hill Trusts. See Lyda Hill’s

Unsealed Appendix, Doc. 22 at 662-64.

Memorandum Opinion and Order – Page 22

principles, serves to prevent the judicial process from being used to usurp the powers of the

political branches.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). “The party invoking

federal jurisdiction bears the burden of establishing” that he, she, or it has standing. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992). Constitutional standing is assessed at the time a

plaintiff commences an action. Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 460 (5th Cir.

2005).

To satisfy the “irreducible constitutional minimum” of standing under Article III, a

“plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”

Spokeo, 578 U.S. at 338 (quoting Lujan, 504 U.S. at 560).12

The doctrine of mootness is embedded in Article III’s case or controversy requirement and

requires that an actual, ongoing controversy exist at all stages of federal court proceedings. See

Burke v. Barnes, 479 U.S. 361, 363 (1987). A case becomes moot “when the issues presented are

no longer ‘live’ or the parties lack a legally cognizable interest in the outcome” of the litigation.

Powell v. McCormack, 395 U.S. 486, 496 (1969). Thus, if events after a case is filed resolve the

parties’ dispute, the case must be dismissed as moot because federal courts do not have the

constitutional authority to decide moot cases. Carr v. Saucier, 582 F.2d 14, 15 (5th Cir. 1978).

Mootness may be raised “by any party at any time” because, if the controversy is moot, federal

courts lack subject matter jurisdiction. Id.

12 Statutory standing, also commonly referred to as prudential standing, is similar to constitutional standing

and addresses whether a plaintiff is “within the class of plaintiffs whom Congress has authorized to sue”

under a statute. Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 (2014). Although

often treated as “effectively jurisdictional,” statutory standing relates to the merits of a cause of action and

not subject matter jurisdiction.” Id. Defendants are arguing that Plaintiffs lacked constitutional standing

when they commenced this action. They do not address statutory or prudential standing.

Memorandum Opinion and Order – Page 23

Although Defendants do not specify, the court concludes this case primarily concerns

injury in fact, the “[f]irst and foremost” of standing’s three elements. Steel Co. v. Citizens for Better

Environment, 523 U.S. 83, 103 (1998). To establish injury in fact, a plaintiff must show that he or

she suffered “an invasion of a legally protected interest” that is “concrete and particularized” and

“actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560.

As the undersigned previously ruled, Hill III’s failure in the Probate Court to disprove the

validity of Hill Jr.’s powers of appointment bars him as a matter of law from seeking relief

regarding dissolution of the Hill Jr. Trusts due to the Waiver of Standing Clause: