Opinion
No. 04-16-00813-CV
03-07-2018
IN RE ESTATE OF Ramiro AGUILAR Jr., Deceased
MEMORANDUM OPINION
From the Probate Court No. 2, Bexar County, Texas
Trial Court No. 2012-PC-2800
Honorable Tom Rickhoff, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Irene Rios, Justice DISMISSED FOR LACK OF JURISDICTION
This appeal arises from two orders — an order granting summary judgment in favor of appellee, Rene Pena, and an order imposing sanctions against appellants, Anthony C. Aguilar and Michael A. Aguilar — entered by Bexar County Probate Court No. 2 on November 18, 2016. On appeal, appellants raise fifteen separate issues, which we have restated as follows: (1) whether Bexar County Probate Court No. 2 had subject matter jurisdiction to enter such orders; (2) assuming the probate court had subject matter jurisdiction, whether it erred in granting summary judgment in favor of Pena with respect to all of the Aguilars' causes of action because such claims were not asserted in Pena's motion for summary judgment and fact issues exists as to each of the claims; and (3) assuming it had subject matter jurisdiction, whether Bexar County Probate Court No. 2 abused its discretion in entering the sanctions order.
A review of the record reflects this matter has come before our court multiple times, and because the factual and procedural background of this case is important to the resolution of this appeal, we have included the following facts necessary to place the orders being appealed in context. This dispute stems from a probate matter between siblings — appellants and their sister, Margaret Morales. Their father, Ramiro Aguilar Jr., died in the summer of 2012, and an application to probate Ramiro's will was filed in Bexar County Probate Court No. 2. Morales was ultimately appointed independent executrix of the estate on September 17, 2012. Thereafter, Pena was hired by Morales to prepare tax returns for the estate for the fiscal years of 2013, 2014, and 2015. On March 5, 2016, the Aguilars filed litigation in the 384th District Court of El Paso County, naming Morales, Pena, Lillian Eller, and Morales's attorneys — William Leighner and Arthur Bayern — as defendants. In their petition, the Aguilars alleged causes of action of fraud and breach of fiduciary duty.
See re In Estate of Aguilar, No. 04-16-00381-CV, 2017 WL 4158092 (Tex. App.—San Antonio Sept. 20, 2017, pet. denied) (mem. op.); In re Estate of Aguilar, No. 04-16-00249-CV, 2016 WL 3796953 (Tex. App.—San Antonio July 13, 2016, no pet.) (mem. op.) (per curiam); In re Estate of Aguilar, No. 04-16-00655-CV, 2017 WL 603632 (Tex. App.—San Antonio Feb. 15, 2017, no pet.) (mem. op.) (per curiam); In re Estate of Aguilar, 492 S.W.3d 807 (Tex. App.—San Antonio 2016, pet. denied); In re Aguilar, No. 04-16-00027-CV, 2016 WL 402292 (Tex. App.—San Antonio Feb. 3, 2016, orig. proceeding) (per curiam); In re Estate of Aguilar, No. 04-13-00367-CV, 2014 WL 2443865 (Tex. App.—San Antonio May 28, 2014, orig. proceeding) (mem. op.); In re Estate of Aguilar, No. 04-13-00038-CV, 2014 WL 667516 (Tex. App.—San Antonio Feb. 19, 2014, orig. proceeding) (mem. op.); In re Aguilar, No. 04-13-00589-CV, 2013 WL 5297243 (Tex. App.—San Antonio Sept. 18, 2013, orig. proceeding) (per curiam); In re Aguilar, No. 04-13-00425-CV, 2013 WL 4501435 (Tex. App.—San Antonio Aug. 21, 2013, orig. proceeding) (mem. op.).
Subsequently, Leighner and Bayern filed a joint motion to dismiss the Aguilars' claims against them as baseless pursuant to Rule 91a of the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 91a. The joint motion was filed in the 384th District Court of El Paso County, and the matter was ultimately transferred to Bexar County Probate Court No. 2 on June 7, 2016 for further proceedings. Thereafter, the probate court granted Leighner and Bayern's joint motion, dismissing the Aguilars' claims against them with prejudice. The Aguilars attempted to appeal the probate court's order granting Leighner and Bayern's joint motion to dismiss, and we ultimately dismissed the appeal for lack of jurisdiction. See In re Estate of Aguilar, No. 04-16-00381-CV, 2017 WL 4158092, at *6 (Tex. App.—San Antonio Sept. 20, 2017, pet. denied) (mem. op.). In our opinion, we held the probate court's order was not final as it only disposed of the Aguilars' claims against Leighner and Bayern. Id. Based on the record before us at that time, the Aguilars' claims against Morales, Pena, and Eller had not been dismissed, nor had the claims been severed from the claims against Leighner and Bayern. Id.
In addition to the foregoing, it has come to our attention that in Cause No. 04-16-00503-CV, In the Estate of Ramiro Aguilar, Jr., Deceased, Morales filed a motion to dismiss the Aguilars' claims against her as baseless — again, pursuant to Rule 91a of the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 91a. On July 7, 2016, the probate court granted Morales's motion, dismissing all of the Aguilars' claims against her with prejudice. Moreover, the record in this case reflects that on October 6, 2016, Pena filed a motion for summary judgment, arguing he owed no duty to the Aguilars. Pena also moved for sanctions against the Aguilars pursuant to section 10.001(2) of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE §10.001(2) (West 2017). After a hearing at which the Aguilars failed to appear, the probate court entered summary judgment in favor of Pena on all claims and causes of action asserted against him. The court also entered an order imposing sanctions against the Aguilars. However, neither of the orders dispose of the Aguilars' claims against Eller. Nor does the record contain an order indicating the claims asserted against Pena have been severed from the claims asserted against Eller.
A review of the record in Cause No. 04-16-00503-CV, In the Estate of Ramiro Aguilar, Jr., Deceased, which was submitted on briefs on September 6, 2017, contains a copy of the order dismissing the Aguilars' claims against Morales with prejudice.
As we stated in our prior opinion regarding this matter, generally, an appeal may be taken only from a final judgment. See Estate of Aguilar, 2017 WL 4158092, at *4 (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)). However, "[p]robate proceedings are an exception to the 'one final judgment' rule; in such cases, 'multiple judgments final for purposes of appeal can be rendered on certain discrete issues.'" Id. (quoting De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006)). To determine whether a probate court order is final for purposes of appeal, we first give controlling effect to an express statute. Id. In the absence of an express statute, we then determine a probate court order to be final and appealable only if it "dispose[s] of all parties or issues in a particular phase of the proceedings." Id. (quoting De Ayala, 193 S.W.3d at 579). If the order does not end a phase of the proceedings, but instead sets the stage for the resolution of the proceedings, then the order is interlocutory. Id.
Based on the foregoing, it appeared that this matter presented us with another situation in which we lacked jurisdiction because the orders the Aguilars are attempting to appeal appear to be part of a larger proceeding as they do not dispose of all of the parties, specifically Eller. Because the orders in this record did not appear to be final and appealable, we ordered appellants to file a written response in this court on or before February 21, 2018, showing cause why this appeal should not be dismissed for want of jurisdiction. In our order, we advised appellants that if no satisfactory response was filed within the time provided, the appeal would be dismissed. See TEX. R. APP. P. 42.3(c).
On February 17, 2018, appellants filed a response, arguing this court has jurisdiction to consider the appeal because the November 18, 2016 orders being appealed were void. Appellants argue the orders are void because the probate court lacked subject matter jurisdiction to enter them because at the time the orders were entered, the estate was closed. According to the Aguilars, the estate was closed on February 26, 2016 - thirty days after the entry of the Order Approving Final Account on January 27, 2016. Therefore, according to the Aguilars, the probate court lacked subject matter jurisdiction to enter any subsequent orders, particularly with regard to the litigation matter that was transferred from El Paso County to Bexar County on June 7, 2016.
However, for reasons we explained in our prior opinion, In the Estate of Aguilar, Deceased, we disagree. See 2017 WL 4158092, at *2. In that opinion, we held the entry of the Order Approving Final Account did not operate as an event that closed the estate because it did not constitute a closing report or notice of closing of the estate. Id. at *2; see TEX. EST. CODE ANN. § 405.004 (West 2014) (stating independent executrix may close estate by filing closing report or notice of closing estate).
Accordingly, because neither of the November 18, 2016 orders dispose of all the Aguilars' claims against Eller, and there is nothing in the record to indicate the claims against Pena have been severed from the claims against Eller, we hold the November 18, 2016 orders are not final and appealable. See Estate of Aguilar, 2017 WL 4158092, at *6. As we pointed out in our prior opinion, the orders are part of a larger proceeding, operating more like a "prelude" given they set the stage for resolution of the proceeding. Id. We therefore dismiss the appeal for want of jurisdiction and order the Aguilars to pay all costs incurred as a result of this appeal.
Marialyn Barnard, Justice