Opinion
No. 06-21-00009-CV
03-18-2021
IN THE ESTATE OF JOEL R. BARTON, JR., DECEASED
On Appeal from the County Court at Law No. 2 Brazos County, Texas
Trial Court No. 16,844-PC Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Betty Barton has filed a petition for a permissive appeal from the Brazos County trial court's order granting partial summary judgment in favor of Joel R. Barton, III, the executor (Executor) of the Estate of Joel R. Barton, Jr., Deceased. To be entitled to a permissive appeal, Rule 28.3 of the Texas Rules of Appellate Procedure and Section 51.014(d) of the Texas Civil Practice and Remedies Code require that the order sought to be appealed involve "a controlling question of law as to which there is a substantial ground for difference of opinion" and that an "immediate appeal . . . may materially advance the ultimate termination of the litigation." TEX. R. APP. P. 28.3(d)(3)-(4); TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d); see TEX. R. CIV. P. 168. We deny the petition, because (1) the presented question does not constitute a controlling question of law and (2) resolution of the presented question would neither decide a substantial ground for a difference of opinion nor materially advance the ultimate end of this litigation.
Originally appealed to the Tenth Court of Appeals in Waco, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001. We are unaware of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
When Joel R. Barton, Jr., married Betty in 1981, he was sixty-five and she was sixty. Both had children from previous marriages, and both entered into the 1981 marriage with separate property. In 2014, after Joel and Betty had been married for thirty-three years, the couple executed a community property agreement (Agreement), which purported to convert their respective separate property into community property. The Agreement specifically purported to convert "any current or future mineral lease(s)" and "royalties received or to be received from said mineral leases" into community property. At the same time, Joel executed a codicil to his will. The codicil and the Agreement were both drafted by Kimberley Gray, one of Betty's children from a previous marriage.
Joel was ninety-eight when he signed the Agreement.
When Joel died at the age of 102 in 2018, his will and codicil were admitted to probate. In 2019, the Executor submitted an inventory to the trial court for approval. After the trial court approved the inventory, Betty objected on the basis that it disregarded the Agreement and listed the mineral interests as Joel's separate property. The Executor filed a traditional motion for summary judgment contesting the validity of the Agreement, claiming, among other things, that the Agreement was void because Joel did not receive proper disclosure regarding the Agreement's legal effect in accordance with Section 4.205 of the Texas Family Code. See TEX. FAM. CODE ANN. § 4.205.
Section 4.202 of the Texas Family Code states, "At any time, spouses may agree that all or part of the separate property owned by either or both spouses is converted to community property." TEX. FAM. CODE ANN. § 4.202. Section 4.203(a) of the Texas Family Code provides that an agreement to convert the separate property of one or both spouses to community property must be in writing and must be signed by both spouses. The agreement must also identify the property being converted and must "specify that the property is being converted to the spouses' community property." TEX. FAM. CODE ANN. § 4.203(a)(1). Section 4.203(b) provides, "The mere transfer of a spouse's separate property to the name of the other spouse or to the name of both spouses is not sufficient to convert the property to community property under this subchapter." TEX. FAM. CODE ANN. § 4.203(b).
An agreement to convert separate property to community property is unenforceable if the spouse against whom it is to be enforced did not "receive fair and reasonable disclosure of the legal effect of converting the property to community property." TEX. FAM. CODE ANN. § 4.205(a)(2). The statute also provides that, if the agreement includes certain statutory language, or language that is substantially similar to that set forth in the statute, and that language is "prominently displayed in bold-faced type[ and] capital letters," it "is rebuttably presumed to provide a fair and reasonable disclosure of the legal effect of converting property to community property." TEX. FAM. CODE ANN. § 4.205(b).
The presumptive "fair and reasonable disclosure of the legal effect of converting property to community property" reads:
"THIS INSTRUMENT CHANGES SEPARATE PROPERTY TO COMMUNITY PROPERTY. THIS MAY HAVE ADVERSE CONSEQUENCES DURING MARRIAGE AND ON TERMINATION OF THE MARRIAGE BY DEATH OR DIVORCE. FOR EXAMPLE:TEX. FAM. CODE ANN. §4.205(b).
"EXPOSURE TO CREDITORS. IF YOU SIGN THIS AGREEMENT, ALL OR PART OF THE SEPARATE PROPERTY BEING CONVERTED TO COMMUNITY PROPERTY MAY BECOME SUBJECT TO THE LIABILITIES OF YOUR SPOUSE. IF YOU DO NOT SIGN THIS AGREEMENT, YOUR SEPARATE PROPERTY IS GENERALLY NOT SUBJECT TO THE LIABILITIES OF YOUR SPOUSE UNLESS YOU ARE PERSONALLY LIABLE UNDER ANOTHER RULE OF LAW.
"LOSS OF MANAGEMENT RIGHTS. IF YOU SIGN THIS AGREEMENT, ALL OR PART OF THE SEPARATE PROPERTY BEING CONVERTED TO COMMUNITY PROPERTY MAY BECOME SUBJECT TO EITHER THE JOINT MANAGEMENT, CONTROL, AND DISPOSITION OF YOU AND YOUR SPOUSE OR THE SOLE MANAGEMENT, CONTROL, AND DISPOSITION OF YOUR SPOUSE ALONE. IN THAT EVENT, YOU WILL LOSE YOUR MANAGEMENT RIGHTS OVER THE PROPERTY. IF YOU DO NOT SIGN THIS AGREEMENT, YOU WILL GENERALLY RETAIN THOSE RIGHTS."
"LOSS OF PROPERTY OWNERSHIP. IF YOU SIGN THIS AGREEMENT AND YOUR MARRIAGE IS SUBSEQUENTLY TERMINATED BY THE DEATH OF EITHER SOUSE OR BY DIVORCE, ALL OR PART OF THE SEPARATE PROEPRTY BEING CONVERTED TO COMMUNITY PROPERTY MAY BECOME THE SOLE PROPERTY OF YOUR SPOUSE'S HEIRS. IF YOU DO NOT SIGN THIS AGREEMENT, YOU GENERALLY CANNOT BE DEPRIVED OF OWNERSHIP OF YOUR SEPARATE PROPERTY ON TERMINATION OF YOUR MARRIAGE, WHETHER BY DEATH OR DIVORCE."
In response, Betty maintained, among other things, that Joel received a fair and reasonable disclosure of the legal effect of the Agreement. She further asserted that the Executor had the burden to show that Joel did not receive adequate disclosure and that the Executor failed to make such a showing. The trial court granted the Executor's motion for summary judgment on the basis that "no reasonable juror could find that Joel R. Barton, Jr.[,] received a fair and reasonable disclosure regarding the legal effect of the May 2, 2014[,] Community Property Agreement converting separate property to community property."
Betty's summary judgment response included the following evidence intended to show that Joel received the required statutory notice:
• The testimony of Robert Putz, Joel's financial advisor, that he told Joel that the Agreement would make "everything [he had] community property."
• The testimony of Robert Putz that Joel indicated that he understood what he was signing and that he told Joel that, if he signed the Agreement, it would make everything he owned community property.
• The testimony of Robert Putz that Joel had worked with other attorneys prior to or during his relationship with Merrill Lynch.
• The testimony of Kimberley Gray that she discussed the Agreement with Joel.
• The testimony of Kimberley Gray that Joel had several attorneys he could have called about the Agreement.
• The affidavit of Kimberley Gray that, when she provided the Agreement to Betty and Joel, she explained that by signing it, each would be changing their separately owned property into community property that would then be owned by them both in equal shares rather than separately.
• The affidavit of Kimberley Gray that she explained to Joel that the Agreement would turn property he owned separately into property that was jointly owned and controlled by him and Betty together and that his separate property would then be under their joint control, and Betty could do what she wanted with the property, and that by signing the Agreement, it would permanently make his separate property community property owned and controlled by both Betty and Joel even if they divorced or died.
(1) The Presented Question Does Not Constitute a Controlling Question of Law
"[T]he general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). On a party's motion or on its own initiative, however, a trial court may permit and appeal from an otherwise unappealable order if:
Neither party disputes that the order in question is otherwise unappealable. We, therefore, do not address the question of whether the trial court's order is subject to appeal under Section 32.001(c) of the Texas Estates Code. See TEX. EST. CODE ANN. § 32.001(c) ("A final order issued by a probate court is appealable to the court of appeals.").
(1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; andTEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d); see TEX. R. APP. P. 28.3. "We strictly apply statutes granting interlocutory appeals because they are a narrow exception to the general rule that interlocutory orders are not immediately appealable." CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011); see City of Houston v. Estate of Jones, 388 S.W.3d 663, 666 (Tex. 2012) (per curiam); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007); Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001); In re Estate of Fisher, 421 S.W.3d 682, 684 (Tex. App.—Texarkana 2014, no pet.).
(2) an immediate appeal from the order may materially advance the ultimate termination of the litigation.
With these precepts in mind, we must determine whether the trial court's summary judgment presents a controlling question of law. The order appealed from contains the following language:
The May 2, 2014 Property Agreement is null and void because no reasonable juror could find that Joel R. Barton, Jr.[,] received a fair and reasonable disclosure regarding the effect of the May 2, 2014[,] Community Property Agreement.
The Court finds that the legal sufficiency of the disclosure, if any, made to Joel R. Barton, Jr.[,] at the time he executed the May 2, 2014[,] Community Property Agreement is a controlling question of law. The traditional Motion for Summary Judgment by the Executor of the Estate of Joel R. Barton, Jr.[,] Motion for Summary Judgment [sic] presents that question of law. Resolution of that question of law will materially advance termination of this probate litigation because it determines what assets are part of the estate of Joel R. Barton, Jr.
Having found the Traditional Motion for Summary Judgment by the Executor of the Estate of Joel R. Barton, Jr.[,] presents a controlling question of law and that resolution of that question will materially advance termination of this litigation, the Court grants permission to appeal this Order in accordance with Rule of Civil Procedure 168 and section 51.014(d) of the Civil Practice and Remedies Code.
We addressed a similar issue in In re Estate of Fisher, 421 S.W.3d 682 (Tex. App.—Texarkana 2014, no pet.). In that case, Fisher's daughter contested the application to probate her father's will on the ground that it was the product of undue influence. Id. at 683. The trial court determined that there was no evidence of undue influence and issued a partial no-evidence summary judgment in favor of the will's primary beneficiary. Id. Fisher's daughter then filed a petition for an accelerated permissive appeal pursuant to Section 51.014(d) of the Texas Civil Practice and Remedies Code. Id.; see TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d).
We recognized that the question of "[w]hether undue influence was exerted is an ultimate question of fact for the fact-finder" and further acknowledged that a "partial summary judgment . . . does not necessarily decide a controlling question of law." Id. at 684 (citing Trailblazer Health Enters., LLC v. Boxer F2, L.P., No. 05-13-01158-CV, 2013 WL 5373271, at *1 (Tex. App.—Dallas Sept. 23, 2013, no pet.) (mem. op.); JVC Paradise Cove Marina, LP v. Herman, No. 03-13-00569-CV, 2013 WL 4816597, at *1 (Tex. App.—Austin Sept. 6, 2013, no pet.) (mem. op.); State Fair of Tex. v. Iron Mountain Info. Mgmt., Inc., 299 S.W.3d 261, 264 (Tex. App.—Dallas 2009, no pet.)). As stated by our sister court,
The statute does not contemplate permissive appeals of summary judgments where the facts are in dispute. Instead, permissive appeals should be reserved for determination of controlling legal issues necessary to the resolution of the case. While the issue in the summary judgment is central to [the party]'s claim, its resolution does not rest on a controlling legal issue or materially advance the termination of the litigation.Diamond Prods. Int'l, Inc. v. Handsel, 142 S.W.3d 491, 494 (Tex. App.—Houston [14th Dist.] 2004, no pet.). Like Handsel, we concluded that Fisher involved "a controlling fact issue, not a legal one." Fisher, 421 S.W.3d at 685. Consequently, the trial court's order could not be considered via an accelerated permissive appeal. Id. at 686.
Given the fact-intensive nature of the question before the trial court, the same reasoning logically applies here to preclude our review of this partial summary judgment. Our sister court has recognized that, "though it may be a rare occurrence, it is possible that, in some cases, a controlling question of law as to which there is a substantial ground for difference of opinion might arise in the context of determining whether a fact issue exists in a summary-judgment contest." Handsel, 142 S.W.3d at 496. We do not believe this case presents that rare occurrence. We, therefore, decline to find that the application of summary judgment standards to the factual dispute in this case constitutes a controlling question of law. See, e.g., King-A Corp. v. Wehling, No. 13-13-00100-CV, 2013 WL 1092209, at *3 (Tex. App.—Corpus Christi Mar. 14, 2013, no pet.) (mem. op.).
(2) Resolution of the Presented Question Would Neither Decide a Substantial Ground for a Difference of Opinion nor Materially Advance the Ultimate End of this Litigation
Yet, even if we were to determine that the trial court's order involved a question of law, the petition nevertheless fails to satisfy the requirements for a permissive appeal. That is because nothing indicates that there is presented here a substantial ground for difference of opinion, the resolution of which will materially advance the ultimate termination of the litigation. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d)(1). A "controlling legal question as to which there is a substantial ground for difference of opinion," the immediate appeal from which will "materially advance the ultimate termination of the litigation" has been described as follows:
Trial courts are authorized to "decide matters that, though ordinarily fact questions, have become questions of law because 'reasonable minds cannot differ on the outcome.'" JPMorgan Chase Bank, N.A. v. Orca Assets G. P., L.L.C., 546 S.W.3d 648, 653 (Tex. 2018); see City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005) ("Judgment without or against a jury verdict is proper at any course of the proceedings only when the law does not allow reasonable jurors to decide otherwise.").
If resolution of the question will considerably shorten the time, effort, and expense of fully litigating the case, the question is controlling . . . . Substantial grounds for disagreement exist when the question presented to the court is novel or difficult, when controlling . . . law is doubtful, when controlling . . . law is in disagreement with other courts of appeals, and when there simply is little authority upon which the district court can rely . . . . Generally, a district court will make [a finding that the appeal will facilitate final resolution of the case] when resolution of the legal question dramatically affects recovery in a lawsuit.Gulf Coast Asphalt Co., L.L.C. v. Lloyd, 457 S.W.3d 539, 545 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (quoting Renee Forinash McElhaney, Toward Permissive Appeal in Texas, 29 St. Mary's L.J. 729, 747-49 (1998)). Conversely, when other issues are left pending in the litigation, ultimate termination of the litigation is not advanced by allowing immediate appeal of an otherwise interlocutory order. Harden Healthcare, LLC v. OLP Wyoming Springs, LLC, No. 03-20-00275-CV, 2020 WL 6811994, at *1 (Tex. App.—Austin Nov. 20, 2020, no pet.) (mem. op.); see ADT Sec. Servs., Inc. v. Van Peterson Fine Jewelers, No. 05-15-00646-CV, 2015 WL 4554519, at * 3 (Tex. App.—Dallas July 29, 2015, no pet.) (mem. op.) (permissive appeal would not materially advance ultimate termination of litigation because, regardless of result on appeal, "neither party would seek judgment without further litigation"). Ultimately, a permissive appeal should "provide a means for expedited appellate disposition of focused and potentially dispositive legal questions." Armour Pipe Line Co. v. Sandel Energy, Inc., No. 14-16-00010-CV, 2016 WL 514229, at *4 (Tex. App.—Houston [14th Dist.] Feb. 9, 2016, no pet.) (mem. op.). This purpose is not served when a permissive appeal "is used to obtain piecemeal appellate review of ordinary interlocutory summary judgment orders." Id.
In granting partial summary judgment, the trial court ruled on only one issue that could affect this case. Issues raised in the Executor's motion for summary judgment, and left unresolved in the trial court, include whether the Agreement is invalid because it fails to identify, or adequately identify, any existing separate property for conversion to community property; whether the Agreement complies with the Statute of Frauds; and whether the Agreement satisfies the recording statutes for conveying real-property interests in Texas. If we were to grant permission to appeal and Betty were successful on interlocutory appeal of this issue, we would reverse the partial summary judgment. In that circumstance, the Executor's remaining summary judgment issues would, at the least, require resolution. Finally, nothing in the record suggests that the issue before the trial court presented a novel or difficult legal question or one that presents a conflict among the courts of appeals. See Gulf Coast Asphalt Co., LLC, 457 S.W.3d at 544.
For these reasons, we deny the petition for permissive appeal.
Betty has requested that, if we find that the appeal does not satisfy the requirements of a permissive appeal, we consider the petition as a motion for leave to file a petition for writ of mandamus. No such motion is required. Because different appellate rules and legal standards apply, we decline to treat the petition as one seeking mandamus relief. --------
Josh R. Morriss, III
Chief Justice Date Submitted: March 17, 2021
Date Decided: March 18, 2021