Opinion
No. 06-12-00062-CV
08-02-2012
In re: THE ESTATE OF LINDA JOYCE VELVIN, DECEASED
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
The Estate of Linda Joyce Velvin, Deceased, comes to us on a petition for writ of mandamus directing the County Court of Bowie County to transfer the estate proceedings, in which there are various contested issues, to the County Court at Law of Bowie County. Because (1) the County Court must, on application by a party, transfer contested cases to the County Court at Law, and (2) the right to appeal is not a meaningful remedy in this situation, we conditionally grant the relief.
Relator, Jeri S. Calhoun, as Next Friend of Minor C.A., requests that we direct the respondent, County Court Judge Sterling Lacy of Bowie County, to transfer this case to the County Court at Law pursuant to Section 4E(a) of the Texas Probate Code. To understand the request, a little background is in order.
Velvin died May 4, 2008, at which time her last will and testament named James Naples "to Oversee who is to get what - my granddaughter [C.A.] need to be included." In June 2008, James Carlow, then judge of the County Court, appointed Naples as temporary administrator of Velvin's estate. The following year, Kyle Davis was appointed, instead of Naples, to serve as administrator of the estate pursuant to an agreement of the parties.
On February 28, 2012, sua sponte and ex parte, Lacy, having become the County Court Judge in the interim, appointed Alan Steuart from Houston, Texas, as guardian ad litem to protect C.A.'s interests, and appointed Houston attorney William Pieratt Demond as attorney ad litem for C.A. Davis objected to the ex parte appointments and filed a motion to transfer the case to the Bowie County Court at Law. Davis complained that he was not given notice of the appointments, that "[n]o necessity for the appointments ha[d] been shown," the appointments of Houston counsel were "an unnecessary expense and burden on this small estate," and that Demond was or is the attorney for Mark Lesher, an estate beneficiary.
The total value of the estate was found to be $43,773.65.
Lesher, Velvin's ex-husband, was named in the will to receive $1.03. Davis had represented Velvin in the divorce proceedings.
By order of April 13, 2012, the County Court discharged Steuart as guardian ad litem, but denied Davis' objections to the appointment of Demond as attorney ad litem. On May 7, 2012, the court appointed Winford L. Dunn as attorney ad litem to represent Velvin's unknown heirs and, sua sponte and without notice to Davis, entered orders removing Davis as administrator of Velvin's estate due to his "ultimate failure to provide a timely Inventory, Appraisal and List of Claims" and "misapplication of estate funds and property." Sam Russell was appointed as successor administrator.
On May 11, 2012, Calhoun, who is C.A.'s mother and a licensed attorney, filed an appearance of counsel on C.A.'s behalf, as well as an objection to Demond's appointment as C.A.'s attorney ad litem. On this same date, Calhoun, as next friend of C.A., filed a petition for declaratory judgment against Demond in Bowie County District Court seeking his removal as attorney ad litem for C.A. The suit referenced Calhoun's concern "about a possible conflict with Demond given that he is representing Mark Lesher, also beneficiary under the Will." The district court issued a temporary ex parte order requiring Demond to "cease and desist from acting as the Attorney Ad Litem" on behalf of C.A.
The County Court found that Calhoun lacked authority to represent C.A. and to file pleadings on her behalf.
On May 17, 2012, Davis filed an application for reinstatement and hearing. By letter dated May 22, 2012, Demond informed the court:
I have acquired evidence appearing to show that Mr. Kyle Davis . . . distributed material assets of the estate without this Court's consent. Specifically, Mr. Davis' initial inventory (filed October 30, 2009) listed a boat as part of the estate. Unfortunately, however, the boat was purportedly conveyed by Mr. Davis to Ms. Teresa McCraw as a testamentary bequest (and free of charge) two months before the inventory was ever filed herewith. This is potentially a fraud upon this Honorable Court, a blatantly egregious violation of the Rules, and/or a crime.Demond pointed out that McCraw was "represented by Nick Newton, an associate at Mr. Davis' law firm." He accused Davis of failing to "bring the missing boat to the attention of the Court" in a May 3, 2012, amended inventory; "fail[ing] to secure the decedent's vehicle before it was sold by a stranger to these proceedings"; "knowingly permitt[ing] Dr. James Naples to serve as the administrator" despite being a convicted felon; selling property without prior approval; and failing "to file annual reports in violation of Texas law." Citing the district court's restraining order, Demond reasoned, "I cannot fulfill this Honorable Court's mandate if I am held in contempt of a different Court," and asked the County Court to stay proceedings until the question of his appointment was resolved. At the conclusion of the letter, Demond asked the court to "[p]lease rest assured that I will not seek reimbursement from the estate for my time or expenses associated with this letter."
In the County Court, Calhoun reasserted her objection to Davis' removal and to the appointment of Demond, objected to the appointment of Russell and Dunn, and filed another motion to transfer the case to the County Court at Law. In district court, Demond answered Calhoun's suit and filed a plea to the jurisdiction.
On June 4, 2012, Calhoun moved to close administration of the estate in the County Court. She asserted that Davis had filed a final accounting, she was satisfied that all assets and claims of the estate were properly identified, that C.A. was the sole heir at law, and that McCraw had entered into a "Family Settlement Agreement . . . dispos[ing] of all claims the estate may have regarding any and all real and personal property." In this agreement, McCraw was to pay $19,000.00 to the estate for its interest in personal and real property and would
execute and deliver the title to the 1986 18' Fiberglass boat within 30 days of the date the County Court transfers the underlying Probate case to the County Court at Law or within 30 days of the removal of the current Administrator of the estate and the removal of the Attorney Ad Litem, William Demond . . . [but that McCraw] shall continue to store the 1986 18' Fiberglass boat, free of charge, but will continue to have the use of said boat and continue to maintain and insure same until C.A. attains the age of majority.
The County Court denied the motion to transfer to the County Court at Law on June 14, 2012, and found that Calhoun lacked authority to represent C.A. On June 19, 2012, this Court granted a stay of all proceedings in the County Court pursuant to Calhoun's unopposed motion for temporary relief.
(1) The County Court Must, on Application by a Party, Transfer Contested Cases to the County Court at Law
As a preliminary matter, we must determine whether we have jurisdiction to hear this case as a petition for writ of mandamus. Mandamus relief is proper when the trial court has abused its discretion and a party has no appellate remedy. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 840-44 (Tex. 1992) (orig. proceeding).
Calhoun argues that the trial court abused its discretion in failing to transfer the case pursuant to Section 4E because "[t]his case presents contested matters involving (1) the sua sponte appointment of Mr. William Demond, an attorney ad litem for minor beneficiary, C.A., (2) the removal of Mr. Kyle Davis as administrator/personal representative, and (3) the appointment of Mr. Sam Russell as successor administrator/personal representative." We must address whether there was an abuse of discretion. Prudential Ins. Co. of Am., 148 S.W.3d at 135-36.
In addition to this petition for writ of mandamus, a separate appeal complaining of the removal of Davis was filed.
In a county in which there is no statutory probate court or county court at law exercising original jurisdiction, the county court has original jurisdiction of probate proceedings. TEX. PROBATE CODE ANN. § 4C(a) (West Supp. 2012). However,
[i]n a county in which there is no statutory probate court, but in which there is a county court at law exercising original probate jurisdiction, when a matter in a probate proceeding is contested, the judge of the county court may, on the judge's own motion, or shall, on the motion of any party to the proceeding, transfer the contested matter to the county court at law. In addition, the judge of the county court, on the judge's own motion or on the motion of a party to the proceeding, may transfer the entire proceeding to the county court at law.TEX. PROB. CODE ANN. § 4E(a) (West Supp. 2012). The language of Section 4E is mandatory. If a party requests a transfer from a constitutional county court under this section, that court is without discretion to ignore the party's request. See In re Vorwerk, 6 S.W.3d 781, 785 (Tex. App.—Austin 1999, orig. proceeding); Jimmy Swaggart Ministries v. Tex. Commerce Bank Nat'l Ass'n, 662 S.W.2d 774, 776-77 (Tex. App.—Houston [14th Dist.] 1983, no pet.) (interpreting prior version of Section 4E). Thus, the County Court abused its discretion in failing to transfer the contested matters.
Calhoun asks that this Court either transfer the entire case to the County Court at Law, or, alternatively, transfer the contested matters concerning the appointment of Demond, the removal of Davis as administrator, and the appointment of Russell as successor administrator. Because transfer of the entire case is discretionary, we focus only on contested matters.
(2) The Right to Appeal Is Not a Meaningful Remedy in this Situation
If the court's denial of the Section 4E motion was a final, appealable order for which appeal is a meaningful remedy, mandamus will not lie. As described in Brittingham-Sada de Ayala v. Mackie:
Generally, appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Probate 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. at 192. The need to review "controlling, intermediate decisions before an error can harm later phases of the proceeding" has been held to justify this rule. Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex. App.—Austin 2000, pet. denied). Not every interlocutory order in a probate case is appealable, however, and determining whether an otherwise interlocutory probate order is final enough to qualify for appeal, has proved difficult.193 S.W.3d 575, 578 (Tex. 2006). If, as here, no specific statute provides for the appeal of a probate matter, we consider whether the order complained of adjudicated a substantial right, or whether it disposed of all issues in the phase of the proceeding for which it was brought to determine whether the order is appealable. Id.; see In re Butler, No. 09-09-00432-CV, 2009 WL 4841057, at *2 (Tex. App.—Beaumont Dec. 17, 2009, orig. proceeding) (mem. op.).
This Court has previously held that orders removing an administrator and appointing a successor administrator are final, appealable orders. In re Estate of Washington, 262 S.W.3d 903, 905-06 (Tex. App.—Texarkana 2008, no pet.); see Pine v. deBlieux, 360 S.W.3d 45, 46 n.1 (Tex. App.—Houston [1st Dist.] 2011, pet. filed); In re Estate of Boren, 268 S.W.3d 841, 845 (Tex. App.—Texarkana 2008, pet. denied) (because right to serve as executor named in will is substantial right, denial of that right is final, appealable order). But see In re Estate of Arizola, No. 04-11-00059-CV, 2011 WL 1852969, at *1 (Tex. App.—San Antonio May 11, 2011, no pet.) (per curiam) (mem. op.) (order appointing administrator not appealable). Even if the failure to transfer the contested removal of Davis and appointments of Demond and Russell is appealable, we must still ask whether the denial of the transfer motion itself is reviewable by mandamus.
Contested probate matters include all matters in a probate proceeding where the pleadings on file demonstrate that the parties to the suit have adopted adversarial positions. Jackson v. Thompson, 610 S.W.2d 519, 522 (Tex. App.— Houston [1st Dist.] 1980, no writ); see In re Estate of Bowie, No. 09-08-00204-CV, 2008 WL 4821617, at *2 (Tex. App.—Beaumont Nov. 6, 2008, orig. proceeding) (mem. op.). Demond complains that, although the appointments are contested, there are no pleadings on file which demonstrate the parties have adopted adversarial positions. We disagree. Calhoun petitioned the court for reinstatement of Davis and removal of Demond and Russell. See Estate of Bowie, 2008 WL 4821617 at *1-2 (objection to appointment of administrator presented contested matter); Krumnow v. Krumnow, 174 S.W.3d 820, 825 (Tex. App.—Waco 2005, pet. denied) ("the 'contested matter' before the county court, eligible for transfer, was whether to remove . . . the independent executor."); see also Butler, 2009 WL 4841057, at *2 ("The parties have taken adversarial positions over the foreign judgment, the application for independent administration, the inventory, discovery, transfer, family allowance, and the turnover application. The probate case is contested.").
Calhoun cites to In re SWEPI, L.P., 85 S.W.3d 800 (Tex. 2002) (orig. proceeding). In that case, the court first determined that the probate court lacked authority to transfer a case to itself pursuant to former Section 5B of the Texas Probate Code, and then asked the question whether the matter was reviewable by mandamus. Id. at 804, 808. Argument was made that the challenge presented was "merely a jurisdictional challenge and thus not subject to mandamus review." Id. at 808-09. This argument was rejected in SWEPI, because the court recognized that the probate court had taken jurisdiction away from another court by transferring the case to itself. Id. at 809. In this circumstance, mandamus relief was appropriate because the probate court interfered with the jurisdiction of another court. Id. Here, while it is true that the County Court is without discretion to ignore a transfer request if a party properly requests a Section 4E transfer due to the presence of a contested matter, the court has not interfered with the jurisdiction of any other court in simply denying the motion. See Vorwerk, 6 S.W.3d at 785; Jimmy Swaggart Ministries, 662 S.W.2d at 776-77 (interpreting prior version of Section 4E and deciding issue on direct appeal).
--------
In deciding whether remedy by appeal would be adequate, we consider whether the benefits of mandamus outweigh the detriments. Prudential Ins. Co. of Am., 148 S.W.3d at 135- 36. We find, as did our sister court in Butler, that permitting the County Court to proceed despite a mandatory requirement to transfer the case would result "in a waste of judicial resources," such that "any eventual appellate remedy would be inadequate." 2009 WL 4841057, at *3; see Vorwerk, 6 S.W.3d at 785; see also In re Estate of Castillo, No. 13-11-00703-CV, 2011 WL 6034292, at *1 (Tex. App.—Corpus Christi Nov. 18, 2011, orig. proceeding) (mem. op.) (granting petition for writ of mandamus for failure to transfer case pursuant to Section 4D of Texas Probate Code). Thus, mandamus relief is appropriate.
Accordingly, we lift the stay previously imposed in this case, conditionally grant the writ of mandamus, and rule that Respondent is obligated to transfer to the County Court at Law the contested matters involving Davis' removal as administrator, Russell's appointment as successor administrator, and Demond's appointment as attorney ad litem for C.A.
A writ will not issue unless Respondent fails to transfer this case within five days of the issuance of this opinion.
Josh R. Morriss, III
Chief Justice