gene-c-steele-individually-and-as-independent-of-the-estate-of-william-b ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00266-CV

Gene C. Steele, et ux Sally Steele,

and Gene C. Steele as the Executor

of the Estate of William B. Duke,

Deceased, and Tom F. Simmons,

                                                                      Appellants

 v.

John B. McDonald, Bobby Reed, JOE

Cannon, Cara H. Hughes, eugene t.

McLaughlin, Stanley F. Swenson,

Jerry Calhoon, J. Christopher

Kolstad, Bobby Freeman, Mitchell

Energy Corp., and Brian L. Gibson,

                                                                      Appellees

From the 77th District Court

Limestone County, Texas

Trial Court No. 22179-A

MEMORANDUM DISSENTING Opinion to order

          An independent executor can do anything the decedent could do if he was still alive, unless there is some limitation upon the independent executor’s powers at the time of the appointment.[1]  See generally cases cited in Kanz v. Hood, 17 S.W.3d 311, 316-317 (Tex. App.—Waco 2000, pet. denied) (Gray, C.J., dissenting).  I would include in that expansive statement of authorized acts the ability to appear on behalf of the estate and act as the decedent could with regard to being the litigant in a judicial proceeding.  Today’s holding to the contrary by the majority causes me grave concern for truly cost effective independent administration of estates in Texas.  For this reason and as explained below, I dissent.

          Texas has long been recognized for the truly effective independent administration of a decedent’s estate.  Probate planning in other states frequently involves setting up trusts during the life of the decedent to own and control assets and, more importantly, keep them from becoming part of the decedent’s estate subject to the administration of the probate court at the time of the decedent’s death.  That type planning, and its attendant costs, is avoided in Texas by our very effective and efficient administration of estates using truly independent administrators, though it may be used in Texas for other purposes.  All over Texas estates are being probated, inventories prepared and filed, and estates being closed without an attorney being involved.  I do not see how that can continue under the holding of the majority that although Gene had appeared as his own attorney, representing himself individually and as independent executor of Duke’s Estate, “Gene, as independent executor, is either represented by Beale [an attorney] or not currently represented in this matter.”  Maj. Op. pg. 4.

          I find no help or support for this holding in the citation of out of state authorities on this issue.  And I note that even that authority is divided.  But unless those states provide for Texas style independent administration, and the person attempting to represent the estate in those cases was appointed as the independent executor of the estate, and also unless the powers of the independent administrator in those states are as broad as the powers of an independent administrator in Texas, the discussion of out of state authority is suspect and the reliance on that authority is misplaced.

          As I previously stated, I would already have stricken the brief filed by attorney Beale for failure to comply with the rules.  See Steele v. McDonald, 195 S.W.3d 349, 350 (Tex. App.—Waco 2006, order) (Gray, C.J., concurring to letter order).[2] Likewise, I would now strike the brief tendered by Gene Steele for the same reason, noncompliance with the rules.  I would then notify all four appellants that they have one final opportunity to file a compliant brief or their appeal will be dismissed for want of prosecution due to the failure to file a brief that complies with the rules.

          Finally, to placate the concern of the majority, we could specifically notify Gene Steele in his capacity as independent executor that there may be an issue of whether, as independent executor, he can appear as the personal representative of an estate in litigation involving the estate.  For certain, I would not decide this issue without briefing as the majority has done.  The expansive holding of the majority means that nothing can be done by a personal representative in any judicial proceeding other than via an attorney.  This is not the law.  Further, this holding will come as an enormous surprise to the personal representatives of estates that have been and are currently being probated and who regularly represent the estate as independent executor in judicial proceedings without being represented by counsel.

          I join no part of the majority’s order.

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed October 18, 2006

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[1] None of the parties have briefed this issue so we have not been provided with the documentation or discussion of case authorities that would help us resolve the scope of Gene Steele’s appointment.

[2] Though, based on subsequent events, I now question the majority’s resolve to apply the rules consistently to all litigants, I would at least be consistent for this proceeding.

serif">Vinson did not perfect an appeal. Because the order did not grant a new trial and the State did not assert any other permissible ground for appeal, the State cannot appeal. See Tex. Code Crim. Proc. Ann. art. 44.01 (Vernon Supp. 1999) (permitting the State to appeal some matters). The judgment of conviction is final. Thus, we dismiss this appeal for want of jurisdiction.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Davis,

          Justice Vance, and

          Justice Gray

Dismissed

Opinion delivered and filed November 3, 1999

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