in Re Somaiah Kholaif ( 2018 )

Petition for Writ of Mandamus Denied and Opinion filed November 8, 2018.
In The
Fourteenth Court of Appeals
NO. 14-18-00825-CV
IN RE SOMAIAH KHOLAIF, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
Probate Court No. 3
Harris County, Texas
Trial Court Cause No. 449,677
MEMORANDUM OPINION
On September 20, 2018, relator Somaiah Kholaif filed a petition for writ of
mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West Supp. 2017); see
also Tex. R. App. P. 52. In the petition, relator contends the Honorable Rory R. Olsen,
presiding judge of the Probate Court No. 3 of Harris County, abused his discretion in
granting a motion to sever.
Relator filed a bill of review challenging the trial court’s granting of a summary
judgment upholding a premarital agreement divesting relator of homestead and
inheritance rights. Relator is the widow of the decedent in the estate subject to the
underlying probate administration. Real party in interest, Ziyad Safi, is the executor of
the estate. Along with her bill of review, relator requested a declaratory judgment
regarding the premarital agreement, and asserted claims for damages against the estate
and against Mazen Atieh, the notary public who witnessed signatures on the premarital
agreement. On motion of the executor, the trial court severed the claims for damages
against the estate and against Atieh from the probate action and relator’s other claims.
With certain exceptions not in play in this proceeding, to obtain mandamus relief
relator must show both that the trial court clearly abused its discretion and that relator
has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124,
135–36 (Tex. 2004) (orig. proceeding).
A trial court has broad discretion in the matter of severance and consolidating of
causes. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.
1990). The controlling reasons for allowing a severance are avoiding prejudice, doing
justice, and increasing convenience. Id. A claim is properly severable if (1) the
controversy involves more than one claim, (2) the severed claim is one that would be
the proper subject of a lawsuit if independently asserted, and (3) the severed claim is
not so interwoven with the remaining action that they involved the same facts and
issues. In re State, 355 S.W.3d 611, 614 (Tex. 2011) (orig. proceeding).
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The severed claims consist of (1) a claim against the estate based on alleged false
representations by Atieh and on an alleged conspiracy between the decedent and Atieh
to fraudulently deprive relator of her inheritance and homestead rights1 and (2) a claim
against Atieh for alleged neglect of his duties as a notary public. Relator’s remaining
claims are her bill of review and request for declaratory judgment, which are reiterative
of the issues disposed in the summary judgment. Additionally, the probate of the estate
is ongoing.
1. More Than One Claim
Relator filed an amended petition in the probate action, after the summary
judgment was signed, wherein she asserted four claims. Two of her claims were
severed. Because there is more than one claim involved in this controversy, the first
inquiry is met. See Guar. Fed. Sav. Bank, 793 S.W.2d at 658 (finding multiple claims
arising out of one controversy meets the first prong of the properly severable inquiry).
2. Proper Subject of Independent Lawsuit
Relator’s claim against Atieh is independently actionable under section 121.014
of the Texas Civil Practice & Remedies Code. Tex. Civ. Prac. & Rem. Code § 121.014.
This section of the code gives persons injured by neglect or failure of a notary public a
claim against that official. Id. (providing “A person injured by the failure, refusal, or
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Though some courts have indicated that conspiracy is an independent claim, other courts have
indicated that conspiracy is a vicarious-liability theory. Compare Massey v. Armco Steel Co., 652
S.W.2d 932, 934 (Tex. 1983), with Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 925–26 (Tex.
1979). We need not resolve this issue to dispose of this original proceeding.
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neglect of an officer to comply with a provision of this chapter has a cause of action
against the officer to recover damages resulting from the failure, refusal, or neglect of
the officer.”).
With regard to relator’s claim against the decedent’s estate, although it is an action to
recover from the estate, it may be brought in an independent action for conspiracy
outside of the probate administration because it is not incident to the estate. See Tex.
Est. Code Ann. § 31.002 (providing a non-exclusive list of matters qualifying as
“appertaining to” and “incident to” an estate over which a probate court has
jurisdiction).When a matter raised in a separate lawsuit is not expressly mentioned in
the Estates Code’s definition of matters appertaining to and incident to an estate, courts
have employed the “controlling issue” test to determine whether the matter meets that
definition. In re Puig, 351 S.W.3d 301, 304 (Tex. 2011). Under the controlling-issue
test, a suit is appertaining to or incident to an estate when the controlling issue is the
settlement, partition, or distribution to an estate. Id. Relator contends the decedent and
Atieh engaged in a conspiracy regarding the premarital agreement. The controlling
issues do not concern the settlement, partition, or distribution to an estate, but instead
alleged fraud and conspiracy in relation to the premarital agreement. See In re SWEPI,
L.P., 85 S.W.3d 800, 805 (Tex. 2002) (finding the controlling issue in a declaratory
judgment action regarding royalty payments is not the settlement, partition, or
distribution of the estate).
3. Involve Same Facts and Issues
None of the severed claims is so interwoven with the probate action that they
involve the same facts and issues. The claims center on the premarital agreement. The
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probate action involves the administration of the decedent’s will and codicil. Atieh was
not the notary public for either the will or the codicil. Atieh would not be subject to the
probate action, but for relator’s claims against him. The facts and issues involved with
these claims are unrelated to the probate action. Relator’s bill of review and declaratory
judgment action are centered on the execution of the premarital agreement; however,
the claims merely repeat the claims made in the summary judgment, which the court
already granted in favor of real party in interest Safi. See Barton v. Fashion Glass and
Mirror, Ltd., 321 S.W.3d 641, 647 (Tex. App.—Houston [14th Dist.] 2010 no pet.)
(finding claims are not too interwoven where one is based on interpretation of contract
and other is for fraud).
For the above reasons, we find the trial court did not abuse its discretion in
granting the motion to sever. Having found no abuse of discretion, we need not address
whether relator would have an adequate remedy at law.
Relator has not shown that she is entitled to mandamus relief. Accordingly, we
deny relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Jamison and Brown.
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