in the Matter of the Estate of Eric Todd Rogoff ( 2016 )

Opinion filed December 22, 2016
In The
Eleventh Court of Appeals
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No. 11-14-00336-CV
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IN THE MATTER OF THE ESTATE OF ERIC TODD ROGOFF,
DECEASED
On Appeal from the County Court at Law No. 2
Ector County, Texas
Trial Court Cause No. 21406-13
MEMORANDUM OPINION
Because Inna Rogoff-Klein was dissatisfied with the probate court’s1 order on
certain claims against the Estate of Eric Todd Rogoff, deceased, she brought this
appeal. We affirm.
Eric Todd Rogoff died intestate on February 26, 2013. The probate court
entered an order on June 18, 2013, in which the court appointed Eric’s surviving
spouse, Maribel Rogoff, as administratrix of the Estate. About four months later, on
October 7, 2013, Inna Rogoff-Klein, who is Eric’s former spouse and the mother of
1
We note that the Ector County Court at Law No. 2 sat as a probate court in this matter.
I.R., Eric’s only child, filed an appearance in the case as I.R.’s next of friend. She
also objected to Maribel’s appointment as administratrix. Although the probate
court appointed Maribel as administratrix on June 18, 2013, Mirabel did not qualify
as administratrix until June 26, 2014, after Maribel’s second lawyer discovered and
began to correct deficiencies that existed when he began to represent Maribel in the
proceedings.
After Maribel officially qualified as administratrix, she approved seven separate
“Authenticated Unsecured Claims” related to the estate. She sent six of the orders
to Inna’s attorney on July 22, 2014, and the seventh on July 23, 2014. On August 21,
2014, the probate court entered seven separate orders on the claims. Inna did nothing
to object to the claims in the probate court before the probate court signed the orders.
In none of the seven orders did the probate court include specific language as to
whether the claims were allowed, denied, or allowed in part and denied in part.
Further, the claims were not classified. On September 9, 2014, by letter to the
probate court, Maribel’s attorney asked the court to correct the orders and to include
the appropriate language. See TEX. EST. CODE ANN. § 355.055 (West 2014). The
clerk file-marked the request on September 11, 2014.
The next day, Inna complained about the claims for the first time when she sent
her original “Motion to Reconsider Order for Payment and Objections to Claims” to
the probate court. The clerk of the probate court filed the motion on September 15,
2014. Inna mailed a supplemental motion to the clerk on September 23, 2014; the
clerk filed it on September 29, 2014. Maribel responded, and on November 6, 2014,
the probate court denied the motion to reconsider. The probate court also declined
to consider Inna’s supplement to the motion because it was untimely. Further, the
probate court entered seven separate orders that corrected the orders it had originally
entered.
2
We think it best to set forth Inna’s issues and arguments as she has presented
them in the argument portion of her brief. Inna contends in her first issue on appeal
only that the probate court abused its discretion when it refused to consider her
supplemental motion on the grounds that Inna filed it untimely. She takes the
position that the latter motion was a supplement and therefore related back to the
time that she filed the original motion to reconsider.
Even if Inna’s “relation back” theory is correct, she did not timely file the
original motion. Section 355.054(a) of the Estates Code provides that any objection
to a claim must be filed before the court acts on the claim. EST. § 355.054(a).
Although there were some irregularities in the orders that the probate court originally
signed, the probate court “acted on” the claims on August 21, 2014. In their briefs
filed in this court and the documents they filed in the probate court, the parties
demonstrated—and the probate court agreed—that the probate court had approved
the claims on August 21, 2014. As evidence of that mutual understanding, we note
that Inna would not have filed a motion to reconsider unless the probate court had
already acted on the claims. Also, neither would Maribel have any need to correct
the orders to add procedurally required language unless the probate court had already
acted upon the claims. Further, at the hearing on November 6, 2014, the probate
court stated:
One, we are here today because the Court does acknowledge that
the orders for the claims that the Court signed were deficient. I have
already granted those claims. And I have acknowledged those claims
are valid claims. I granted the order. It just didn't have the proper
wording in it for that.
So as far as arguing whether or not the claims are valid, that’s a
moot point because the Court has already said and my intent was in
signing those orders were to say those were valid claims. Your time to
object expired before I signed those orders. So we’re here basically just
so we can get those orders fixed.
3
Additionally, the probate court explained in its findings that the September 9
letter was equivalent to a motion in which Maribel asked the probate court to correct
and modify its judgment. Clearly, it was the intent of the probate court to approve
the seven claims on August 21, 2014. Accordingly, we hold that the probate court
“acted on” the claims on August 21, 2014. Inna did not timely file the original
motion. Because the original motion to reconsider was untimely, it avails Inna
nothing to relate the supplement back to it. Inna maintains that Maribel agreed that
the original motion was timely. Inna misunderstands Maribel’s position. Maribel
acknowledges only that the motion was timely for the purpose of extending the
probate court’s plenary power—she acknowledges nothing more. Because Inna did
not timely contest the claims that Maribel filed, we overrule Inna’s first issue on
appeal.
In Part A of her second issue on appeal, Inna maintains that the attorney’s fee
claim is excessive. Because Inna did not timely object to the claim, we overrule
Issue No. 2(A).
In Part B of her second issue, Inna takes the position that Maribel did not
present her claims as administratrix within six months of her qualification. Finally,
in Part C of Issue Two, Inna claims that the probate court erred when it allowed
Maribel to present the seven corrected orders to the probate court because the probate
court had set only the motion to reconsider, and any supplements, for hearing.
We will first discuss Part B of Inna’s second issue. Although many things
happened in this case before June 26, 2014, the fact remains that Maribel did not
qualify as the administratrix of the Estate until June 26, 2014, the date on which she
executed the “Oath of Administratrix.” See EST. § 305.002. Maribel had six months
after that date to file her claims. See EST. § 355.201(b). Maribel timely filed the
claims. We overrule Issue No. 2(B).
4
As to Part C of Issue Two, as we have said, Inna complains that the probate
court had set for hearing only her motions for reconsideration and, therefore, erred
when it considered Maribel’s request to correct the orders. As Maribel points out,
however, Inna’s request to reconsider and Maribel’s request to correct the orders
were effective, under Rule 329b of the Texas Rules of Civil Procedure, to extend the
plenary power of the probate court to include November 6, 2014, the date of the
hearing and the date that the probate court signed the corrected orders. See TEX. R.
CIV. P. 329b. First, because the probate court signed the corrected orders at a time
when it had plenary power, it could have corrected them on its own motion. See id.;
State v. $50,600, 800 S.W.2d 872, 876 (Tex. App.—San Antonio 1990, writ denied).
Additionally, the option of whether to correct the orders was necessarily subsumed
within Inna’s motion to reconsider. We overrule Issue No. 2(C).
We affirm the November 6, 2014 order of the probate court.
JIM R. WRIGHT
CHIEF JUSTICE
December 22, 2016
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
5