Wendolyn Messner, as Dependent Administrator v. Mark L. Boon, and Boon Shaver Echols Coleman & Goolsby, P.L.L.C. ( 2015 )

ACCEPTED
06-14-00020-cv
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
1/5/2015 3:35:28 PM
DEBBIE AUTREY
CLERK
No. 06-14-00020-CV
________________________________________________________________
FILED IN
6th COURT OF APPEALS
In the Court of Appeals of Texas TEXARKANA, TEXAS
Sixth District 1/5/2015 3:35:28 PM
Texarkana, Texas DEBBIE AUTREY
Clerk
________________________________________________________________
WENDOLYN MESSNER, DEPENDENT ADMINISTRATOR
Appellant
v.
MARK L. BOON, BOON SHAVER ECHOLS COLEMAN & GOOLSBY, P.L.L.C.,
Appellees
________________________________________________________________
On Appeal from the
County Court at Law of Rusk County, Texas
Hon. Chad Wes Dean
Trial Court Cause No. 02-043 A
________________________________________________________________
APPELLANT’S MOTION FOR REHEARING
________________________________________________________________
PAUL W. TURNER
Texas Bar No. 24037619
400 S. Alamo, Suite A
Marshall, Texas 75670
(903) 935-0135 (phone)
(903) 935-0235 (facsimile)
pturner@thelawofficeofpwt.com
COUNSEL FOR APPELLANT
1
TABLE OF CONTENTS
Cover ....................................................................................................................... 1
Table of Contents ..................................................................................................... 2
Index of Authorities ................................................................................................. 3
Issues Presented for Review .................................................................................... 5
Misstatements of Facts and Law in the Court’s Opinion ........................................ 6
Argument ............................................................................................................... 14
Prayer ..................................................................................................................... 21
Certificate of Compliance and Certificate of Service ............................................ 22
Appendix Table of Contents .................................................................................. 23
2
INDEX OF AUTHORITIES
CASES
Belt v. Oppenheimer, Blend, Harrison & Tate, Inc.,
192 S.W.3d 780, 787 (Tex. 2006) ......................................................... 11, 18-19
Borissoff v. Taylor & Faust,
15 Cal. Rptr. 3d 735, 739 (Cal. 2004) ............................................................... 19
Bookman v. Davidson,
136 So. 3d 1276, 1278-80 (Fla. 1st DCA 2014) ............................................... 19
Brightwell v. Barlow, Gardner, Tucker & Garsek,
619 S.W.2d 249, 251 (Tex. Civ. App.—Fort Worth 1981, no writ) ................ 12
Isaacs v. Schleier,
356 S.W.3d 548, 559 (Tex. App.—Texarkana 2011, pet. denied) ........ 14-15
Hall v. Huff,
957 S.W.2d 90, 95 (Tex. App.—Texarkana 1997, pet. denied) ....................... 16
Huie v. DeShazo,
922 S.W.2d 920, 925 (Tex. 1996) .................................................................... 12
Limestone Prods. Distrib., Inc. v. McNamara,
71 S.W.3d 308, 311 (Tex. 2002) ........................................................................ 9
NationsBank of Tex., N.A. v. Akin, Gump, Hauer & Feld, L.L.P.,
979 S.W.2d 385, 391 (Tex. App.—Corpus Christi 1998, pet. denied) ............ 12
Overton v. Bengel,
139 S.W.3d 754, 759 (Tex. App.—Texarkana 2004, no pet.) .......................... 12
Read v. United States ex rel. Department of Treasury,
169 F.3d 243, note 8 (5th Cir. 1999) .................................................................. 6
Smith v. O’Donnell,
288 S.W.3d 417, 420-21 (Tex. 2009) ...................................................... 6, 16-18
3
Vinson & Elkins v. Moran,
946 S.W.2d 381, 387, 398
(Tex. App.—Houston [14th Dist.] 1997, writ dism'd) ............................... 11, 19
STATUTES
I.R.C. §2010 ............................................................................................................. 6
I.R.C. §2056 ............................................................................................................. 6
I.R.C. §2505 ............................................................................................................. 6
Tex. Estates Code §351.054 .................................................................................. 17
Tex. Estates Code §351.151 .................................................................................. 17
Tex. Estates Code §361.153 .................................................................................. 18
Tex. Prob. Code §224 ............................................................................. 5, 11, 17-20
Tex. Prob. Code §233 ............................................................................................ 17
Tex. Prob. Code §233A ......................................................................................... 17
SECONDARY SOURCES
American College of Trust and Estate Counsel,
Commentaries on the Model Rules of Professional Conduct
(4th ed., 2006), 1.13 .......................................................................................... 12
Julie E. Bennett, “You Do Not Represent the Estate,”
Minnesota Lawyer (September 7, 2009) .......................................................... 12
Elias Clark, et al.,
Cases and Materials on Gratuitous Transfers: Wills, Intestate Succession,
Trusts, Gifts, Future Interests and Estate and Gift Taxation
(West Group 1999), p. 845, 897 ......................................................................... 6
4
ISSUES PRESENTED FOR REVIEW
1. The Court did not address the contention of Appellant Wendolyn Messner,
Dependent Administrator (“Wendolyn”) that Appellee Mark L. Boon (“Boon”)
breached his fiduciary duty when he gave false testimony at his deposition in an
attempt to mitigate his failure to marshal the assets of Trust C for the benefit of
the estate of Delbert M. Messner (“Delbert”) and to assist his friend, Jim
Hughey.1
2. Can Wendolyn bring a claim against Boon on behalf of Delbert’s estate for
legal malpractice that occurred after Delbert’s death and during the
administration of the prior personal representative of Delbert’s estate, Juanita
Bengel (“Bengel”)?2
3. The Court did not address the argument of Wendolyn that pursuant to Section
224 of the Texas Probate Code, the rights and powers of the original personal
representative of Delbert’s estate, Bengel, flowed to Wendolyn as successor
personal representative.3
1
C.R. 26-28, 158; Appellant’s Brief, p. 39-40.
2
Wendolyn is not waiving her claim that the basis for the Court’s decision was improper because
this ground for summary judgment was not made in the motions for summary judgment.
3
C.R. 156-57; Appellant’s Brief, p. 37-38.
5
MISSTATEMENTS OF FACTS AND LAW IN THE COURT’S OPINION
There are several misstatements facts and law that need to be corrected in
the Court’s Opinion. To facilitate communication, Wendolyn shall use the
abbreviated terms found in the Opinion (e.g., “University” means “LeTourneau
University,” “Smith” means “Smith v. O’Donnell, 288 S.W.3d 417 (Tex. 2009)”).
On page 3 of its Opinion, the Court states that “Decedent’s Trust B … was
designed to take advantage of the available marital deduction.” Later, on page 4,
the Court states that “the marital deduction in 2000 was $675,000.00.” These two
statements are incorrect. According to the Statement of Facts in Appellant’s Brief,
which Boon conceded as being “substantially correct,”4 Trust B “was to contain
property worth $675,000.00, the exclusion amount for estate tax purposes in
2000.”5 The exclusion amount is the value of the cumulative taxable transfers that
a person may make without incurring a tax on the transfers.6 The exclusion amount
is not the same as the marital deduction. The marital deduction is unlimited now
and was unlimited in 2000.7 In other words, a decedent can transfer as much
property as she wishes to her spouse without incurring any tax liability.8 The Court
4
Boon Appellees’ Brief, p. 3.
5
Appellant’s Brief, p. 12.
6
I.R.C. §§ 2010, 2505; Elias Clark, et al., Cases and Materials on Gratuitous Transfers: Wills,
Intestate Succession, Trusts, Gifts, Future Interests and Estate and Gift Taxation (West Group
1999), p. 845.
7
I.R.C. §2056; Clark, Gratuitous Transfers, p. 897; C.R. 334-35.
8
I.R.C. §2056(a). Read v. United States ex rel. Department of Treasury, 169 F.3d 243, note 8
(5th Cir. 1999); C.R. 217.
6
needs to modify its opinion to show that Trust B was designed to take advantage of
the exclusion amount which was $675,000.00 in 2000.
Wendolyn believes that the Court should clarify the undisputed meaning of
the acronym “GPOA” on page 6 of its Opinion. GPOA means “general power of
appointment.”9
On page 6 of its Opinion, the Court states that Boon testified at some point
in his deposition that in 2005 Bengel wrote a $293,241.77 check to the University,
and this check “was for Trust C assets.” Later, on page 23 of its Opinion, the Court
repeats its belief that “Boon testified that Bengel herself wrote a check to the
University for Trust C assets.” Boon did not testify that the check for $293,241.77
“was for Trust C assets.”10 Moreover, any such testimony would have been
erroneous since the value of the assets assigned to Trust C was $188,586.00 and
not $293,241.77.11 Consequently, the Court should strike any statements in its
Opinion that Boon testified Bengel wrote a check in the amount of $293,241.77 to
the University for Trust C assets.
On page 8 of its Opinion, the Court states: “On May 16, 2011, the
University, Hughey, and successor trustee, Ben March, filed suit against all the
beneficiaries of Delbert’s estate, among others …” This statement is incorrect.
9
Appellant’s Brief, p. 15; C.R. 230.
10
C.R. 229-31, 294, 304-05.
11
C.R. 227, 304, 312; Appellant’s Brief, p. 13.
7
Only the University filed suit in May 2011, as stated in the Statement of Facts in
Appellant’s Brief.12 Jim Hughey, trustee, and Ben March, as successor trustee, later
joined or were joined to the lawsuit.13
Boon has alleged that the beneficiaries of Delbert’s estate filed
counterclaims in the LeTourneau Litigation that are substantially identical to the
claims that Wendolyn has brought in this litigation.14 Boon’s factual allegation has
no evidentiary support, as Wendolyn pointed out in response to the summary
judgment motions and in her brief.15 There is no evidence in the record showing
that all of the beneficiaries brought counterclaims that are substantially identical to
Wendolyn’s claims.16 To underscore this point, Wendolyn showed it was
impossible for all of the beneficiaries to have brought counterclaims in the
LeTourneau Litigation because one of the beneficiaries, Masonic Lodge, did not
even make an appearance in that lawsuit.17 But the Court appears to have
misinterpreted Wendolyn’s observations because on page 8 of its Opinion, the
Court erroneously states: “In response to the … [LeTourneau Lawsuit], the
beneficiaries of Delbert’s estate, except for the Masonic Lodge … countersued,
arguing that Hughey never distributed the assets in Trust A and Trust C to
12
Appellant’s Brief, p. 16-17; C.R. 26, 213-14, 285-86, 296-97.
13
C.R. 94, 120.
14
C.R. 43-44, 131, 133; Boon Appellees’ Brief, p. 28-29.
15
C.R. 152, Appellant’s Brief, p. 17, 33-34.
16
C.R. 152; Appellant’s Brief, p. 17, 33-34.
17
Appellant’s Brief, p. 17; C.R. 38, 85, 94-96, 116-23, 152, 294-95.
8
Delbert’s beneficiaries and that he had instead used all of the assets to fund the
Delbert and Barbara Messner Scholarship Trust …” The evidence in the record
shows that only Michele and Oil Field Girls, Ltd. filed this type of counterclaim in
the LeTourneau Lawsuit.18 There is no evidence in the record showing that
Michael T. Messner, the Masonic Home for Aged Mason, the Masonic Home and
School of Texas, or the Perritte Memorial Methodist Church brought counterclaims
in the LeTourneau Litigation that are substantially the same as the ones that
Wendolyn has brought in this litigation. Moreover, the Court can reasonably infer
that Michael did not bring such counterclaims because he did not join Michele and
Oil Field Girls, Ltd. (which succeeded to only Michael’s mineral interests and not
to any other property he inherited from Delbert’s estate)19 in the pleading in which
his co-defendants asserted these counterclaims even though he was represented by
the same attorney.20Therefore, the Court should correct the statements made on
pages 8 and 10 of its Opinion that Wendolyn’s claim in this litigation are “similar
to the counterclaims filed by the LeTourneau Defendants.”
On pages 8-9 of its Opinion, the Court states: “After the LeTourneau
Defendants filed an expert report concluding that Delbert had the general power of
appointment and that it was validly exercised, all remaining claims arising out of
18
C.R. 85-91, 95-96, 152; Appellant’s Brief, p. 17, 33-34.
19
Appellant’s Brief, p. 17, 33; C.R. 97-98, 295.
20
Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); C.R. 85-91,
297.
9
the LeTourneau lawsuit were settled.” There is nothing in the record showing that
the LeTourneau Defendants filed such an expert report. There is, however, an
expert report of Ronald R. Cresswell.21 But this report was prepared only for
Samson Lonestar, LLC, one of the defendants in the LeTourneau Litigation.22
Finally, there is nothing in the record showing that the report, prepared in October
2012,23 somehow precipitated or was a major factor contributing to the Settlement
of April 2013.24
The Court states on page 10 of its Opinion that Wendolyn “hired the same
attorney that represented the LeTourneau Defendants.” This statement is wrong.
Instead, the record reveals: Paul W. Turner represented only Michael, Michele, and
Oil Field Girls, Ltd.;25 E. McAlister Benchoff was the attorney for the Masonic
Home for Aged Mason and the Masonic Home and School of Texas;26 and Bill
Pedersen, Jr. was the attorney for the Perritte Memorial Methodist Church.27
On page 19 of its Opinion, the Court states Wendolyn argued that “she
stepped into Bengel’s shoes as the successor trustee [emphasis added].” The term
“trustee” is incorrect. Bengel was never a trustee of any trusts established by the
21
C.R. 328-47.
22
C.R. 328.
23
C.R. 330.
24
C.R. 92, 104-115.
25
C.R. 121.
26
C.R. 122.
27
C.R. 123.
10
Trust Agreement.28 Instead, Wendolyn has argued that she stepped into Bengel’s
shoes as the successor “personal representative” of Delbert’s estate.29 More
importantly, for her metaphor, Wendolyn relies more on Section 224 of the Texas
Probate Code as well as Vinson & Elkins v. Moran, 946 S.W.2d 381, 398 (Tex.
App.—Houston [14th Dist.] 1997, writ dism'd) than Belt.
In its discussion of Boon’s limitations defense on page 23 of its Opinion, the
Court states that “Boon testified … that the [2005] accounting was available to the
beneficiaries at Stringer’s office.” Although Boon did give such testimony,30 this
evidence was not presented at the trial court level for Wendolyn to challenge.31
Instead, in their motions for summary judgment, Boon and Stringer did not offer
any evidence to show what “accounting records were available in 2006 to review,”
much less any evidence to show that they were available to the beneficiaries.32
Wendolyn pointed out this lack of evidence in her response to the Boon and
Stringer’s motions for summary judgment.33 Therefore, the Court should strike its
statement that the 2005 accounting was available to the beneficiaries in Stringer’s
office.
28
C.R. 164, 188. Bengel was, however, trustee of some testamentary trusts that were terminated.
C.R. 233.
29
C.R. 156-57; Appellant’s Brief, p. 37-38, note 122 (quoting for support Vinson & Elkins v.
Moran, 946 S.W.2d 381, 398 (Tex. App.—Houston [14th Dist.] 1997, writ dism'd).
30
C.R. 234.
31
C.R. 32-33, 132.
32
C.R. 39.
33
C.R. 148.
11
On page 24 of its Opinion, the Court states: “There is nothing in the record
showing that Boon, who represented Bengel, was also representing the estate …”
This statement seems to be saying that Delbert’s estate could have been Boon’s
client just as Bengel was his client. Under Texas law, an attorney represents the
personal administrator of the estate and not “the estate,”34 although the language in
some court opinions would suggest to the contrary—“the attorney for the estate”35
or “the attorney … who now represents the estate.”36 Consequently, no evidence
could be submitted showing that Boon was providing legal services to the estate as
well as Bengel.
There is a second problem on page 28 of the Opinion. The Court writes:
“Boon … argues that the estate was not included as a party to the LeTourneau
[L]awsuit because ‘[i]t has long been settled that the ‘estate’ of a decedent is not a
legal entity and may not sue or be sued as such.’” Boon has never made this
argument. Nor has Wendolyn or Stringer. Instead, in her response to the motions
for summary judgment, Wendolyn cited the rule that an estate cannot sue or be
sued in response to Boon and Stringer’s motions for summary judgment in which
34
American College of Trust and Estate Counsel, Commentaries on the Model Rules of
Professional Conduct (4th ed., 2006), 1.13; Huie v. DeShazo, 922 S.W.2d 920, 925 (Tex. 1996);
NationsBank of Tex., N.A. v. Akin, Gump, Hauer & Feld, L.L.P., 979 S.W.2d 385, 391 (Tex.
App.—Corpus Christi 1998, pet. denied); Julie E. Bennett, “You Do Not Represent the Estate,”
Minnesota Lawyer (September 7, 2009).
35
Overton v. Bengel, 139 S.W.3d 754, 759 (Tex. App.—Texarkana 2004, no pet.).
36
Brightwell v. Barlow, Gardner, Tucker & Garsek, 619 S.W.2d 249, 251 (Tex. Civ. App.—Fort
Worth 1981, no writ).
12
they had argued that “the Estate,” (i.e., Delbert’s estate) should have learned of its
claims against them by 2006.37 Consequently, the Court should remove this portion
of its Opinion in which it purports to recount an argument made by Boon.
37
C.R. 38-40, 43-44, 147, 152.
13
ARGUMENT
1. Boon breached his fiduciary duty by giving false testimony.
On pages 11 and 12 of its Opinion, the Court points out that Wendolyn has
alleged two grounds for finding that Boon had breached his fiduciary duty. First, a
jury could find that he gave false testimony at his deposition when he stated that he
had always been concerned about the validity of Delbert’s power of appointment,
though he never expressed this concern to anyone and, understandably due to the
plain language of the Trust Agreement, had difficulty giving a good reason for this
concern.38 Alternatively, a jury could find that Boon breached his fiduciary duty by
not disclosing this concern to Delbert or Bengel.39 The Court addressed the
alternative grounds for Boon’s alleged breach of fiduciary duty, Boon’s failure to
disclose his concerns, and found that this theory of liability does not “allege the
type of dishonesty or intentional deception that will support a breach-of-fiduciary-
duty claim.”40 But the Court did not address the other grounds alleged by
Wendolyn for finding that Boon had breached his fiduciary duty, namely, Boon’s
false testimony at his deposition.
The allegation that Boon lied at his deposition involves the type of
dishonesty or intentional deception that will support a claim for breach of fiduciary
38
C.R. 26-27, 54-55, 157-58; 246, 277, 342; Appellant’s Brief, p. 18, 20, 39.
39
C.R. 26-27, 54-55, 157-58, 277; Appellant’s Brief, p. 20, 39.
40
Opinion, p. 14-18 (citing Isaacs v. Schleier, 356 S.W.3d 548, 559 (Tex. App.—Texarkana
2011, pet. denied).
14
duty.41 Moreover, by giving testimony designed to create the impression that
Delbert might not have had a power of appointment over Trust C, Boon also
engaged in self-dealing at the expense of Delbert, his former client.42 In other
words, he simultaneously tried to minimize his fault in not obtaining the assets of
Trust C for Delbert’s estate43 and frustrated the explicit instruction of Delbert that
he wanted as little trust property to go to the University and as much to go to the
beneficiaries of his estate.44 Finally, this false testimony supported the claim of his
personal friend, Jim Hughey, that the University, Hughey’s employer, was the
ultimate beneficiary of the assets in Trust C.45 In short, Wendolyn has alleged that
Boon lied in order to put his own interest ahead of that of his former client,
Delbert. The Court’s Opinion fails to address Wendolyn’s initial allegation
supporting a claim for breach of fiduciary duty.
2. Wendolyn can bring claims against Boon on behalf of Delbert’s estate for
legal malpractice that occurred after Delbert’s death and during Bengel’s
administration.
On page 20 of its Opinion, the Court states that “claims alleging that Boon
failed to properly advise Bengel in her role as administrator of Delbert’s estate are
not based on injury to Delbert … instead, the injury, if any, was to Bengel.” Then,
41
Opinion, p. 17; Isaacs v. Schleier, 356 S.W.3d 548, 559 (Tex. App.—Texarkana 2011, pet.
denied).
42
Isaacs v. Schleier, 356 S.W.3d 548, 559 (Tex. App.—Texarkana 2011, pet. denied).
43
C.R. 27, 55, 158, 251, 276; Appellant’s Brief, p. 39.
44
C.R. 25, 53, 202-03, 217; Appellant’s Brief, p. 13.
45
C.R. 157-58; Appellant’s Brief, p. 15, 20.
15
in note 6, also on page 20 of the Opinion, the Court mentions “the trial court’s
grant of summary judgment on claims asserted against Bengel.” There is no
evidence in the record showing an injury or damages to Bengel or that any claims
were ever asserted against Bengel,46 whom the Court observed could not even be
sued for negligence due to the exculpatory clause in Delbert’s will that Boon
drafted.47 Instead, there is much evidence showing that while Boon was
representing Bengel as the administrator of Delbert’s estate, he was negligent in his
admitted duty of assisting Bengel in marshaling some of the assets of Delbert’s
estate, specifically Trusts A and C, thereby causing injury or damages to Delbert’s
estate.48 Finally, although Boon raised a straightforward privity defense (i.e.,
Wendolyn could not sue Boon because he was never her attorney), the Court’s
novel basis for affirming the trial court’s summary judgment (i.e., Wendolyn
cannot sue Boon because any negligence on his part was an injury only to Bengel)
is improper because it was not raised at the trial level or even in Boon’s brief.49
The language found on page 20 of the Opinion appears to be due to the
Court’s misreading of Smith. According to the Court, although Bengel and
Wendolyn can sue Boon on behalf of Delbert’s estate for a negligent act that
occurred during Delbert’s life, only Bengel (or the personal representative of
46
C.R. 22-29, 50-57.
47
Opinion, p. 27; C.R. 142-43.
48
C.R. 251, 275-77, 337-42.
49
C.R. 133-35; Appellee Boon’s Brief, p. 5-8; Hall v. Huff, 957 S.W.2d 90, 95, note 11 (Tex.
App.—Texarkana 1997, pet. denied).
16
Bengel’s estate) can sue Boon for a negligent act that occurred after his death and
during her administration provided Bengel (or her estate) suffers damages.50
Although the second fact pattern is what happened in Smith,51 the Texas Supreme
Court does not state or even imply in its opinion that this inefficient, domino-like
process is procedurally necessary in order for a personal representative or his
successor to bring a claim on behalf of the estate that is directly injured or
damaged by a negligent act. In fact, under the Court’s analysis on page 20 of its
Opinion, anyone who caused damages to Delbert’s estate during Bengel’s
administration (at least anyone with whom Bengel contracted including Stringer)
could not be sued by a successor personal representative of Delbert’s estate. But
Sections 224, 233, 233A of the Texas Probate Code give personal representatives
and their successors the authority “to collect all claims and debts due the estate”
regardless of whether the wrongful conduct giving rise to the claim occurred
during the decedent’s life or after death … and without waiting for a beneficiary to
sue or settle with them.52 In distinguishing claims that a personal representative
may bring for damages or harm to the estate based on when the negligent act
occurred (before or after the decedent’s death), the Court ignores the near identical
interests of the decedent and his estate: “An estate’s interests … mirror those of the
50
Opinion p. 20, note 6.
51
Smith v. O’Donnell, 288 S.W.3d 417, 420-21 (Tex. 2009).
52
Tex. Prob. Code §§233, 233A (now Tex. Estates Code §§351.054, 351.151).
17
decedent”53 and “a decedent's interests should mirror those of his estate.”54 In
summary, the statements on page 20 of the Opinion reflect an improper and novel
view of Texas law, which explains why neither Boon nor Stringer raised it in the
trial court.55
3. Section 224 of the Texas Probate Code gives Wendolyn the right to pursue
claims for legal malpractice against Boon that Bengel herself could have
brought.
On page 18-21 of its Opinion, the Court discusses Boon’s argument that
Wendolyn’s lack of privity bars her claims for negligence against him. To defeat
Boon’s argument, the Court states that Wendolyn “cites to Smith v. O’Donnell, 288
S.W.3d 417, 419 (Tex. 2009).” But Wendolyn never cited to or discussed Smith,
and neither did Boon.56 More importantly, the Court never considered her principal
argument for overcoming Boon’s privity defense: Section 224 of the Texas Probate
Code.57 According to that statute, a successor personal representative, like
Wendolyn, has “all rights, powers, and duties of his predecessor,” unless otherwise
specified in the decedent’s last will and testament.58 Moreover, in her brief,
Wendolyn cited to a Texas case in which the Fourteenth Court of Appeals
interpreted the statute to mean that a successor personal representative could sue a
53
Smith v. O’Donnell, 288 S.W.3d 417, 421 (Tex. 2009).
54
Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780, 787 (Tex. 2006).
55
C.R. 30-48, 133-35.
56
C.R. 133-35, 155-57; Appellant’s Brief, p. 6; Appellee’s Brief, p. v.
57
C.R. 155-57; Appellant’s Brief, p. 36-38, notes 122-24.
58
Tex. Prob. Code §224 (now Tex. Estates Code §361.153); C.R. 156; Appellant’s Brief, p. 37,
Appendix Page 80.
18
law firm for legal malpractice that had occurred during a predecessor’s
administration of an estate.59 Wendolyn also noted that the California Supreme
Court relied on a statute similar to Section 224 of the Texas Probate Code to
overcome a law firm’s defense of lack of privity.60 Very recently, in May 2014, a
Florida appellate court also held that a statute similar to Section 224 of the Texas
Probate Code overcame an attorney’s defense of lack of privity to a malpractice
claim brought by a successor personal representative.61 Finally, as the Texas
Supreme Court noted in Belt, the rationale for the privity barrier “does not apply
when an estate's personal representative seeks to recover damages incurred by the
estate itself.”62 In this case, Wendolyn seeks to recover damages incurred by
Delbert’s estate itself due to Boon’s negligence;63 and she does so without relying
on extrinsic evidence but on the documents prepared by Boon himself and his own
admissions at his deposition.64 In summary, the Court should address Wendolyn’s
counter-argument based on Section 224 of the Probate Code and reconsider its
59
Appellant’s Brief, notes 122, 128; Vinson & Elkins v. Moran, 946 S.W.2d 381, 387, 398 (Tex.
App.—Houston [14th Dist.] 1997, writ dism'd) (noting that although not assignable, legal
malpractice claims passed from the executors, who had hired Vinson & Elkins to assist them in
administering an estate, to a successor representative because the successor “stepped into the
shoes” of his predecessors pursuant to Section 224 of the Texas Probate Code).
60
C.R. 156; Appellant’s Brief, notes 126-27; Borissoff v. Taylor & Faust, 15 Cal. Rptr. 3d 735-37
(Cal. 2004) (citing Section 8524(c) of the California Probate Code).
61
Bookman v. Davidson, 136 So. 3d 1276, 1278-80 (Fla. 1st DCA 2014) (citing Section 733.614
of the Florida Statutes).
62
Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780, 787 (Tex. 2006).
63
C.R. 53-56.
64
C.R. 141-43, 202-22, 217, 342; Appellant’s Brief 13-14.
19
holding that Wendolyn cannot bring claims against Boon for legal malpractice
occurring during Bengel’s administration.
20
PRAYER
For the reasons states in this motion, Wendolyn asks the Court to grant this
motion for rehearing, withdraw its opinion, correct its misstatements of law and
facts, address her argument concerning Boon’s breach of fiduciary duty for giving
false testimony at his deposition, and address her argument that Section 224 of the
Texas Probate Code overcomes Boon’s defense of privity whose rationale does not
apply in this case.
Respectfully submitted,
/s/ Paul W. Turner____________
Paul W. Turner
Texas Bar No. 24037619
400 S. Alamo, Suite A
Marshall, Texas 75670
903-935-0135 (phone)
903-935-0235 (facsimile)
pturner@thelawofficeofpwt.com
Counsel for Appellant
21
CERTIFICATE OF COMPLIANCE
This motion for rehearing complies with Texas Rule of Appellate Procedure
9.4(i) because it contains 4,457 words (excluding the parts of the motion exempted
by this rule).
Signed on January 5, 2015.
/s/ Paul W. Turner____________
Paul W. Turner
CERTIFICATE OF SERVICE
I certify that on January 5, 2015, I served a copy of Appellant’s Motion for
Rehearing on counsel for Appellees listed below by electronic service and the
electronic transmission was reported as complete. My email address is
pturner@thelawofficeofpwt.com.
Michael L. Dunn
Smead, Anderson & Dunn
2110 Horseshoe Lane
Longview, Texas 75605
Counsel for Appellees Mark L. Boon and
Boon Shaver Echols Coleman & Goolsby, P.L.L.C.
/s/ Paul W. Turner____________
Paul W. Turner
22
APPENDIX TABLE OF CONTENTS
I.R.C. §2010 ............................................................................................................. 1
I.R.C. §2056 ............................................................................................................. 2
I.R.C. §2505 ........................................................................................................... 10
Tex. Estates Code §351.054 .................................................................................. 11
Tex. Estates Code §351.151 .................................................................................. 12
Tex. Estates Code §361.153 .................................................................................. 13
Tex. Prob. Code §224 ............................................................................................ 15
Tex. Prob. Code §233 ............................................................................................ 16
Tex. Prob. Code §233A ......................................................................................... 16
American College of Trust and Estate Counsel,
Commentaries on the Model Rules of Professional Conduct
(4th ed., 2006), 1.13 .......................................................................................... 18
Julie E. Bennett, “You Do Not Represent the Estate,”
Minnesota Lawyer (September 7, 2009) .......................................................... 22
Elias Clark, et al.,
Cases and Materials on Gratuitous Transfers: Wills, Intestate Succession,
Trusts, Gifts, Future Interests and Estate and Gift Taxation
(West Group 1999), p. 845, 897 ....................................................................... 24
23