in the Estate of Friley S. Davidson ( 2015 )

ACCEPTED
05-15-00432-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
5/5/2015 8:57:00 AM
LISA MATZ
CLERK
NO. 05-15-000432-CV
IN THE COURT OF APPEALS FILED IN
FOR THE FIFTH DISTRICT 5th COURT OF APPEALS
AT DALLAS, TEXAS DALLAS, TEXAS
5/5/2015 8:57:00 AM
LISA MATZ
J. STACY DAVIDSON, Clerk
Appellant
V.
JUDYE GREMM,
Appellee
On Appeal from the Probate Court
Dallas County, Texas
Cause No. PR-09-3999-1
(Honorable Judge Peyton)
APPELLANT'S RESPONSE TO APPELLEE'S MOTION TO DISMISS PORTION OF
APPEAL
TO THE HONORABLE JUSTICES OF THE FIFTH CIRCUIT COURT OF APPEALS:
Appellant asks this Court todeny the Appellant's Motion to Dismiss Portion ofAppeal
and allow the Appellant's Appeal to proceed before this Honorable Court as plead.
A. Introduction
1. Appellant is JOHN STACY DAVIDSON, former Independent Co-Executor ofthe Estate
ofFriley S. Davidson. Appellee isJudye Gremm, former beneficiary ofthe Estate ofFriley
S. Davidson, and now Administratorwith Will Annexed of said Estate.
2. This appeal is taken from two Orders entered in the above referenced Probate Court for
Dallas County:
a. The Order Granting Motion for Partial Summary Judgment and Removing
Independent Co-Executors, dated February 22,2013, and
b. The Order Granting Motion for Judgment on Verdict and Motion for Judgment Non
Obstante Veredicto, dated January 30,2015.
B. Facts and Procedural History
3. Friley Davidson died on December 10,2009, leaving a valid written Will dated December
11,2008.
4. The Application for Probate was filed immediately, December 14,2009, and the Will was
probated on December 30,2009.
5. As both Co-Executors are, and remain, residents of Mississippi, the Court approved
attorney David Bell as their registered agent in Texas.
6. On or about January 18, 2010, the Co-Executors, through counsel, sent their Rule 128A
letter to the beneficiaries advising them that the Will had been entered into probate, that
they were named beneficiaries, provided the names and addresses of the personal
representatives, and provided them a copy ofthe Will and the Order Admitting the Will to
Probate.
7. The Co-executors filed their rule 128A Affidavit on March 30, 2010 and their Inventory
on May 20, 2010. The Inventory was approved on May 21, 2010, by the Honorable John
B. Peyton.
8. Judye Gremm, a named beneficiary, filed a Petition to Remove Co-Executors on May 25,
2011.
9. Discovery proceeded in this matter imder Tex. R. Civ. P. Rule 190.3. The discovery,
however, that took place was narrow in scope, including Requests for Disclosure, oral
depositions of the Co-Executors only, and interrogatories propounded to the Plaintiff.
Neither the other beneficiaries, nor the Plaintiff, were deposed.
10. Eventually, Judy Gremm filed her Plaintiffs Motion for Partial Summary Judgment on
January 23, 2013, seeking removal of the Co-Executors for seven alleged breaches of the
Texas Probate Code.
11. The alleged breaches were "evidenced" by the following attachments to that Motion, which
constitutes the whole of the Plaintiffs evidence in support of Partial Summary Judgment:
a. The Order Admitting Will to Probate and Authorized Letters Testamentary; Oaths
ofthe Independent Co-Executors; the Inventory, Appraisement, and List of Claims;
the Order Approving Inventory, Appraisement, and List of Claims; and the
Affidavit of Compliance with Section 128A Texas Probate Code;
b. The Last Will and Testament of Friley S. Davidson as admitted to Probate;
c. The Affidavit of Keith Staubus; a demand letter for full disclosure; a copy of the
Decedent's Comerica bank account statement; a demand letter for documentation
reconciling the discrepancy between the Inventory and the bank account;
d. Portions of the depositions of each Co-Executor;
e. The Affidavit of L. Henry Alterman; his demand letter for an Accounting; a copies
ofthe Appointment of Registered Agent, the Co-Executor's Application to Probate
Will and for Letters Testamentary, and the Court's docket sheet showing that no
proofs of publication or service had been filed with the Court.
12. On February 13, 2013, Defendant's filed their Response to Plaintiffs Motion for Partial
Summary Judgment, contesting each of the alleged violations of the Texas Probate Code
and including proper evidence in support thereof.
13. On February 22, 2013, the Honorable Brenda Hull Thompson, presiding over this matter
at the time, entered the Order Granting Motion for Partial Summary Judgment and
Removing Independent Co-Executors in the above captioned matter. (See EXHIBIT A).
14. This matter proceeded to trial on the issue of damages. A trial by jury was held on
December 8, 2014 through December 10, 2014. Following the trial, on January 30,2015,
the court granted the Plaintiffs Motion for Judgment on Verdict and Motion for Judgment
Non Obstante Veredicto.
15. The Defendant therein. Appellant herein, filed his Motion for New Trial on February 25,
2015, which was denied by the court on March 6, 2015. Appellant's Notice of Appeal
followed on March 30,2015.
16. Appellee filed the current Motion to Dismiss Portion of Appeal on April 16,2015.
C. Standard of Review
17. The Appellant asserts that an appellate court reviews questions ofjurisdiction under Texas
Rules of Appellate Procedure, Rule 42.3, de novo. Saleh v. Hollinger, 335 S.W.3d 368,
370 (Tex. App. - Dallas 201 l)(citing Mayhew v. Town ofSunnyvale, 964 S.W.2d 922,928
(Tex. 1998).
D. Argument and Authoritv
18. Respondent relies on Eddins v. Borders, 71 S.W.3d 368,371 (Tex. App. - Tyler 2001, pet.
denied) for the proposition that the Petitioner's Notice of Appeal, as to the Order Granting
Partial Summary Judgment, is untimely, as said Notice was filed more than 30-days after
the Order was entered. That case, however, is distinguishable from the present because
Eddins involved the appeal of a summary judgment order, after which a severance was
granted.
19. A full treatment of the "severance trap" is found in Lehmann v. Har-Con Corporation, 39
S.W.3d 191 (Tex. 2001). The Court there found that partial summary judgments are not
entitled to receive the "presumed disposition" treatment that conventional trials on the
merits of a case receive. Id. This case also stands for the proposition that a partial summary
judgmentordermay become a "finaljudgment" if severance occurred after the entrance of
the order, wherein a separate cause of action was initiatedas to the remaining claims.
20. Here, there was no severance. The order itself declares its own interlocutory nature. The
caselaw strongly supports a finding of interlocutory status. Further, the Ordergranting the
Partial Summary Judgment explicitly says that "JUDYE GREMM'S remaining claims
against the Defendants are still pending in this proceeding." The Order itselfdeclares its
natureas an interlocutory judgment, and not as a finaljudgment on the merits.
21. Next, the Respondent relies on In re Estate of Washington for the assertion that an order
removing a personal representative of an estate and appointing a successor is a final
appealable order. 262 S.W.3d 903, 905 (Tex. App. - Texarkana 2008). Thatcase is also
distinguishable because there, the order removing the administrator was entered after a
hearing on the matter. The court there noted specifically, "[i]t appears that [the order of
removal] was not rendered based merely on the summary judgment pleadings, but aftera
hearing. A hearing was conducted concerning the administrator..." Id. at 906.
22. The Respondent further relies on Pine v. Deblieux, wherein the court implied thatan order
removing an executor, after a hearing onthematter, is a final appealable order. 360S.W.3d
45,46 (Tex. App. - Houston 2011). Thatcourt doesn't directly state that suchorders, even
aftera hearing on the matter, are finally appealable, but cites In re Estate of Vigen for the
proposition that "[a]n order settling someone's rights as an Executor is generally a final.
appealable Order." (Appellee's Motion to Dismiss at 3, para. 9)(citing In re Estate ofVigen,
970 S.W.2d 597, 599 (Tex. App. - Corpus Christi 1998). The court in Vigen, however,
considered the removal ofa representative due to a conflict of interest at the very beginning
of the probate proceeding, thus preventing the Appellant from appointment as
administrator. Vigen, 970 S.W.2d 597 at 598.
23. The Vigen court further supported its finding of finality by finding that "[t]here are no
ongoing proceedings relevant to this issue, and no 'pleadings also part of that proceeding'
concerning 'issues or parties not disposed of.'" Id. at 598 (citing Spies v. Milner, 928
S.W.2d 317, 318-319 (Tex. App. - Fort Worth 1996)).
24. The Petitioner asserts that these authorities are irrelevant to the case at bar. The Petitioner
contends that, as a general principle, partial summary judgments orders are not entitled to
receive the "presumed disposition" treatment that conventionaltrials on the merits ofa case
receive. Lehmann, 39 S.W.3d 191 at 191. More specifically, a partial summary judgment
granted by a probate court is expressly an interlocutory imder section 5(g) of the Probate
Code and thus appeal is only proper once all of the issues have been decided in a Final
Order. In re Estate ofWillett^ 211 S.W. 3d 364,365 (Tex. App. - San Antonio 2006).
25. Further, the Petitioner contends that the "One Final Judgment Rule," as found in Okumu v.
Wells Fargo Bank, N.A., is applicable in this case. 2010 WL 87735 (citing De Ayala v.
Mackie, 193 S.W.3d 575, 578 (Tex. 2006)). The One Final Judgment Rule is made
applicable in the probate context as, "[t]he probate court conducts its business in a
continuing series of events. The nature of "administration" contemplates decisions to be
made on which other decisions will be based. There must be a practical way to review
erroneous, controlling, intermediate decisions before the consequences of the error do
irreparable injury." Vineyard v. /rvm, 855 S.W.2d 208, 210 (Tex. App. - Corpus Christi
1993)(citing Christensen v. Harkins, 740 S.W.2d 69, 74 (Tex. App. - Fort Worth 1987)).
26. The Petitioner argues, however, that the language ofthese cases limits the operationofthe
probate exception to the "One Final Judgment Rule" to only those orders or judgments
rendered as partof the ongoing administration ofthe estate.Looking to factsof thosecases,
they all involve specific transactions, such as the sale of certain estateproperty, that were
controverted in the probate court. The court in Vineyard refersto the compound nature of
the decisions made during estate administration, how one transaction entered into by the
representative effects future transactions. The need for finality is thus necessaryto prevent
one bad transaction from leading to others and ultimately causing harm to the estate as an
ongoing concern. The Okumu case illustrates this concept by its holding, "[t]he action of
the court in confirming or disapproving a report of saleshall have the force andeffect of a
final judgment; and anyperson interested in theestate... shall have the rightto have such
decrees reviewed as in other final judgments in probate proceedings.
27. Therefore, the probateexception does not apply to Petitions for Removal of Executors, as
such actions arenot partof the normal, day-to-day decisions involved in the administration
of estate affairs. Removal of representatives is of a different character entirely thanthatof
the routine disposition of estate assets and affairs. The case law indicates the availability
of appeal of court orders during the pendency of a probate proceeding in order to prevent
the compounding of harmful transactions undertaken inthe course ofestate administration,
not for the removal of the administrators themselves.
28. Such was the case in the current matter. The various orders of the Probate Court entered
prior to the Petition to Remove the Co-Executors, filed by the Appellee herein, were
properly appealable within 30 days of entrance. Instead, the Petition to Remove was filed.
29. Also, the action to remove the Independent Co-Executors was accompanied by a second
motion for Partial Summary Judgment requesting damages related to the administration of
the estate under the former Executors, including attorney's fees up to and including the
removal of the Executors. This Motion resulted in the subsequent trial, beginning on
December 08,2014. The Appellant avers that this is indicative ofthe ongoing nature ofthe
underlying Partial Summary Judgment removing the Co-Executors.
30. As such, the caselaw and facts at hand warrant the appeallability of the Order Granting
Partial Summary Judgment and Removing the Independent Co-Executors of February 22,
2013.
WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court to Deny the
Appellee's Motionto Dismiss Portion of Appeal and allowthe Appeal to go forward.
RESPECTFULLY SUBMITTED, this the 4th day of May, 2015.
/s/ James 0. McGee. Jr.
James G. McGee, Jr.
State Bar of Texas Number 24051025
Email: jmcgee@mcgeetaxlaw.com
Law Office of James G. McGee, Jr. PLLC
6440 N. Central Expressway
Suite 203
Dallas, Texas 75206
Phone: (214) 706-9929
Fax: (214) 706-9956
ATTORNEY FOR APPELLANT
JOHN STACY DAVIDSON
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the forgoing was served upon P. Keith
Staubus,attorney for Appellee via electronic service at pks@srllD.com on May 4,2015.
/s/ James G. McGee. Jr.
James G. McGee, Jr.
State Bar of Texas Number 24051025
Email:jmcgee@mcgeetaxlaw.com
Law Office of James G. McGee, Jr. PLLC
6440 N. Central Expressway
Suite 203
Dallas, Texas 75206
Phone: (214) 706-9929
Fax: (214) 706-9956
EXHIBIT A
CWSE NO. PR-09-3999-1
IN THE ESTATE § THE PROBATE COURT
§
FRILEY S.DAVIDSON, § OF
§
DECEASED § DALLAS COUNTY, TEXAS
ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
ANn REMOVING INDEPENDENT CQ-EXECUTORS
On the 21®' day of February, 2013, came on to be considered the Plaintiffs Motion for Partial
Summary Judgment. After considering the Motion, the Defendants' Response, and the timely
filed summary judgment proof, the Court makes the following findings.
1. The Independent Co-Executors failed to return within ninety (90) days after qualification
A n J . 1 1j
aitovStory ofthe property ofthe Estate and List ofClaims that came into their knowledge or an
Affidavit In Lieu ofthe Inventory, Appraisement and List ofClaims;
2. Sufficient grounds appear to support the belief that the Independent C