in Re John Wilson ( 2012 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed February
16, 2012.
In The
Fourteenth Court of Appeals
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NO. 14-12-00092-CV
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IN RE JOHN WILSON, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
County Court at Law No. 3
Fort Bend County, Texas
Trial Court Cause No. 04-CPR-018318
MEMORANDUM OPINION
On January 31, 2011, relator John Wilson filed a petition for writ of mandamus in
this court. See Tex. Gov’t Code § 22.221; see also Tex. R. App. P. 52. Relator
complains that respondent, the Honorable Susan G. Lowery, presiding judge of County
Court at Law No. 3 of Fort Bend County, is acting beyond the court’s plenary power over a
judgment signed April 26, 2005 in the underlying probate case. Relator asks that we order
the trial court to refrain from modifying or vacating the 2005 judgment in the underlying
case, enforce the judgment, and dismiss an application to declare heirship filed by another
purported heir.
The underlying case concerns the estate of Odean Jones, who has been missing
since 2000, and was presumed to be dead. Odean’s wife, Renita, died in 2002. Odean
and Renita had no children. Relator is an administrator of Renita’s estate, and he applied
to probate Odean’s 1996 will on March 25, 2004. Three of Odean’s siblings or
half-siblings intervened in the case. Shortly before trial, the parties reached an agreement,
and the trial court signed an agreed judgment on April 26, 2005.
The 2005 judgment reflects the parties’ agreement that the date of Odean’s death
would be deemed to be January 5, 2010, unless Odean entered an appearance in the action
before December 4, 2009. The will would then be admitted to probate on January 5, 2010,
and the previously appointed receiver, in lieu of an executor under the will, would make
distributions of the estate. The first distribution was January 5, 2010, and distributions
were to continue monthly until July 22, 2011. The receiver, guardian ad litem, and
attorney ad litem were to submit fee requests, and after the amounts to be paid were
determined, the receiver was to make a final distribution. The 2005 judgment expressly
states:
This Court shall retain jurisdiction over this case to resolve any issues that might
arise and to determine the award of any fees or expenses to the Receiver,
Kornblit [the guardian ad litem] and/or Tate [the attorney ad litem]. This Court
shall retain jurisdiction until the Court enters a final order that discharges the
Receiver, Kornblit, and Tate and closes this case.
A later supplemental order required the receiver to file a final inventory by September 15,
2011. The supplement again stated, ―This Court retains jurisdiction — as the Judgment
provides — to resolve any issues that may arise before the closing of this case.‖ Odean
never made an appearance in the case or in any way demonstrated that he was not deceased.
The final distribution of the estate has not been made. No final order discharging the
receiver or otherwise closing the estate has been signed.
In March of 2010, another of Odean’s half-siblings who was not a party to the
agreed judgment filed an application to declare heirship of Odean’s estate, alleging that
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Odean died intestate because his will had left his entire estate to his wife, with no residual
beneficiary, and his wife predeceased him in 2002. Relator filed a motion to require the
receiver to make the final distribution and to dismiss the heirship proceeding. The trial
court signed a written order denying relator’s motion on January 27, 2012, and this
proceeding followed.
Relator argues that he is entitled to mandamus relief because the trial court is acting
to modify the final judgment entered April 26, 2005, without plenary power. A trial court
has plenary power for thirty days after the judgment is signed unless a timely
post-judgment motion is filed. See Tex. R. Civ. P. 329b. No such motion was filed in
this case. A trial court’s order signed after the expiration of plenary power is void. See
State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995).
Mandamus is an extraordinary remedy that will issue only if (1) the trial court
clearly abused its discretion and (2) the party requesting mandamus relief has no adequate
remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004).
A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to
amount to a clear and prejudicial error of law, or if it clearly fails to analyze or apply the
law correctly. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005).
When reviewing the trial court’s decision for an abuse of discretion, we may not substitute
our judgment for that of the trial court with respect to the resolution of factual issues or
matters committed to the trial court’s discretion. See Walker v. Packer, 827 S.W.2d 833,
839-40 (Tex. 1992).
Mandamus relief is proper when a trial court issues an order after the expiration of
its plenary power. In re Brookshire Grocery Co., 250 S.W.3d 66, 68 (Tex. 2008). A
relator who demonstrates that the order or judgment challenged is void need not
demonstrate that remedy by appeal is inadequate. In re Southwestern Bell Tel. Co., 35
S.W.3d 602, 605 (Tex. 2000).
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To be considered a final order in a probate case, in addition to adjudicating a
―substantial right,‖ an order must ―dispose of all issues in the phase of the proceeding for
which it was brought.‖ Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995). The
judgment in this case expressly recites that the trial court retains plenary jurisdiction to
consider and resolve other ―issues.‖ Thus, the 2005 judgment did not dispose of all issues
in the proceeding, but merely ―set the stage for the resolution‖ of the proceeding; therefore,
the order is interlocutory. See DeAyala v. Mackie, 193 S.W.3d 575, 579 (Tex. 2006). An
order that specifies additional actions to be accomplished before closing an estate is not a
final order. See Boseman v. Kornblit, 232 S.W.3d 261, 264 (Tex. App.—Houston [1st
Dist.] 2007, no pet.) (citing section 405 of the Probate Code, which specifies the steps to be
taken in the final settlement of an estate). The trial court retains continuing control over
interlocutory orders and has the power to modify or set those orders aside. Fruehauf
Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993).
We conclude that the trial court retains plenary jurisdiction over the April 26, 2005,
judgment in this case. Accordingly, we deny relator’s petition for writ of mandamus.
PER CURIAM
Panel consists of Chief Justice Hedges and Justices Jamison and McCally.
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