in the Estate of Ruby Renee Byrom ( 2011 )


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  •                                   NO. 12-09-00279-CV
    IN THE COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT
    TYLER, TEXAS
    IN THE ESTATE OF                               §            APPEAL FROM THE
    RUBY RENEE BYROM,                              §            COUNTY COURT OF
    DECEASED                                       §            CHEROKEE COUNTY, TEXAS
    MEMORANDUM OPINION
    Jerry Byrom appeals the county court’s orders holding him in contempt and committing
    him to county jail, awarding attorney’s fees, and imposing a constructive trust. On appeal,
    Byrom presents three issues. We dismiss in part, vacate in part, and affirm in part.
    BACKGROUND
    Ruby Renee Byrom died on February 5, 2005, and her son, Byrom, was named in her will
    as the sole beneficiary and independent executor of her estate. The will was admitted to probate
    in the County Court at Law of Cherokee County (the probate court), and Byrom was appointed
    the independent executor of Ruby’s will and estate without bond. A few months after Byrom
    was appointed, Roy Anderson and Duane L. Coker filed claims in the probate court against
    Ruby’s estate. Anderson, who had been appointed by a Denton County court as Ruby’s
    temporary guardian, filed a claim based on two orders from that court for payment of attorney’s
    and temporary guardian’s fees. Coker, who had been appointed as the attorney ad litem for Ruby
    in the guardianship proceeding, filed a claim based on an order from the Denton County court for
    payment of attorney’s fees.     Byrom, as the independent executor of Ruby’s estate, denied
    Anderson’s and Coker’s claims.
    Anderson filed a motion to remove Byrom as independent executor, or in the alternative,
    to have Byrom show cause why he should not be required to post a bond. Anderson also moved
    to compel an accounting and requested attorney’s fees. Byrom filed an inventory, appraisement,
    and list of claims, and Anderson objected to it. Thereafter, the probate court removed Byrom as
    independent executor for cause, but did not discharge him. Further, the probate court ordered
    Byrom to file an accounting and deposit $85,000.001 into the registry of the court within thirty
    days. The probate court also awarded Anderson attorney’s fees against Ruby’s estate in the
    amount of $14,034.10 for prosecuting the removal of the independent executor.
    Then, Anderson filed a motion to enforce the removal order by contempt and requested
    attorney’s fees. On June 16, 2009, the probate court ordered that Byrom be held in contempt for
    failing to deposit $85,000.00 into the registry of the court, and ordered that Byrom be committed
    to the county jail until he purged himself of the contempt and complied with the probate court’s
    orders. The probate court also awarded Anderson attorney’s fees against Ruby’s estate in the
    amount of $7,058.17 for the contempt action.
    Anderson filed a motion for a constructive trust to be imposed on Byrom’s real property
    in Mount Enterprise, Texas, and requested attorney’s fees. Coker, as intervenor, filed a notice of
    joinder in the motion to impose a constructive trust and an application for a turnover order. On
    August 10, 2009, the probate court granted the motion for a constructive trust, finding that
    Byrom had breached his fiduciary duty to Ruby’s estate.2 The probate court ordered that a
    constructive trust in the amount of $200,000.00 be imposed on Byrom’s real property, and that if
    that amount was not paid into the registry of the court within thirty days, the probate court would
    order that the property be sold.         Further, the probate court awarded Anderson and Coker
    attorney’s fees against Ruby’s estate totaling $6,412.94 incurred in obtaining the constructive
    trust. The probate court also ordered that a writ of attachment be issued for Byrom for failing to
    appear at the August 10 hearing even though he was ordered to do so. Finally, the probate court
    ordered that Byrom be brought before the court to fulfill the terms of the order holding him in
    contempt.
    Byrom filed an application for a writ of habeas corpus seeking bond and the probate court
    set his bond at $80,000.00. Byrom’s attorney filed the bond and Byrom was released. After a
    1
    In the order removing Byrom as independent executor, Byrom was ordered to deposit $622,786.22 into
    the registry of the court. On December 9, 2008, the probate court issued a reformed order directing Byrom to
    deposit $85,000.00 into the registry of the court.
    2
    On November 16, 2009, the probate court entered a nunc pro tunc order to correct the real property
    description attached to the original judgment imposing the constructive trust.
    2
    hearing, the probate court denied Byrom’s application for writ of habeas corpus, ordered Byrom
    taken into custody, and set his bond at $95,000.00. Byrom filed another habeas application,
    which was denied. This appeal followed.
    ORDER OF CONTEMPT
    In his first issue, Byrom argues that the probate court erred by finding him in contempt
    and committing him to the county jail for violation of its removal order requiring him to deposit
    $85,000.00 into the registry of the court. More specifically, Byrom contends that the June 16,
    2009 contempt order violates the Texas Constitution, which forbids that a person be imprisoned
    or incarcerated for a debt.
    A contempt order is reviewable only by a petition for writ of habeas corpus if the person
    held in contempt is confined. See In re Henry, 
    154 S.W.3d 594
    , 596 (Tex. 2005); Cadle Co. v.
    Lobingier, 
    50 S.W.3d 662
    , 671 (Tex. App.—Fort Worth 2001, pet. denied) (citing In re Long,
    
    984 S.W.2d 623
    , 625 (Tex. 1999) (orig. proceeding)). Therefore, we lack jurisdiction to review
    Byrom’s challenge to the June 16, 2009 contempt order on appeal. See Tex. Animal Health
    Comm'n v. Nunley, 
    647 S.W.2d 951
    , 952 (Tex.1983); Vernon v. Vernon, 
    225 S.W.3d 179
    , 180
    (Tex. App.—El Paso 2005, no pet.); see also In re 
    Long, 984 S.W.2d at 625
    .
    Moreover, on September 8, 2009, Byrom filed a petition for a writ of habeas corpus with
    this court, complaining of the June 16, 2009 contempt order. We granted Byrom’s petition for
    writ of habeas corpus and ordered him discharged because we determined that the contempt
    order violated the constitutional prohibition against imprisonment for debt and therefore, was
    void.3 Consequently, even if the contempt order could otherwise be reviewed by appeal, the
    issue Byrom raises here is moot. See Williams v. Lara, 
    52 S.W.3d 171
    , 184 (Tex. 2001) (stating
    that if a party lacks a legally cognizable interest in obtaining relief and, thus, no longer faces the
    unconstitutional conduct about which he complains, that party’s claim is moot).
    Byrom’s first issue is dismissed for want of jurisdiction.
    ATTORNEY’S FEES
    In his second issue, Byrom contends that the probate court erred in ordering subsequent
    attorney’s fees for failure to pay a court-ordered claim for attorney’s fees. In his brief, Byrom
    3
    See In re Byrom, 
    316 S.W.3d 787
    , 793-95 (Tex. App.—Tyler 2010, orig. proceeding [mand. denied]).
    3
    states that there were three separate awards of attorney’s fees. We will address each award of
    attorney’s fees separately.
    Removal of Independent Executor
    On September 10, 2008, the probate court removed Byrom as independent executor of
    Ruby’s estate, and awarded Anderson attorney’s fees against the estate in the amount of
    $14,034.10 for prosecuting Byrom’s removal as the independent executor.
    Before addressing the propriety of the fee award, we must first determine whether the
    award is appealable. To do so, we consider whether the probate court’s order removing Byrom
    as the independent executor – the order that includes the fee award – is an appealable order.
    Generally, an appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 
    39 S.W.3d 191
    , 195 (Tex. 2001). Probate proceedings are an exception to the ―one final judgment‖
    rule; in such cases, ―multiple judgments final for purposes of appeal can be rendered on certain
    discrete issues.‖ De Ayala v. Mackie, 
    193 S.W.3d 575
    , 578 (Tex. 2006) (quoting 
    Lehmann, 39 S.W.3d at 192
    ). The appropriate test for jurisdiction adopted by the Texas Supreme Court is as
    follows:
    If there is an express statute, such as the one for the complete heirship judgment, declaring the
    phase of the probate proceedings to be final and appealable, that statute controls. Otherwise, if
    there is a proceeding of which the order in question may logically be considered a part, but one or
    more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate
    order is interlocutory.
    
    Id. (quoting Crowson
    v. Wakeham, 
    897 S.W.2d 779
    , 783 (Tex. 1995)). In addition, courts may
    assess finality by determining whether the order to be challenged ―dispose[d] of all parties or
    issues in a particular phase of the proceedings‖ for which it was brought. Young v. First
    Community Bank, N.A., 
    222 S.W.3d 454
    , 457 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
    (quoting De 
    Ayala, 193 S.W.3d at 579
    ).
    Here, there is no express statute providing that an order removing an independent
    executor is final and appealable. See Logan v. McDaniel, 
    21 S.W.3d 683
    , 688 (Tex. App.—
    Austin 2000, pet. denied). The question, then, is whether the order removing Byrom as the
    independent executor disposed of each issue raised in the pleadings for that part of the probate
    proceeding or, in other words, whether the order conclusively disposed of that phase of the
    proceeding.    See 
    id. Anderson filed
    a motion requesting that Byrom be removed as the
    4
    independent executor of Ruby’s estate for cause, or in the alternative, be required to show cause
    why he should not be required to post a bond. Anderson also moved to compel an accounting and
    sought his attorney’s fees. The probate court’s order removed Byrom as the independent
    executor of Ruby’s estate, but did not discharge him, ordered him to file an accounting, and
    awarded attorney’s fees against the estate. Because the order challenged here addressed each
    issue raised in Anderson’s motion, thereby conclusively disposing of this phase of the probate
    proceeding, the order removing Byrom as independent executor is a final and appealable order.
    See id.; De 
    Ayala, 193 S.W.3d at 578
    . Therefore, the award of attorney’s fees included in the
    order is also appealable.
    Next, we must determine whether Byrom timely appealed the fee award. The removal
    order was signed on September 10, 2008. Byrom timely filed a motion to reform the judgment
    or alternatively, for new trial, complaining that the award of attorney’s fees was excessive,
    unreasonable, and unnecessary. Therefore, Byrom was required to file his notice of appeal on or
    before December 9, 2008. See TEX. R. APP. P. 26.1(a)(1) (stating that a notice of appeal must be
    filed within ninety days after the judgment is signed if any party timely files a motion for new
    trial). However, Byrom did not file his notice of appeal until September 9, 2009. See 
    id. Because Byrom
    did not timely file a notice of appeal of the fee award, we are without jurisdiction to
    consider this portion of his second issue. See TEX. R. APP. P. 42.3(a).
    Constructive Trust
    On August 10, 2009, the probate court granted Anderson’s motion for a constructive
    trust, and awarded Anderson attorney’s fees against Ruby’s estate in the amount of $4,662.94 for
    the constructive trust. On August 14, 2009, the probate court also granted Coker’s joinder in the
    motion for a constructive trust, and awarded Coker attorney’s fees against Ruby’s estate in the
    amount of $1,750.00 for the constructive trust. These awards totaled $6,412.94.
    The availability of attorney’s fees under a particular statute is a question of law. Holland
    v. Wal-Mart Stores, Inc., 
    1 S.W.3d 91
    , 94 (Tex. 1999). We review the availability of an award
    of attorney’s fees de novo. Estate of Hawkins, 
    187 S.W.3d 182
    , 185 (Tex. App.—Fort Worth
    2006, no pet.). An award of attorney’s fees is permissible if authorized by statute or by contract
    between the parties. Colonial Am. Casualty & Surety Co. v. Scherer, 
    214 S.W.3d 725
    , 729
    (Tex. App.—Austin 2007, no pet.). If a personal representative is removed for cause, the
    personal representative and the sureties on the personal representative’s bond are liable for
    5
    reasonable attorney’s fees incurred in removing the personal representative or in obtaining
    compliance regarding any statutory duty the personal representative has neglected.            TEX.
    PROBATE CODE ANN. § 245(a)(2) (Vernon Supp. 2010). In other words, section 245 provides for
    attorney’s fees incurred in connection with the removal of a representative for cause or due to the
    neglect of an administrator in performing his statutory duties. 
    Scherer, 214 S.W.3d at 731
    ;
    Estate of 
    Hawkins, 187 S.W.3d at 185
    .
    Here, Byrom was removed as the independent executor of Ruby’s estate for cause. See
    
    Scherer, 214 S.W.3d at 731
    . Anderson’s motion for a constructive trust, and Coker’s joinder in
    Anderson’s motion, included allegations that Byrom failed to deposit funds into the registry of
    the court as ordered by the probate court to pay claims Ruby’s estate owed to them. As an
    independent executor, Byrom had a statutory duty to pay claims against Ruby’s estate. See TEX.
    PROBATE CODE ANN. § 146(a)(3) (Vernon 2003). He failed to do so. Thus, Anderson and Coker
    requested a constructive trust to force Byrom to comply with his statutory duty to pay their
    claims from the assets of Ruby’s estate. Because Byrom was removed as independent executor
    for cause and Anderson and Coker incurred attorney’s fees to obtain Byrom’s compliance to
    perform his statutory duty, the probate court was authorized by statute to award Anderson and
    Coker attorney’s fees incurred in connection with the constructive trust. See TEX. PROBATE
    CODE ANN. § 245(a)(2); 
    Scherer, 214 S.W.3d at 731
    ; Estate of 
    Hawkins, 187 S.W.3d at 185
    .
    Accordingly, we overrule that portion of Byrom’s second issue regarding the award of attorney’s
    fees to Anderson and Coker incurred in connection with the constructive trust.
    Contempt
    Finally, Byrom argues that there is no provision in the Texas Probate Code for obtaining
    attorney’s fees for civil contempt actions after an independent executor has been removed. As
    noted above, the probate court ordered that Byrom be held in contempt, committed him to the
    county jail, and awarded Anderson attorney’s fees against Ruby’s estate in the amount of
    $7,058.17 for the contempt action. We granted Byrom’s petition for writ of habeas corpus
    regarding the June 16, 2009 contempt order and ordered him discharged because we determined
    that the contempt order violated the constitutional prohibition against imprisonment for debt and
    therefore, was void. A void order has no force or effect and confers no rights; it is a mere
    nullity. In re Garza, 
    126 S.W.3d 268
    , 271 (Tex. App.—San Antonio 2003, orig. proceeding
    [mand. denied]). Any attorney’s fees based upon a void order must also be void. Ex parte
    6
    Fernandez, 
    645 S.W.2d 636
    , 639 (Tex. App.—El Paso 1983, no writ). Because the June 16,
    2009 contempt order is void, the probate court’s award of attorney’s fees to Anderson for the
    contempt action is also void. See 
    id. Accordingly, we
    sustain that portion of Byrom’s second
    issue.
    Disposition
    Byrom’s second issue is dismissed for want of jurisdiction in part, overruled in part, and
    sustained in part.
    CONSTRUCTIVE TRUST
    In his third issue, Byrom argues that he was not given proper legal notice prior to the
    entry of the order granting the constructive trust. More specifically, he contends that he was not
    given notice of the hearing and, therefore, the order is voidable.
    Facts
    At the hearing on the motion for constructive trust on August 10, 2009, the judge of the
    probate court stated that he had anticipated a letter from Byrom stating that he would be unable
    to attend the hearing. It appears, however, that the letter did not arrive because the court ordered
    the bailiff to call Byrom’s name at the courthouse door. Byrom did not respond and did not
    appear at the hearing. Further, Anderson’s attorney stated that all parties were given notice of
    the hearing. Subsequently, the probate court granted the motion for a constructive trust. In its
    order, the probate court found that ―[a]ll persons entitled to citation were properly cited.‖
    At the hearing on Byrom’s petition for writ of habeas corpus, Byrom’s attorney explained
    that prior to the date of the August 10 hearing, Byrom was required to be at his physician’s office
    and, based on an understanding that he would receive something from Byrom’s physician, his
    attorney went to a seminar in Galveston. According to Byrom’s attorney, ―[a]pparently‖ there
    was a setting, but he did not recall getting notice. He stated that ―I’m certainly not saying I
    didn’t, but I didn’t recall getting notice of any settings on that day or I wouldn’t have been gone
    or I would have made arrangements.‖ Then, Byrom’s attorney stated that he was ―not saying I
    didn’t. I sure don’t -- didn’t see one; and probably if I didn’t or if I don’t find something, I may
    be filing some kind of a motion for rehearing on that receivership matter.‖ The judge expressed
    his recollection of some ―concern‖ that may have led to his allowing Byrom to bond out pending
    the current hearing because of ―some notice issues.‖ However, the judge declined to ―point[] a
    7
    finger at anybody.‖ In his motion for new trial, Byrom complains about a lack of notice for a
    hearing on Anderson’s motion for a nunc pro tunc order to correct an error in the order on the
    motion for a constructive trust.
    Applicable Law
    The law presumes a trial court hears a case only after proper notice to the parties.
    Osborn v. Osborn, 
    961 S.W.2d 408
    , 411 (Tex. App.—Houston [1st Dist.] 1997, writ denied). A
    recitation in a judgment that proper notice and hearing were had provides prima facie evidence
    of such notice, which must be accepted as true absent proof to the contrary. Aldine Indep. Sch.
    Dist. v. Baty, 
    946 S.W.2d 851
    , 852 (Tex. App.—Houston [14th Dist.] 1997, no writ). To
    overcome this presumption, an appellant must affirmatively show lack of notice. Hanners v.
    State Bar of Tex., 
    860 S.W.2d 903
    , 908 (Tex. App.—Dallas 1993, writ dism’d); In re Marriage
    of Lamirault, No. 07-01-00133-CV, 
    2001 WL 1166373
    , at *2 (Tex. App.—Amarillo Oct. 3,
    2001, no pet.) (not designated for publication).       This burden is not discharged by mere
    allegations, unsupported by affidavits or other competent evidence, that proper notice was not
    received. See 
    Hanners, 860 S.W.2d at 908
    ; In re Marriage of Lamirault, 
    2001 WL 1166373
    , at
    *2.
    Analysis
    As noted above, the order on the motion for a constructive trust states that ―[a]ll persons
    entitled to citation were properly cited.‖ This is prima facie evidence that proper notice was
    given to all parties. See 
    Baty, 946 S.W.2d at 852
    . To overcome this presumption, Byrom must
    affirmatively show a lack of notice. See 
    Hanners, 860 S.W.2d at 908
    ; In re Marriage of
    Lamirault, 
    2001 WL 1166373
    , at *2. At the hearing on his petition for writ of habeas corpus,
    Byrom’s attorney alleged that he did not recall receiving a notice of hearing, but did not
    affirmatively state that he did not receive notice. Further, although the judge of the probate court
    appeared to believe that there might have been some problems with notice, he did not elaborate
    and declined to ―point[] a finger at anybody.‖ The record does not contain a letter from the
    probate court or any of the parties regarding a notice of hearing. Nor does the record contain
    affidavits or other evidence affirmatively showing that Byrom did not receive proper notice. See
    
    Hanners, 860 S.W.2d at 908
    ; In re Marriage of Lamirault, 
    2001 WL 1166373
    , at *2. Because
    Byrom merely alleged that he did not receive proper notice of the hearing on the motion for a
    constructive trust without any supporting affidavits or evidence, he did not meet his burden to
    8
    rebut the presumption that he received proper notice. Accordingly, we overrule Byrom’s third
    issue.
    “SUMMARY” ARGUMENTS
    In his brief, Byrom makes three other ―summary‖ arguments, none of which are
    designated as issues in his brief. In ―summary‖ argument 4, he asserts that he is the sole
    beneficiary of Ruby’s estate and, thus, there is no beneficiary who can claim harm from his use
    of funds from Ruby’s estate for his benefit. Further, he claims that Anderson and Coker are
    ―merely‖ creditors and that their interest in Ruby’s estate is limited to the extent of their claims.
    In ―summary‖ argument 5, Byrom contends that the real parties in interest have obtained
    ancillary relief for their claims and that renders the contempt action moot. Both of these
    ―summary‖ arguments appear to be based on his first issue, that the probate court erred by
    finding him in contempt and committing him to the county jail for violating its removal order.
    For the reasons stated in our discussion of Byrom’s first issue, we lack jurisdiction to address
    Byrom’s ―summary‖ arguments 4 and 5.
    In ―summary‖ argument 6, Byrom argues that the probate court exceeded its authority by
    ordering a constructive trust because the property to be sold is his homestead, is located on land
    he had owned for over twenty years, and was, at least partially, paid for by community property
    funds belonging to him and his wife. Thus, he contends, this property should not be subject to
    Anderson’s and Coker’s claims. An appellant’s brief must contain a clear and concise argument
    for the contentions made, with appropriate citations to the authorities and to the record. TEX. R.
    APP. P. 38.1(i). Byrom does not provide any argument or citations to authorities or the record to
    demonstrate how the probate court exceeded its authority.          His argument consists of only
    conclusory statements that the probate court exceeded its authority, and that the property subject
    to the constructive trust was his homestead and community property. Because Byrom has failed
    to provide an adequate substantive analysis of this ―summary‖ argument, he has presented
    nothing for our review. See TEX. R. APP. P. 38.1(i). Therefore, we overrule Byrom’s ―summary‖
    argument 6.
    9
    CONCLUSION
    Because Byrom’s June 16, 2009 contempt order is not reviewable by appeal, we dismiss
    for want of jurisdiction his first issue, and his ―summary‖ arguments 4 and 5. We also dismiss
    for want of jurisdiction that portion of Byrom’s second issue regarding the award of attorney’s
    fees to Anderson for seeking Byrom’s removal as independent executor. We sustain that portion
    of Byrom’s second issue regarding the award of attorney’s fees to Anderson for the contempt
    action, and vacate the probate court’s award of attorney’s fees in its June 16, 2009 contempt
    order. In all other respects, we affirm the judgment of the probate court.
    JAMES T. WORTHEN
    Chief Justice
    Opinion delivered February 16, 2011.
    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
    (PUBLISH)
    10