in the Estate of Rose Farha Nunu ( 2018 )

Dismissed and Memorandum Opinion filed June 28, 2018.
In The
Fourteenth Court of Appeals
NO. 14-17-00495-CV
IN THE ESTATE OF ROSE FARHA NUNU, DECEASED
On Appeal from the Probate Court No. 1
Harris County, Texas
Trial Court Cause No. 416,781
MEMORANDUM OPINION
Before us for the third time is a continuing dispute between siblings
concerning the probate of their mother’s estate. See In re Estate of Nunu, 542
S.W.3d 67 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (“Nunu I”); In re
Nunu, No. 14-17-00106-CV, 2017 WL 1181364 (Tex. App.—Houston [14th Dist.]
Mar. 30, 2017, orig. proceeding [mand. denied]) (per curiam) (mem. op.) (“Nunu
II”).1 In this appeal, Paul Nunu challenges three trial court orders that (1) accepted
1
Because of the importance of the chronology of events in the trial court, we identify Nunu
I and Nunu II by the date the proceeding was filed rather than the date the opinion issued.
the conditional resignation of Paul’s sister Nancy Nunu Risk as independent
executrix and appointed third party Howard M. Reiner as successor dependent
administrator; (2) overruled Paul’s objections both to the creation of a dependent
administration and to Reiner’s appointment; (3) denied Paul’s application to be
appointed as successor independent executor; and (4) denied his motion to compel
an accounting from Nancy. Because Paul’s appeal of the trial court’s first order is
untimely and the trial court’s second and third orders are partly refusals to reconsider
the first order and partly non-appealable interlocutory rulings on new matters, we
dismiss the appeal for want of jurisdiction.
I. NUNU I
In Nunu I, Paul alleged that his sister Nancy, in her capacity as independent
executrix of their mother’s estate, had committed breach of fiduciary duty,
negligence per se, gross negligence, gross mismanagement, gross misconduct, and
fraud. Nunu I, 542 S.W.3d at 72. He asked the trial court to remove Nancy as
independent executrix of their mother’s estate, compel distribution of the estate,
award him exemplary damages, declare Nancy’s inheritance forfeit, declare Nancy’s
attorneys’ fees forfeit, and enforce an alleged partition agreement. See id. at 72–73.
On the third day of the jury trial, Paul nonsuited his claims to remove Nancy or to
enforce the forfeiture in his mother’s will, reserving only his claims to compel
distribution of the estate and to contest and seek forfeiture of Nancy’s attorneys’
fees. Id. at 72. Regarding Paul’s motions to compel distribution of the estate, we
noted that “unless the court finds a continued necessity for administration of the
estate, the court shall order its distribution by the independent executor to the persons
entitled to the property.” Id. at 85 (quoting Act of May 29, 1987, 70th Leg., R.S.,
ch. 565, § 1, 1987 TEX. GEN. LAWS 2246, 2246 (amended 2011 and 2013) (current
version at TEX. EST. CODE § 405.001(b))).
2
In response to Paul’s second application to compel distribution, the trial court
failed to find a continued necessity for administration. See id. at 86. On November
2, 2017, we affirmed that portion of the judgment, but held that the trial court erred
in failing to rule on the extent to which Nancy’s expenses and legal fees incurred in
the removal action are to be paid from the estate’s assets and in failing to order
distribution of the estate in accordance with the terms of the will. See id. at 89. We
remanded the case to the trial court with instructions to the trial court (1) to
determine the amount of Nancy’s reasonable and necessary expenses and attorneys’
fees incurred in that action to be paid from the estate’s assets; (2) to authorize Nancy
to make such payments from the estate’s assets and to order her to reimburse the
estate to the extent that her expenses and legal fees incurred in that action and already
paid with estate funds exceeds the amount of reasonable and necessary expenses and
fees found by the trial court; (3) to compel distribution of the estate in accordance
with the will of Rose Farha Nunu; and (4) if any portion of the estate is incapable of
distribution without prior partition or sale, to order partition and distribution, or sale,
in the manner provided for the partition and distribution of property incapable of
division in estates administered under the county court’s direction.2 Id. at 89–90.
We further pointed out that the trial court is not required to compel distribution of
the estate’s assets in accordance with the terms of any partition or settlement
agreement that had not been signed by all of the estate’s beneficiaries. See id. at 87.
After the denial of Paul’s motion for rehearing and his petition for review to the
Supreme Court of Texas, our mandate issued in that case on May 17, 2018.3
2
See Act of May 29, 1987, 70th Leg., R.S., ch. 565, § 1, 1987 TEX. GEN. LAWS 2246, 2246
(amended 2011 and 2013) (current version at TEX. EST. CODE § 405.001(b)).
3
The trial court rendered the orders at issue in this appeal before we ruled in Nunu I, and
the trial court’s compliance with the mandate in that case already may have rendered this appeal
moot; however, the parties have not briefed the issue and the record contains insufficient
3
II. THE TRIAL COURT’S ORDERS AND NUNU II
In the meantime, however, events had taken a different course in the trial
court. The trial court signed three orders, each of which addressed at least one
document filed by Paul containing various objections, applications, or motions. For
clarity and consistency, we refer to these documents respectively as the trial court’s
First, Second, and Third Orders, which respectively addressed Paul’s First, Second,
and Third Objections.
A. Paul’s First Objections and the Trial Court’s First Order
While the appeal of Nunu I was pending, Nancy applied to the trial court to
resign as independent executrix on the condition that she or a qualified third party
be appointed as dependent administrator of the estate. Paul responded by filing his
First Objections.4
In his First Objections, Paul argued that Nancy had not supported her
conditional resignation with a verified accounting as required by Texas Estates Code
section 361.001. See TEX. EST. CODE ANN. § 361.001 (West 2014) (“A personal
representative who wishes to resign the representative’s trust shall file a written
application with the court clerk, accompanied by a complete and verified exhibit and
final account showing the true condition of the estate entrusted to the
representative’s care.”). Although this section addresses the documents to be
included in a personal representative’s application to resign, Paul nevertheless asked
the trial court to accept Nancy’s resignation, characterizing his objection instead as
an objection to the appointment of a dependent administrator.
information for us to address it independently. Because we conclude that we lack jurisdiction over
this appeal, mootness would not change the result.
4
This is Paul’s “Objection to Application for Dependent Administration and Objection to
Re-appointment of Nancy Risk,” filed December 6, 2016.
4
In addition, Paul argued that the application to resign and for appointment of
a successor dependent administrator violated (1) the part of his mother’s will that
provided, “I direct that no action shall be taken in any court in the administration of
my estate other than probating and recording of this Will and the return of an
inventory appraisement and list of claims of my estate”; (2) the terms of the final
judgment rendered on November 27, 2012, which similarly stated, “It is ORDERED
that . . . no other action shall be had in this Court other than the return of an
Inventory, Appraisement, and List of Claims as required by law”; and (3) Texas
Estates Code section 401.001(a), which authorizes an independent administration.
See id. § 401.001(a).5 Paul further argued that the application interfered with this
Court’s jurisdiction in the then-pending Nunu I because it potentially would moot
the appeal by disposing of estate assets before that appeal was decided.6 Regarding
Nancy’s request to be reappointed as successor dependent administrator, Paul
objected on the same grounds that were later decided against him in Nunu I.7
On January 12, 2017, the trial court signed an order accepting Nancy’s
conditional resignation and appointing third party Howard M. Reiner as dependent
administrator (“the First Order”).
5
This section was effective after Rose Farha Nunu’s death. See instead Act of May 27,
1977, 65th Leg., R.S., ch. 390, § 3, 1977 TEX. GEN. LAWS 1061, 1061.
6
Nancy’s application to resign and her application for appointment of a successor
dependent administrator addressed only the identity of the estate’s future personal representative;
it did not address the disposition or disbursement of estate assets.
7
Paul argued that Nancy was guilty of self-dealing, violated Texas Estates Code section
405.002(b), and failed to honor an agreement with the heirs for the partition of the estate’s real
property. We explained in Nunu I that Paul non-suited with prejudice—and thus, could not
relitigate—his claims against Nancy for allegedly diverting estate assets, breaching her fiduciary
duties, and violating Texas Estates Code 405.002(b). See Nunu I, 542 at 84–85. We further
explained in Nunu I that it is undisputed that Nancy refused to sign the partition agreement Paul
drafted, and thus, the trial court was not required to compel distribution of the estate in accordance
with the unsigned agreement. Id. at 87.
5
B. Paul’s Second Objections and the Trial Court’s Second Order
One week after the trial court granted Nancy’s resignation and appointed
Reiner, Paul filed his Second Objections, in which he moved for a rehearing of the
trial court’s First Order.8 Paul again objected that Nancy’s application to resign was
fatally defective for failing to include a verified final account. He also argued that
the Texas Estates Code section 404.005 authorizes the appointment of a successor
independent executor but does not authorize the appointment of a successor
dependent administrator.9 He argued that the only relief that the trial court had
discretion to grant in response to Nancy’s applications was to condition the
acceptance of her resignation on a satisfactory accounting and to appoint Paul as
successor independent executor.10 On the other hand, Paul also argued that the
appointment of a successor to Nancy was time-barred under Texas Estates Code
section 301.002—an argument that, if correct, also would bar his own appointment.
See TEX. EST. CODE ANN. § 301.002 (West Supp. 2017) (with certain exceptions,
“an application for the grant of letters testamentary or of administration of an estate
must be filed not later than the fourth anniversary of the decedent’s death”).11 In
addition, Paul applied for the first time to be appointed as successor independent
executor.
8
Paul’s Second Objections, which were filed on January 19, 2017, were titled, “Motion for
Rehearing of Application for Dependent Administration.”
9
See TEX. EST. CODE ANN. § 404.005 (West 2014). Nancy did not rely on this section in
her application for appointment of a successor dependent administrator.
10
Paul had not previously applied to be appointed as successor independent executor upon
Nancy’s resignation.
11
Section 301.002 is in Subtitle G of the Estate Code, titled, “Initial Appointment of
Personal Representative and Opening of Administration” (emphasis added). Such letters were
timely granted to Nancy, the person initially appointed as the estate’s personal representative.
6
Nancy filed a response in which she asserted that letters testamentary already
had been issued to her and that the Texas Estates Code does not require letters
testamentary to be issued to a successor personal representative within four years of
the decedent’s death. As for appointing Paul as successor independent executor,
Nancy pointed out that all of the estate’s distributees had not agreed to his
appointment. See id. § 404.005(a) (West 2014) (stating that if no independent
executor or successor named in the will is willing to serve as a successor independent
executor, then “all of the distributees of the decedent” may apply to the probate
court for an order appointing a qualified person, firm, or corporation as successor
independent executor) (emphasis added).
On February 3, 2017, the trial court signed the Second Order, in which it
denied Paul’s Second Objections “in all respects.”
C. The Mandamus Proceeding: Nunu II
Five days after the trial court signed the Second Order, Paul challenged the
trial court’s First Order through a petition for a writ of mandamus. See Nunu II,
2017 WL 1181364, at *1. In our opinion in that case, we pointed out that one seeking
mandamus relief must show that the trial court clearly abused its discretion and that
the relator has no adequate remedy by appeal. Id. Because Paul failed to establish
that one or both of these requirements were met, we summarily denied the petition
on March 30, 2017. Id.
D. Paul’s Third Objections and the Trial Court’s Third Order
While Nunu II was pending, Paul filed his Third Objections.12 In this filing,
he objected to Reiner’s appointment on the ground that Reiner had not filed an oath
12
This document, filed on March 7, 2017, was titled, “Objection to Howard M. Reiner,
Administrator and Application to Appoint Paul E. Nunu.”
7
and bond within twenty-one days of the order granting letters testamentary or of
administration, which he contended was required by Texas Estates Code sections
305.003 and 305.004.13 Citing Texas Estates Code section 305.110 and 361.051,
Paul asked the trial court to remove Reiner without notice and to appoint a new
personal representative.14 Paul additionally argued that under Texas Estates Code
section 361.103, the trial court was required to remove Reiner and to appoint Paul
because Paul had a prior right to letters testamentary or of administration.15 Paul
further asserted that the trial court had abused its discretion in appointing a third
party, describing himself as a qualified person with a prior right under Texas Estates
Code section 304.001.16 In the same motion, Paul argued for the third time that the
Texas Estates Code requires an application to resign to be accompanied by a verified
final accounting. He therefore asked the trial court to compel an accounting from
Nancy. There is no response to Paul’s Third Objections in the record.
13
See TEX. EST. CODE ANN. §§ 305.003–.004 (West 2014).
14
See id. § 305.110 (“Another person may be appointed as personal representative to
replace a personal representative who at any time fails to give a bond as required by the court in
the period prescribed by this chapter.”); id. § 361.051(1) (“The court, on the court’s own motion
or on the motion of any interested person, and without notice, may remove a personal
representative appointed under this title who . . . neglects to qualify in the manner and time
required by law . . . .”).
15
See id. § 361.103 (requiring a trial court to revoke letters testamentary or of
administration and grant letters to a second applicant if the second applicant is qualified, has a
prior right to the letters, and has not waived the prior right).
16
See id. § 304.001 (letters are to granted to persons qualified to act in the following order:
(1) the executor named in the decedent’s will; (2) the decedent’s surviving spouse; (3) the principal
devisee of the decedent; (4) any devisee of the decedent; (5) the decedent’s next of kin; (6) a
creditor of the decedent; (7) any applicant of good character residing in the county; (8) any other
person not disqualified under section 304.003; and (9) any appointed public probate
administrator).
8
Ten days after Paul filed his Third Objections, Reiner filed his oath and
bond,17 and the trial court approved the bond shortly thereafter. On May 25, 2017,
the trial court signed the Third Order, which denied Paul’s Third Objections “in all
respects.” Less than thirty days later, Paul filed a notice of appeal attempting to
challenge the trial court’s First, Second, and Third Orders.
III. THIS APPEAL: NUNU III
In his first issue, Paul contends that the trial court’s First Order accepting
Nancy’s resignation and appointing Reiner is void or voidable. In his second issue,
he contends that the trial court erred in rendering its First Order appointing Reiner
as successor dependent administrator because the appointment violates the statute
governing the order of appointments. Under the same heading, Paul implicitly
challenges the trial court’s Second and Third orders by arguing that the trial court
erred in denying his application for appointment as successor independent executor.
In his third issue, Paul challenges the trial court’s Third Order to the extent that it
denied the portion of his requests that the trial court remove Reiner for failing to
timely qualify.
On May 31, 2018, we notified the parties of our intent to dismiss the appeal
for want of jurisdiction unless, within ten days of the notice, a response was filed
demonstrating grounds for continuing the appeal. See TEX. R. APP. P. 42.3(a). In
his response, Paul argues that the trial court’s First Order cannot be a final judgment
for two reasons.
17
See id. § 305.003(2) (providing that an oath may be taken and subscribed any time before
the letters testamentary or of administration are revoked for the failure to qualify within the time
allowed); id. § 305.004(a)(2) (similarly providing that a bond may be filed with the clerk any time
before the letters testamentary or of administration are revoked for failure to timely qualify).
9
First, Paul contends that by denying his petition for a writ of mandamus in
Nunu II, “this Court impliedly found an ‘adequate remedy by appeal’ existed . . . so
the January 12, 2017 order could not be a final judgment.”18 Mandamus relief will
be denied if the relator fails to show either that (1) the relator lacks an adequate
remedy by appeal, or (2) the trial court clearly abused its discretion. We stated in
Nunu II only that Paul “has not established that he is entitled to mandamus relief.”19
It is not possible to determine from this language whether we concluded that Paul
failed to establish the absence of an adequate remedy by appeal, a clear abuse of
discretion, or both. Nunu II offers no guidance in deciding the jurisdictional issue
before us.
We do not, however, write on a clean slate. Many courts—including this
one—have treated an order appointing an estate’s personal representative as a final
judgment for the purpose of appeal. See, e.g., In re Estate of Arizola, 401 S.W.3d
664, 670 (Tex. App.—San Antonio 2013, pet. denied) (“[A]n order appointing an
administrator ends a phase of the proceedings in resolving the issue of who will
represent the estate.”); In re Estate of Gober, 350 S.W.3d 597, 598–99 & nn. 1 & 2
(Tex. App.—Texarkana 2011, no pet.) (construing an order as appointing an
administrator and noting the order was appealable); Guyton v. Monteau, 332 S.W.3d
687, 690 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (treating as a final
judgment the trial court’s order appointing a third-party successor administrator and
denying daughter’s application for appointment as successor administratrix); Pine v.
deBlieux, 360 S.W.3d 45, 46–47 & n.1 (Tex. App.—Houston [1st Dist.] 2011, pet.
denied) (noting that an order accepting initial administrator’s resignation and
appointing a successor administrator is appealable); Eastland v. Eastland, 273
18
Bold and italics removed.
19
Nunu II, 2017 WL 1181364, at *1.
10
S.W.3d 815, 819 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding that an
order appointing an executor is appealable); In re Estate of Washington, 262 S.W.3d
903, 905–06 (Tex. App.—Texarkana 2008, no pet.) (trial court’s order removing
administrator, requiring a final accounting, and appointing a successor administrator
is a final, appealable order); see also TEX. EST. CODE ANN. § 351.053 (West 2014)
(stating that an appointee shall continue to act as an administrator “[p]ending an
appeal from an order or judgment appointing an administrator”). Paul neither
attempts to distinguish authorities such as these nor advances any reason for us to
depart from our own precedent.
Second, Paul argues that the First Order is interlocutory under Brittingham-
Sada de Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (sub. op. on denial of
reh’g). In Brittingham-Sada de Ayala, the Texas Supreme Court explained that
probate cases are an exception to the general rule that there is but one final judgment
in a case. Id. at 578. The court reaffirmed its holding in Crowson v. Wakeham, 897
S.W.2d 779 (Tex. 1995), that whether the order adjudicates “a substantial right” is
one factor to be considered in determining whether the probate order is final, but
equally important is the precedent “that the order must dispose of all issues in the
phase of the proceeding for which it was brought.” Brittingham-Sada de Ayala, 193
S.W.3d at 578 (citing Crowson, 897 S.W.2d at 782–83). The court stated,
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, 897 S.W.2d at 783).
Paul maintains that the First Order is interlocutory under Brittingham-Sada de
Ayala because the order did not dispose of “the resignation issue of providing a
11
complete and verified final account” as required under Texas Estates Code section
361.001. See TEX. EST. CODE ANN. § 361.001 (“A personal representative who
wishes to resign the representative’s trust shall file a written application with the
court clerk, accompanied by a complete and verified exhibit and final account
showing the true condition of the estate entrusted to the representative’s care.”). But
see id. § 361.102(a) (West 2014) (stating that if a personal representative resigns,
the court may appoint a successor representative, and “[t]he appointment may be
made before a final accounting is filed”). Paul states this issue was not resolved
until the trial court rendered its Third Order denying his motion to compel an
accounting. We disagree.
Looking at the pleadings in this phase of the case, Nancy filed an application
to resign, a notice of conditional resignation, and an application for appointment of
a successor dependent administrator. In Paul’s First Objections, he expressly
argued, among other things, that Nancy’s application to resign did not comply with
Texas Estates Code section 361.001 because she had not provided a full and verified
accounting for the estate. This phase of the proceeding ended on January 12, 2017,
when the trial court rendered its First Order accepting Nancy’s resignation and
appointing Reiner as dependent administrator. The trial court expressly stated in its
First Order that it considered Paul’s objections, and because Paul objected on the
ground that the absence of a verified accounting rendered Nancy’s application
defective, the trial court’s acceptance of her resignation implicitly overruled Paul’s
objection that a verified accounting is required. Cf. TEX. R. APP. P. 33.1(a)(2)(A) (a
trial court’s implicit ruling on a complaint brought by timely request, objection , or
motion is preserved for appellate review).
Paul also argues that a final order cannot be rendered until all of the
requirements of Texas Estates Code chapter 361 have been complied with and the
12
court approves or disapproves the final account. But if this were true, then we still
would lack jurisdiction, albeit for a different reason: if there is no final judgment
until the probate court approves or disapproves the final accounting, then none of
the trial court’s three orders would be appealable. However, we consider the trial
court’s First Order to be a final, appealable judgment under the cases cited above—
each of which was decided after Brittingham-Sada de Ayala. Here, too, Paul does
not attempt to reconcile his theory with the many cases treating an order appointing
an estate’s personal representative as a final, appealable order. See, e.g., Arizola,
401 S.W.3d at 670; Pine, 360 S.W.3d at 46–47 & n.1; Guyton, 332 S.W.3d at 690;
Gober, 350 S.W.3d at 598–99 & nn. 1 & 2; Eastland, 273 S.W.3d at 819;
Washington, 262 S.W.3d at 905–06. In contrast, orders denying a motion to remove
an administrator—such as the trial court’s Second and Third Orders in this case—
are non-appealable interlocutory rulings. Cf. Brittingham-Sada de Ayala, 193
S.W.3d at 578 (treating the denial of a motion to remove an executor as
interlocutory); In re Estate of Easley, No. 07-15-00378-CV, 2017 WL 764603, at *2
(Tex. App.—Amarillo Feb. 24, 2017, no pet.) (mem. op.) (same); Pine, 405 S.W.3d
at 145 (two orders denying a motion to remove the estate’s administrator and a
request that the court order the administrator to conduct discovery were
interlocutory).
In sum, Paul’s response to our notice of intent to dismiss does not demonstrate
grounds for continuing the appeal. We accordingly dismiss the appeal for want of
jurisdiction.
IV. CONCLUSION
The trial court’s First Order accepting Nancy’s resignation, appointing Reiner
as successor dependent administrator, and implicitly overruling Paul’s objections
was a final judgment, and Paul’s attempt to appeal that order is untimely.
13
To the extent that the trial court’s Second Order rules on Paul’s various
requests to set aside or modify the trial court’s First Order, the attempted appeal of
the Second Order also is untimely, for a challenge to that part of the Second Order
would have been included in an appeal of the trial court’s First Order. To the extent
that the Second Order addresses new matter such as Paul’s request that the trial court
remove Reiner and appoint Paul as successor independent executor, the order is
interlocutory, and thus, unappealable.
The trial court’s Third Order rejected the arguments raised in Paul’s Third
Objections, most of which reurged the grounds raised in his First and Second
Objections. The only new matter raised in Paul’s Third Objections was his request
to remove Reiner for failure to timely qualify as a dependent administrator. To the
extent that the trial court’s Third Order rejected that request, the ruling was
interlocutory.
Because we lack jurisdiction to review any of the trial court’s three challenged
order, we dismiss this appeal for lack of jurisdiction.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Busby, and Jewell.
14