Texas Probate Court Cases | Tex. App.- Houston 2008- 2007

Alpert v. Riley (Tex.App.- Houston [1st Dist.] Oct. 9, 2008)(Subst. op. by Bland)
(probate court, trust management dispute, attorney's fees)
DISMISS APPEAL: Opinion by Justice Bland
Before Chief Justice Radack, Justices Jennings and Bland
01-06-00505-CV Robert Alpert & Beneficiaries, Roman Alpert and Renee Picazo, Guardian of the
Estate of Daniel J. Alpert v. Mark Riley, Trustee
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Hon. Mike Wood

Thompson v. Myrow (Tex.App.- Houston [1st Dist.] Aug 14, 2008)(Keyes)
(probate case, finality of order, no interlocutory jurisdiction, DWOJ)
DISMISS APPEAL: Opinion by Justice Keyes
Before Chief Justice Radack, Justices Keyes and Higley
01-07-00125-CV Marjorie Thompson and George Thompson v. David Myrow
Appeal from Probate Court No 3 of Harris County
Trial Court Judge: Hon. Rory R. Olsen
We conclude that the January 11, 2007 order denying Marjorie Thompson's motion for summary
judgment did not "dispose of all issues in the phase of the proceeding for which it was brought," but
"merely set[] the stage for the resolution of all proceedings" related to her petition for a bill of review.
See Bozeman, 232 S.W.3d at 264 (citing Brittingham-Sada de Ayala, 193 S.W.3d at 578-79).
Accordingly, this Court has no jurisdiction to consider this appeal.

In the Estate of Gaines (Tex.App.- Houston [14th Dist.] July 1, 2008)(Anderson)
(probate matter estate, disqualification of independent executor of estate proper, production of bank
records, attorney's fee award to bank not supported by pleadings and void, turnover order, no
jurisdiction over interlocutory rejection of claim against estate )
AFFIRMED IN PART/REVERSED AND RENDERED: Opinion by Justice Anderson
Before Justices Brock Yates, Anderson and Brown
14-07-00257-CV In the Estate of Margaret Lynn Gaines, Deceased
Appeal from County Court at Law No 1 & Probate Court of Brazoria County
Trial Court Judge: Jerry Lee Mills

Essentially, the Probate Code requires a court to issue letters testamentary to qualified applicants, but it
does not require the court to issue letters testamentary to people it determines are disqualified. In this
case, the trial court was not required to appoint Davis as the independent executor because, under its
broad discretion, it found Davis unsuitable.      To the extent appellants challenge the sufficiency of the
evidence supporting the trial court=s decision, we conclude the evidence is sufficient. Davis=s
testimony at the hearing showed Davis failed to probate the will for over three years, which the court
stated potentially cost the Estate money;[3] Davis sought a subpoena on behalf of the Estate before
seeking appointment as the independent executor; Davis collected and distributed money from the
Estate without proper authority; and Davis considered the interests of one beneficiary over the interests
of the Estate.[4] Considering this evidence, we conclude the trial court did not abuse its discretion in
finding Davis unsuitable to serve as the independent executor of the Estate. See Spies v. Milner, 928
S.W.2d 317, 319 (Tex. App.- Fort Worth 1996, no writ) (finding the trial court did not abuse its discretion
in finding appellant unsuitable to serve as executor because the evidence showed appellant had
difficulty dealing with professionals, she was a difficult witness and changed her answers when
pressured, she admitted taking money out of the decedent=s account while the decedent was still alive,
and she did not get along with the other relatives involved in the probate proceeding).

Having considered all of appellants' issues, we affirm the trial court's order disqualifying Davis from
serving as the independent executor of the Estate; we affirm the trial court's ancillary order requiring
Davis to turn over estate funds to the court's registry; and we affirm the trial court's order denying
Davis's Motion to Compel / Motion for Contempt. We reverse that portion of the trial court's order
awarding the Bank attorney's fees, and we render judgment the Bank take nothing. Further, we dismiss
for want of jurisdiction the appellants' interlocutory appeal from the trial court's orders recognizing the
representative's rejection of Davis's claims against the Estate.

Alpert v. Riley (Tex.App.- Houston [1st Dist.] June 5, 2008)(first, superseded opinion by Bland)
(probate law, trust administration dispute)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by
Justice Bland
Before Chief Justice Radack, Justices Jennings and Bland
01-06-00605-CV Roman Alpert and Renee Picazo, Guardian of the Estate of Daniel Alpert, a Minor v.
Mark Riley, Robert Alpert
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Hon. Mike Wood

DISMISS APPEAL: Opinion by Justice Bland
Before Chief Justice Radack, Justices Jennings and Bland
01-06-00505-CV Robert Alpert & Beneficiaries, Roman Alpert and Renee Picazo, Guardian of the
Estate of Daniel J. Alpert v. Mark Riley, Trustee
Appeal from Probate Court No 2 of Harris County

McCall v. Smith (Tex.App.- Houston [14th Dist.] Apr. 3, 2008)(Guzman)
(divorce and life insurance)
REVERSED AND RENDERED IN PART AND REMANDED IN PART: Opinion by Justice Guzman
14-07-00032-CV Mary Linda McCall v. David Wayne Smith, Ryan Dylan Williams, Anna Elaine Harris,
and Dana L. Mayor (f/ka/a Dana L. Monford), Individually and as Temporary Administrator of the Estate
of Leslie H. WIlliams, Jr.--Appeal from Probate Court No 1 of Harris County
Trial Court Judge: RUSSELL P. AUSTIN

Thompson v. Winkelmann (Tex. App.- Houston [1st Dist.] Apr. 3, 2008)(Alcala) (real estate law, access
to cemetery)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by
Justice Alcala
Before Justices Taft, Keyes and Alcala
01-06-00457-CV Sampson Thompson, Jr. and Earline Thompson, Gordon Ray Johnson v. Sam A.
Winkelmann, Jr. et al.
Appeal from County Court at Law No 3 & Probate Court of Brazoria County

Clark v. Wells Fargo Bank, NA (Tex.App.- Houston [1st Dist.] Mar. 27, 2008)(Hanks)
(probate law, right to survivorship, CDs)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Nuchia, Hanks and Higley
01-06-00896-CV Russell Scott Clark, Jerry Ann Clark, Levi Clifford Clark, Cayleigh Rene, Chance
Parker, Whitney Blair Clark, Brett Allen Metcalf, Robin Renee Metcalf Saxon, Branden Dean Metcalf,
Shannon Kay Small, Jordan Dane Small and Madison Shae Small v. Wells Fargo Bank, NA.,
Successor-In-Interest to First Community Bank, NA and the Estate of Parker Williams
Appeal from Probate Court No 1 of Harris County
Trial Court Judge: Hon. Russell Austin

Clark v. Wells Fargo Bank, NA (Tex.App.- Houston [1st Dist.] Mar. 27, 2008)(Hanks)
DISMISS APPEAL: Opinion by Justice Hanks
Before Justices Nuchia, Hanks and Higley
01-07-00165-CV Russell Scott Clark, Jerry Ann Clark, Levi Clifford Clard, Cayleigh Rene, Whitney Clair
Clark, Brett Allen Metcalf, Robin Rene Metcalf Saxon, Brandon Dean Metcalf, Shannon Kay Small,
Jordan Dane Small v. Wells Fargo Bank, N.A., Successor-in-Interest to First Community Bank, N.A.
Appeal from Probate Court No 1 of Harris County

Backhus v. Werchan Wisnoski (Tex.App. - Houston [1st Dist.] Mar. 13, 2008)(Nuchia) (probate law,
construction of will, real estate law, partition of land)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
01-07-00041-CV Sharon Swank Backhus; Benjamin F. Swank, III; Shannon Lea Werchan Pickering;
Swank Turner Backhus; Benjamin Fontaine Swank, IV; Christian Harris Swank; and Suzanne Swank
Porter v. Haven Lynn Werchan Wisnoski and Shane Alan Werchan
Appeal from 12th District Court of Grimes County
Trial Court Judge: Hon. William McAdams

Esparza v. Peterson (Tex.App.- Houston [1st Dist.] Mar. 13, 2008) (agreed reversal and dismissal on
joint motion per settlement)
DISMISS APPEAL: Per Curiam (Joint motion to vacate judgment, dismiss appeal, release supersedeas
bond)
01-07-00791-CV Victoria T. Esparza and American Habilitation Services, Inc. v. Lana Peterson,
Individually and Mathew Peterson, Individually and Don Worley, as Independent Administrator of the
Estate of David B. Peterson, Deceased
Appeal from Probate Court No 2 of Harris County
Trial court judge: Hon. Mike Wood

Koval v. Kirkland Contractors, Inc. (Tex.App,- Houston [1st Dist.] Feb. 15, 2008)(Wilson)
(res judicata based on bankruptcy action, probate law, attorney's fees)
AFFIRM TC JUDGMENT: Opinion by Judge Wilson
Before Judge Wilson, Justices Alcala and Hanks
01-06-00067-CV Linda Koval v. Henry Kirkland Contractors, Inc.
Appeal from Probate Court No 3 of Harris County (Judge Hon. Rory R. Olsen)

BCM v. Camberg (Tex.App.- Houston [14th Dist.] Jan. 29, 2008)(Guzman)(Rule 11, wrongful death, jury
verdict)
AFFIRMED: Opinion by Justice Guzman
Before Justices Brock Yates, Fowler and Guzman
14-06-00500-CV Baylor College of Medicine v. Roy A. Camberg, Adminstrator of the Estate of Ana Julia
Ortiz, Deceased, and Texas Department of Family and Protective Services as Next Friend of Ana Delia
Meija Ortiz, Enid Valentina Meija Ortiz, and Rigoberto Mejia Ortiz, Minors
Appeal from Probate Court No 1 of Harris County (Judge Russell P. Austin)
In a single issue, Baylor asserts that, by including prejudgment interest in its judgment, the trial court supplied terms or
essential details not included in the parties' Rule 11 settlement agreement and thus violated its "ministerial duty" to
record only that which was agreed to by the parties. Appellees respond that the trial court's judgment was not based on
the Rule 11 agreement, but instead was rendered on the jury's verdict because the parties disputed the terms of the
agreement

Mendenhall v. The Estate Of Mendenhall (Tex.App.- Houston [14th Dist.] Jan. 29, 2008)(Price)
[probate, res judicata, proceeding in another state]
AFFIRMED: Price
Before Price, Justices Brock Yates and Guzman
14-06-00965-CV Denia Mendenhall v. The Estate of James Mendenhall, Deceased
Appeal from 234th District Court of Harris County (Judge Reece Rondon)

Cole v. Hogan (Tex.App.- Houston [1st Dist.] Dec. 20, 2007)(Hanks)(probate law, lost will)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Taft, Hanks and Higley
01-06-00477-CV Curtis Cole v. Ernestine Hogan
Appeal from Probate Court No 2 of Harris County (Judge Mike Wood)

Conte v. Ditta (Tex.App.- Houston [1st Dist.] Aug. 31, 2007)(Hanks)
(probate law, removal of trustee, time-barred petition)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by
Justice Hanks
Before Justices Taft, Alcala and Hanks
01-05-00603-CV Susan Conte v. Louis Ditta, Guardian of the Estate of Doris L. Conte, IP
Appeal from Probate Court No 1 of Harris County (Hon. Russell Austin)

Beatty v. Holmes (Tex.App.- Houston [14th Dist.] Aug. 14, 2007)(Seymore)
(probate law, right to survivorship, securities)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Seymore
(Before Justices Hudson, Fowler and Seymore)
14-03-00663-CV Douglas G. Beatty, individually and Independent Executor of the Estate of Kathyrn V.
Holmes, Deceased v. Harry Holmes, II,Individually and Independent Executor of the Estate of Thomas J.
Holmes, Sr., Deceased and as Trustee of Any Trust Named as a Legatee in the Will of Thomas J.
Holmes, Sr., Deceased--Appeal from Probate Court No 1 of Harris County

Holmes v. Holmes (Tex. App. Houston [14th Dist.] Aug. 14, 2007)(Seymore)
(probate law, spouses, right to survivorship)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Seymore
(Before Justices Hudson, Fowler and Seymore)
14-05-00474-CV Harry Holmes, individually and as Independent Executor of the Estate of Thomas J.
Holmes, Deceased, and as Trustee of any trust named as a legatee in the will of Thomas J. Holmes,
SR., Deceased v. Douglas G. Beatty, individually and as Independent Executor of the Estate of Kathryn
V. Holmes, Deceased--Appeal from Probate Court No 1 of Harris County

Moon v. Lesikar (Tex.App.- Houston [14th Dist.] Jul. 10, 2007)(Hudson)(family trust, standing)
AFFIRMED: Opinion by Justice Hudson
Before Justices Anderson, Hudson and Guzman
14-05-00677-CV Carolyn Ann Lesikar Moon, Individually and a Named Trustee of the Carolyn Ann
Appeal from 149th District Court of Brazoria County (Judge Robert May)
Lesikar Moon Special Trust v. Woody K. Lesikar, Individually, as Trustee of the Woodrow v. Leiskar
Family Trust, et al
Appeal from 149th District Court of Brazoria County (Judge Robert May)
Concurring Opinion by Justice Guzman in Moon v. Lesikar (Tex.App.- Houston [14th Dist.] Jul. 10,
2007)(Guzman, concurring)
Before Justices Anderson, Hudson and Guzman
14-05-00677-CV Carolyn Ann Lesikar Moon, Individually and a Named Trustee of the Carolyn Ann

Lesikar v. Lesikar Family Trust (Tex.App.- Houston [14th Dist.] Jul. 10, 2007)(Hudson)(probate, trust, no
contest clause)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Hudson
Before Justices Brock Yates, Anderson and Hudson
14-05-01246-CV Woody K. Lesikar, Individually and as Trustee of the Woodrow V. Lesikar Family
Trust, Et Al v. Carolyn Ann Lesikar Moon, Individually and as Named Trustee of the Carolyn Ann Lesikar
Moon Special Trust
Appeal from 149th District Court of Brazoria County (Judge Robert May)

Ajudani v. Walker (Tex.App.- Houston [1st Dist.] May 24, 2007)(Keyes)(ad litem fees)
[probate law, attorney ad litem fee appeal]
MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Higley
01-06-00089-CV        Shirin Ajudani and Rosemary Shookoufandeh, Lana Dieringer v. Jimmy Walker
Appeal from Probate Court No 1 of Harris County

Probate Court Had Jurisdiction to Determine Title to Property and Right of Possession
York v. Samuel (Tex.App. - Houston [1st Dist.] Apr. 5, 2007)(Alcala)
[probate dispute over real estate, eviction, forcible entry and detainer, FED, forcible detainer, FD,
defective title, constructive trust]
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Justices Taft, Alcala and Hanks
01-05-00549-CV Shirley Moore York v. William A. Samuel and Margaret Samuel
Appeal from Probate Court No 1 of Harris County

Fletcher v. Harris (Tex.App.- Houston [14th Dist.] Apr. 19, 2007)(Yates)(probate)
AFFIRMED: Opinion by Justice Brock Yates
Before Justices Brock Yates, Anderson and Hudson
14-05-00998-CV Marvin V. Fletcher v. Willie T. Harris
Appeal from Probate Court No 4 of Harris County (HON. WM CAMERON MCCULLOCH)

Mandell v. Mandell (Tex.App.- Houston [14th Dist.] Jan. 9, 2007)(Hedges)
[probate law, breach of contract, attorney's fees, finality, preferential right to purchase]
AFFIRMED: Opinion by Chief Justice Hedges
(Before Chief Justice Hedges, Justices Fowler and Edelman)
14-06-00031-CV        David M. Mandell v. Jeanne Mandell, Joyce Field, and Susan Alexander,
Independent Co-Executrices of the Estate of Sam Field, Deceased
Appeal from Probate Court No 2 of Harris County (Judge Michael James Wood)

In re Woofter (Tex.App.- Houston [1st Dist.] Jan. 25, 2007)(per curiam mandamus denial)
[ILA also filed, demonstrating adequate remedy]
DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam
(Before Justices Nuchia, Keyes and Higley)
01-06-01174-CV        In re Aaron Lee Woofter, M.D.; Danny Chu, M.D.; Jonathan Charles Daniel, M.D.;
and Fred Milton Sutton, Jr., M.D.
Appeal from Probate Court No 1 of Harris County (Hon. Russell Austin)