| Probate Court Cases and Related Case Law From Houston Courts of Appeals - Tex.App.- Houston Houston Opinions |
The Texas Probate Code defines an “independent executor” as “the personal
representative of an estate under independent administration as provided in Section
145 of this Code.” TEX. PROB. CODE ANN. § 3(q). The purpose of section 145—and of
independent administration itself—is to free an independent executor from the expense
and control of judicial supervision except where the Probate Code otherwise provides.
Corpus Christi Bank & Trust v. Alice Nat'l Bank, 444 S.W.2d 632, 634–35 (Tex. 1969);
Bunting v. Pearson, 430 S.W.2d 470, 473 (Tex. 1968); Rowland v. Moore, 174 S.W.2d
248, 249–50 (Tex. 1943); Eastland v. Eastland, 273 S.W.3d 815, 821 (Tex. App.—
Houston [14th Dist.] 2008, no pet.).
This “administration” that the executor performs refers to the management of the estate
of a decedent. The estate of a decedent immediately vests in the devisees, legatees,
and heirs at law of the estate, subject to payment of decedent’s debts. TEX. PROB.
CODE ANN. § 37. As trustee of the property of the estate, an executor is subject to the
fiduciary standards applicable to all trustees. Human Soc’y of Austin & Travis Cnty v.
Austin Nat’l Bank, 531 S.W.2d 574, 577 (Tex. 1975). Thus, the duties of an executor to
an estate are those of a trustee. Geeslin v. McElhenney, 788 S.W.2d 683, 684–85 (Tex.
App.—Austin 1990, no writ). Section 230 of the Texas Probate Code codifies the
common law concept that the executor has a fiduciary duty to exercise reasonable care
in the administration of the estate property. TEX. PROB. CODE ANN. § 230 (“The
executor or administrator shall take care of the property of the estate of his testator or
intestate as a prudent man would take of his own property.”); see also RESTATEMENT
(THIRD) OF TRUSTS § 77 (2007) (stating that trustee has duty to administer the trust
as a prudent person would).
An independent executor’s fiduciary duty runs to the estate’s beneficiaries, and it arises
from his status as trustee of the estate’s property. Human Soc’y of Austin, 531 S.W.2d
at 577; see also Huie v. DeShazo, 922 S.W.2d 920, 922–23 (Tex. 1996) (holding that
relationship between executor and estate’s beneficiaries is one that gives rise to
fiduciary duty as matter of law). Thus, the independent executor owes a legal duty of
care to the estate and its beneficiaries. See Frost Nat’l Bank of San Antonio v. Kayton,
526 S.W.2d 654, 660–61 (Tex. Civ. App.—San Antonio 1975, writ ref’d n.r.e.) (holding
that former temporary administratrix of estate owed legal duty of care under Section 230
of Probate Code to estate in negligence action brought by permanent administrator);
see also Lawyers Sur. Corp. v. Snell, 617 S.W.2d 750, 752 (Tex. Civ. App.—Houston
[14th Dist.] 1981, no writ) (holding that former temporary administratrix of estate did not
owe legal duty of care under Section 230 of Probate Code to obtain fire insurance for
estate property in negligence action because it was impossible to obtain such
insurance). In contrast, an executor does not owe a fiduciary duty to persons who claim
an interest in a decedent’s non-testamentary property; to them, she owes no legal duty
of care. See In re Ernst, No. 04-10-00319-CV, 2011 WL 192654 (Tex. App.—San
Antonio Jan. 12, 2011, no pet.) (mem. op.) (holding that executor owed no legal duty
under negligence theory to decedent’s sons, who claimed bank accounts upon her
death under a right of survivorship, but were not beneficiaries of any of decedent’s
property under her will).
RECENT TEXAS SUPREME COURT DECISIONS
ON PROBATE ISSUES
Holmes v. Beatty, No. 07-0784 (Tex. Jun. 26, 2009)(Jefferson)(probate law, right to
survivorship accounts, community property survivorship agreement) from Harris
County; 14th district (14-03-00663-CV, 233 SW3d 475, 08-14-07)
Smith v. O'Donnell, No. 07-0697 (Tex. Jun. 26, 2009)(O'Neill)(PROBATE LAW: legal
malpractice suit by executor of estate against decedent's attorney, non-estate planning)
Kappus v. Kappus, No. 08-0136 (Tex. May 1, 2009)(Willett) (probate case, mere conflict
of interest of
independent executor not enough to warrant removal)
Ditta v. Conte, No. 07-1026 (Tex. Jun. 5, 2009) (Willett) (in action for removal of trustee,
statute of limitations
does not apply; trustee may be removed for cause at any time, based on complaint of
acts or omissions that would otherwise be time-barred, but suit for breach of fiduciary
duty seeking money damages is subject to four-year SoL)
Edwards & Sons, Inc. v. Beyer., No. 05-0580 (Tex. Sep. 28, 2007)(Wainwright)(financial
services, breach of contract, joint account with right of survivorship, Texas Probate
Code, attorney's fees)
Brittingham-Sada de Ayala v. Mackie, No. 04-0160 (Tex. Apr. 21, 2006)(Chief Justice
Wallace Jefferson) (probate matter, ILA, interlocutory appeal not authorized in this case)
Maria Cristina Brittingham-Sada de Ayala (“Ayala”), defendant below, alleged that the
trial court lacked subject matter jurisdiction over this ancillary probate proceeding
involving the estate of her father, a Mexican testator whose will was probated in Mexico.
The trial court denied Ayala’s motion to dismiss, and she pursued an interlocutory
appeal. The court of appeals concluded it had jurisdiction over the appeal, and the
parties now agree. Because we disagree, we reverse the court of appeals’ judgment
and dismiss the appeal.
HOUSTON COURT OF APPEALS CASES
Conte v. Ditta (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Hanks) (on remand from
Texas Supreme Court, which held that “[n]o statute of limitations period applies in a
trustee-removal suit) (action to remove trustee, accounting by trustee, appointment of
successor trustee, modification of trust due to change in circumstances)
AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TRIAL COURT JUDGMENT IN
PART, AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks
Before Justices Alcala, Hanks and Bland
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
Trial Court Judge: Hon. Russell Austin
Doyle v. Heilman (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Hanks)
(probate matter, claim against estate by friend/caregiver not provided for in care-
recipient's will fails, judgment on quantum meruit claim for personal care services
reversed, element of notice of expectation to be paid for services provided not satisfied
in this case)
Following a bench trial, the court awarded appellee, Leticia G. Heilman, $72,300 in
damages on her claim for quantum meruit against Charlotte Doyle, as executor of the
estate of Alfred Miller. The court also awarded $16,177.50 in attorney’s fees and
additional amounts in the event of an appeal. On appeal, Doyle contends that the trial
court erred by (1) failing to apply Texas Probate Code Section 59A, the statute of frauds,
statute of limitations, and laches; (2) applying the equitable principle of quantum meruit
to allow for a recovery barred by Probate Code Section 59A; (3) finding the evidence to
be legally and factually sufficient to support Heilman’s claim for quantum meruit; (4)
awarding damages not supported by the evidence; (5) overruling Doyle’s Daubert
challenge to the qualifications of Heilman’s expert; and (6) awarding legal fees.
Because we find that Heilman failed to establish a claim for quantum meruit as a
matter of law, we sustain Doyle’s third issue and need not address the others. We
reverse the judgment of the trial court and render judgment that Heilman take nothing.
REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by Justice
Hanks
Before Justices Jennings, Hanks and Bland
01-09-00164-CV Charlotte Doyle, as Executor of The Estate of Alfred Miller, Deceased
v. Leticia G. Heilman
Appeal from Probate Court No 1 of Harris County
Magee v. G & H Towing Co. (pdf) (Tex.App.- Houston [1st Dist.] Nov. 30, 2009)(Nuchia)
(fatal car wreck, negligent entrustment claim)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER
PROCEEDINGS:
Opinion by Justice Nuchia
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00572-CV Cory Wayne Magee, Individually, and Tracey D'ann Mayo, Individually
and as Legal Representative of the Estate of Douglas Emery Magee, Deceased, and
the Estate of Lois Ann Magee, Deceased v. G & H Towing Company Appeal from
Probate Court No 1 of Harris County
Magee v. G & H Towing Co. (pdf) (Tex.App.- Houston [1st Dist.] Nov. 30, 2009)(Nuchia)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00837-CV Cory Wayne Magee, Individually, and Tracey D'ann Mayo, Individually
and as Legal Representative of the Estate of Douglas Emery Magee, Deceased, and
the Estate of Lois Ann Magee, Deceased v. William C. Colson
Appeal from Probate Court No 1 of Harris County
Trial Court Judge: Hon. Russell Austin
Mandamus Writ Granted in Case in Which Probate Court Judge Sought to Be
Recused Denied the Motion Himself, Rather than Referring It for Decision by Another
Judge
In Re Guilbot (Tex.App.- Houston [14th Dist.] Nov. 3, 2009)(Anderson)(motion to recuse
trial judge)
(Judge Wood did not have the option of denying the motion to recuse as untimely).
MOTION OR WRIT GRANTED: Opinion by Justice John Anderson
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00595-CV In Re Miguel Angel Gonzales Guilbot
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Michael James Wood
Roy v. McMaster (Tex.App.- Houston [1st Dist.] Sep. 17, 2009)(Alcala) (no contractual
wills)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Elsa Alcala
Before Judge Wilson, Justices Alcala and Hanks
01-08-00214-CV Mary Rochene Ray v. Ronald Lee McMaster
Appeal from Probate Court No 4 of Harris County
Trial Court Judge: Hon. William McCulloch
Wilson v. Davis (Tex.App. - Houston [1st Dist.] Aug. 14, 2009)(Taft)
(wrongful death DWI intoxicated driver, theories of corporate liability for multi-fatality car
wreck caused by intoxicated individual, respondeat superior, course and scope of
employment, piercing corporate veil, alter ego theory, and others)
REVERSE TC JUDGMENT AND RENDER JUDGMENT:
Opinion by Justice Taft
Before Justices Taft, Keyes and Alcala
01-06-00424-CV Rhonda Wilson and Thomas Stevenson, et al. v. Sam Davis,
Amalgam Western, et al Appeal from Probate Court No 1 of Harris County
Kalina v. Burns (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(Hedges)(probate law:
mental capacity of testator to convey real estate property, undue influence, void deed,
claim of ,jury charge error)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00589-CV Larry Kalina, Diane Kalina and Clint Kalina v. Cody Will Burns,
Individually and as Administrator of the Estate of Karen Dean Burns, Deceased
Appeal from 12th District Court of Madison County
Twyman v. Twyman (Tex.App.- Houston [1st Dist.] Jul. 16, 2009)(Keyes)
(trustee removal, temporary injunction appeal fails, UDJA claim)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Hanks and Bland
01-08-00904-CV Nancy D. Twyman v. William Earl Twyman
Appeal from Probate Court No 1 of Harris County
Trial Court Judge: Hon. Russell Austin
Gammill v. Fettner (Tex.App.- Houston [14th Dist.] Jun. 16, 2009)(Frost)
(probate court district court concurrent jurisdiction, motion for new trial overruled)
AFFIRMED: Opinion by Justice Kem Frost
Before Justices Frost, Brown and Boyce
14-07-00705-CV Cecil Gammill, Jr. and Jaime Martinez v. David A. Fettner, Trustee of
The Gammill Family Trust, John Gammill, Kathleen Bungard, Laura Gammill, Janice
Phillips, and Daniel Gammill
Appeal from 190th District Court of Harris County
Trial Court Judge: Jennifer Elrod Walker
Ray v. McMaster (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Alcala)
(PROBATE LAW: contractual will finding rejected, judgment reversed)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Alcala
Before Judge Wilson, Justices Alcala and Hanks
01-08-00214-CV Mary Rochene Ray v. Ronald Lee McMaster
Appeal from Probate Court No 4 of Harris County
Trial Court Judge: Hon. William McCulloch
Gammill v. Gammill (Tex.App.- Houston [14th Dist.] Jun. 16, 2009)(Frost)(probate court
had jurisdiction)
REVERSED AND REMANDED: Opinion by Justice Frost
Before Justices Frost, Brown and Boyce
14-07-01013-CV Cecil Gammill, Jr. v. John Gammill, Daniel Gammill, Kethleen
Gammill Bungard, Janice Marie Gammill, Laure May Gammill, The Estate of Jackie
Marie Gammill, and the Gammill Family Trust
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Michael James Wood
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)
.
representative of an estate under independent administration as provided in Section
145 of this Code.” TEX. PROB. CODE ANN. § 3(q). The purpose of section 145—and of
independent administration itself—is to free an independent executor from the expense
and control of judicial supervision except where the Probate Code otherwise provides.
Corpus Christi Bank & Trust v. Alice Nat'l Bank, 444 S.W.2d 632, 634–35 (Tex. 1969);
Bunting v. Pearson, 430 S.W.2d 470, 473 (Tex. 1968); Rowland v. Moore, 174 S.W.2d
248, 249–50 (Tex. 1943); Eastland v. Eastland, 273 S.W.3d 815, 821 (Tex. App.—
Houston [14th Dist.] 2008, no pet.).
This “administration” that the executor performs refers to the management of the estate
of a decedent. The estate of a decedent immediately vests in the devisees, legatees,
and heirs at law of the estate, subject to payment of decedent’s debts. TEX. PROB.
CODE ANN. § 37. As trustee of the property of the estate, an executor is subject to the
fiduciary standards applicable to all trustees. Human Soc’y of Austin & Travis Cnty v.
Austin Nat’l Bank, 531 S.W.2d 574, 577 (Tex. 1975). Thus, the duties of an executor to
an estate are those of a trustee. Geeslin v. McElhenney, 788 S.W.2d 683, 684–85 (Tex.
App.—Austin 1990, no writ). Section 230 of the Texas Probate Code codifies the
common law concept that the executor has a fiduciary duty to exercise reasonable care
in the administration of the estate property. TEX. PROB. CODE ANN. § 230 (“The
executor or administrator shall take care of the property of the estate of his testator or
intestate as a prudent man would take of his own property.”); see also RESTATEMENT
(THIRD) OF TRUSTS § 77 (2007) (stating that trustee has duty to administer the trust
as a prudent person would).
An independent executor’s fiduciary duty runs to the estate’s beneficiaries, and it arises
from his status as trustee of the estate’s property. Human Soc’y of Austin, 531 S.W.2d
at 577; see also Huie v. DeShazo, 922 S.W.2d 920, 922–23 (Tex. 1996) (holding that
relationship between executor and estate’s beneficiaries is one that gives rise to
fiduciary duty as matter of law). Thus, the independent executor owes a legal duty of
care to the estate and its beneficiaries. See Frost Nat’l Bank of San Antonio v. Kayton,
526 S.W.2d 654, 660–61 (Tex. Civ. App.—San Antonio 1975, writ ref’d n.r.e.) (holding
that former temporary administratrix of estate owed legal duty of care under Section 230
of Probate Code to estate in negligence action brought by permanent administrator);
see also Lawyers Sur. Corp. v. Snell, 617 S.W.2d 750, 752 (Tex. Civ. App.—Houston
[14th Dist.] 1981, no writ) (holding that former temporary administratrix of estate did not
owe legal duty of care under Section 230 of Probate Code to obtain fire insurance for
estate property in negligence action because it was impossible to obtain such
insurance). In contrast, an executor does not owe a fiduciary duty to persons who claim
an interest in a decedent’s non-testamentary property; to them, she owes no legal duty
of care. See In re Ernst, No. 04-10-00319-CV, 2011 WL 192654 (Tex. App.—San
Antonio Jan. 12, 2011, no pet.) (mem. op.) (holding that executor owed no legal duty
under negligence theory to decedent’s sons, who claimed bank accounts upon her
death under a right of survivorship, but were not beneficiaries of any of decedent’s
property under her will).
RECENT TEXAS SUPREME COURT DECISIONS
ON PROBATE ISSUES
Holmes v. Beatty, No. 07-0784 (Tex. Jun. 26, 2009)(Jefferson)(probate law, right to
survivorship accounts, community property survivorship agreement) from Harris
County; 14th district (14-03-00663-CV, 233 SW3d 475, 08-14-07)
Smith v. O'Donnell, No. 07-0697 (Tex. Jun. 26, 2009)(O'Neill)(PROBATE LAW: legal
malpractice suit by executor of estate against decedent's attorney, non-estate planning)
Kappus v. Kappus, No. 08-0136 (Tex. May 1, 2009)(Willett) (probate case, mere conflict
of interest of
independent executor not enough to warrant removal)
Ditta v. Conte, No. 07-1026 (Tex. Jun. 5, 2009) (Willett) (in action for removal of trustee,
statute of limitations
does not apply; trustee may be removed for cause at any time, based on complaint of
acts or omissions that would otherwise be time-barred, but suit for breach of fiduciary
duty seeking money damages is subject to four-year SoL)
Edwards & Sons, Inc. v. Beyer., No. 05-0580 (Tex. Sep. 28, 2007)(Wainwright)(financial
services, breach of contract, joint account with right of survivorship, Texas Probate
Code, attorney's fees)
Brittingham-Sada de Ayala v. Mackie, No. 04-0160 (Tex. Apr. 21, 2006)(Chief Justice
Wallace Jefferson) (probate matter, ILA, interlocutory appeal not authorized in this case)
Maria Cristina Brittingham-Sada de Ayala (“Ayala”), defendant below, alleged that the
trial court lacked subject matter jurisdiction over this ancillary probate proceeding
involving the estate of her father, a Mexican testator whose will was probated in Mexico.
The trial court denied Ayala’s motion to dismiss, and she pursued an interlocutory
appeal. The court of appeals concluded it had jurisdiction over the appeal, and the
parties now agree. Because we disagree, we reverse the court of appeals’ judgment
and dismiss the appeal.
HOUSTON COURT OF APPEALS CASES
Conte v. Ditta (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Hanks) (on remand from
Texas Supreme Court, which held that “[n]o statute of limitations period applies in a
trustee-removal suit) (action to remove trustee, accounting by trustee, appointment of
successor trustee, modification of trust due to change in circumstances)
AFFIRM TRIAL COURT JUDGMENT IN PART, REVERSE TRIAL COURT JUDGMENT IN
PART, AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS:
Opinion by Justice Hanks
Before Justices Alcala, Hanks and Bland
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
Trial Court Judge: Hon. Russell Austin
Doyle v. Heilman (Tex.App.- Houston [1st Dist.] Mar. 11, 2010)(Hanks)
(probate matter, claim against estate by friend/caregiver not provided for in care-
recipient's will fails, judgment on quantum meruit claim for personal care services
reversed, element of notice of expectation to be paid for services provided not satisfied
in this case)
Following a bench trial, the court awarded appellee, Leticia G. Heilman, $72,300 in
damages on her claim for quantum meruit against Charlotte Doyle, as executor of the
estate of Alfred Miller. The court also awarded $16,177.50 in attorney’s fees and
additional amounts in the event of an appeal. On appeal, Doyle contends that the trial
court erred by (1) failing to apply Texas Probate Code Section 59A, the statute of frauds,
statute of limitations, and laches; (2) applying the equitable principle of quantum meruit
to allow for a recovery barred by Probate Code Section 59A; (3) finding the evidence to
be legally and factually sufficient to support Heilman’s claim for quantum meruit; (4)
awarding damages not supported by the evidence; (5) overruling Doyle’s Daubert
challenge to the qualifications of Heilman’s expert; and (6) awarding legal fees.
Because we find that Heilman failed to establish a claim for quantum meruit as a
matter of law, we sustain Doyle’s third issue and need not address the others. We
reverse the judgment of the trial court and render judgment that Heilman take nothing.
REVERSE TRIAL COURT JUDGMENT AND RENDER JUDGMENT: Opinion by Justice
Hanks
Before Justices Jennings, Hanks and Bland
01-09-00164-CV Charlotte Doyle, as Executor of The Estate of Alfred Miller, Deceased
v. Leticia G. Heilman
Appeal from Probate Court No 1 of Harris County
Magee v. G & H Towing Co. (pdf) (Tex.App.- Houston [1st Dist.] Nov. 30, 2009)(Nuchia)
(fatal car wreck, negligent entrustment claim)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER
PROCEEDINGS:
Opinion by Justice Nuchia
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00572-CV Cory Wayne Magee, Individually, and Tracey D'ann Mayo, Individually
and as Legal Representative of the Estate of Douglas Emery Magee, Deceased, and
the Estate of Lois Ann Magee, Deceased v. G & H Towing Company Appeal from
Probate Court No 1 of Harris County
Magee v. G & H Towing Co. (pdf) (Tex.App.- Houston [1st Dist.] Nov. 30, 2009)(Nuchia)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Chief Justice Radack, Justices Nuchia and Higley
01-07-00837-CV Cory Wayne Magee, Individually, and Tracey D'ann Mayo, Individually
and as Legal Representative of the Estate of Douglas Emery Magee, Deceased, and
the Estate of Lois Ann Magee, Deceased v. William C. Colson
Appeal from Probate Court No 1 of Harris County
Trial Court Judge: Hon. Russell Austin
Mandamus Writ Granted in Case in Which Probate Court Judge Sought to Be
Recused Denied the Motion Himself, Rather than Referring It for Decision by Another
Judge
In Re Guilbot (Tex.App.- Houston [14th Dist.] Nov. 3, 2009)(Anderson)(motion to recuse
trial judge)
(Judge Wood did not have the option of denying the motion to recuse as untimely).
MOTION OR WRIT GRANTED: Opinion by Justice John Anderson
Before Chief Justice Hedges, Justices Anderson and Boyce
14-09-00595-CV In Re Miguel Angel Gonzales Guilbot
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Michael James Wood
Roy v. McMaster (Tex.App.- Houston [1st Dist.] Sep. 17, 2009)(Alcala) (no contractual
wills)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Elsa Alcala
Before Judge Wilson, Justices Alcala and Hanks
01-08-00214-CV Mary Rochene Ray v. Ronald Lee McMaster
Appeal from Probate Court No 4 of Harris County
Trial Court Judge: Hon. William McCulloch
Wilson v. Davis (Tex.App. - Houston [1st Dist.] Aug. 14, 2009)(Taft)
(wrongful death DWI intoxicated driver, theories of corporate liability for multi-fatality car
wreck caused by intoxicated individual, respondeat superior, course and scope of
employment, piercing corporate veil, alter ego theory, and others)
REVERSE TC JUDGMENT AND RENDER JUDGMENT:
Opinion by Justice Taft
Before Justices Taft, Keyes and Alcala
01-06-00424-CV Rhonda Wilson and Thomas Stevenson, et al. v. Sam Davis,
Amalgam Western, et al Appeal from Probate Court No 1 of Harris County
Kalina v. Burns (Tex.App.- Houston [14th Dist.] Jul. 23, 2009)(Hedges)(probate law:
mental capacity of testator to convey real estate property, undue influence, void deed,
claim of ,jury charge error)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00589-CV Larry Kalina, Diane Kalina and Clint Kalina v. Cody Will Burns,
Individually and as Administrator of the Estate of Karen Dean Burns, Deceased
Appeal from 12th District Court of Madison County
Twyman v. Twyman (Tex.App.- Houston [1st Dist.] Jul. 16, 2009)(Keyes)
(trustee removal, temporary injunction appeal fails, UDJA claim)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes
Before Justices Keyes, Hanks and Bland
01-08-00904-CV Nancy D. Twyman v. William Earl Twyman
Appeal from Probate Court No 1 of Harris County
Trial Court Judge: Hon. Russell Austin
Gammill v. Fettner (Tex.App.- Houston [14th Dist.] Jun. 16, 2009)(Frost)
(probate court district court concurrent jurisdiction, motion for new trial overruled)
AFFIRMED: Opinion by Justice Kem Frost
Before Justices Frost, Brown and Boyce
14-07-00705-CV Cecil Gammill, Jr. and Jaime Martinez v. David A. Fettner, Trustee of
The Gammill Family Trust, John Gammill, Kathleen Bungard, Laura Gammill, Janice
Phillips, and Daniel Gammill
Appeal from 190th District Court of Harris County
Trial Court Judge: Jennifer Elrod Walker
Ray v. McMaster (Tex.App.- Houston [1st Dist.] Jun. 18, 2009)(Op. By Alcala)
(PROBATE LAW: contractual will finding rejected, judgment reversed)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Alcala
Before Judge Wilson, Justices Alcala and Hanks
01-08-00214-CV Mary Rochene Ray v. Ronald Lee McMaster
Appeal from Probate Court No 4 of Harris County
Trial Court Judge: Hon. William McCulloch
Gammill v. Gammill (Tex.App.- Houston [14th Dist.] Jun. 16, 2009)(Frost)(probate court
had jurisdiction)
REVERSED AND REMANDED: Opinion by Justice Frost
Before Justices Frost, Brown and Boyce
14-07-01013-CV Cecil Gammill, Jr. v. John Gammill, Daniel Gammill, Kethleen
Gammill Bungard, Janice Marie Gammill, Laure May Gammill, The Estate of Jackie
Marie Gammill, and the Gammill Family Trust
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Michael James Wood
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)
.
