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Affirmed in Part, Reversed and Rendered = in Part,=20 and Dismissed in = Part, and=20 Opinion filed July 1, 2008.

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-07-00257-CV

____________

 

IN THE=20 ESTATE OF MARGARET LYNN GAINES, DECEASED

 

 

 

On Appeal from the = County Court of Law No. 1

Brazoria County, = Texas

Trial Court Cause = No. PR029188

 

 

O P I N I=20 O N

Appellants,=20 Veronica Davis and Gelene Gaines, appeal from the trial = court=3Ds orders=20 (1) disqualifying Davis from serving as the independent executor = of=20 Margaret Lynn Gaines=3Ds estate=20 (Athe=20 Estate@), (2)=20 requiring Davis to turn over estate funds to the court=3Ds=20 registry, (3) denying Davis=3Ds Motion=20 to Compel / Motion for Contempt, (4) granting Prosperity Bank=20 (Athe=20 Bank@)=20 attorney=3Ds fees,=20 and (5) denying Davis=3Ds claims=20 for money against the Estate.

In eight=20 issues, appellants argue (1) the trial court improperly = disqualified Davis=20 from serving as the independent executor because no motion to = disqualify=20 or opposition was filed, (2) the trial court erred in requiring = Davis to=20 turn over funds, (3) the trial court erred in denying = Davis=3Ds Motion=20 to Compel / Motion for Contempt, (4) the trial court erred in = awarding the=20 Bank attorney=3Ds fees,=20 and (5) the trial court erred in denying Davis=3Ds=20 claims for money against the Estate.  We affirm in part, = reverse=20 and render in part, and dismiss in part.

Factual=20 and Procedural Background

Margaret=20 Lynn Gaines died on July 28, 2003.  Gaines left a valid, = written will=20 which named Veronica Davis the independent executor of the Estate = and=20 Darrell Green, Gaines=3Ds brother,=20 the trustee of a testamentary trust.  The will also named = Green and=20 his wife the guardians of Gaines=3Ds=20 children.  Davis did not submit an application to probate=20 Gaines=3Ds will for=20 over three years after Gaines=3Ds=20 death.

On October=20 11, 2006, two of Gaines=3Ds children=20 attempted to access bank account records at the Bank because they = believed=20 Green was misappropriating their money.  The Bank advised the = children the information could not be disclosed without a = subpoena. =20 In response, Davis submitted an application to probate = Gaines=3Ds will on=20 October 13, 2006.  On November 9, 2006, before the will was = probated,=20 Davis obtained a subpoena duces tecum on behalf of the Estate = ordering the=20 custodian of records at the Bank to produce bank statements and = records to=20 the trial court by November 30, 2006.  The records requested = were for=20 bank accounts held in the name of Green and his wife for the = benefit of=20 the three Gaines children.  The subpoena was served on the = Bank on=20 November 17, 2006.

The Bank=20 did not produce the records by November 30; however, on December = 7, 2006,=20 Green filed a Motion to Quash the Subpoena Duces Tecum and Motion = for=20 Protection.  Green, as the account holder, argued Davis = failed to=20 comply with section 59.006 of the Texas Finance Code, which is the = exclusive method for compelling discovery of records of a = financial=20 institution.  See Tex. Fin. Code Ann. ' = 59.006=20 (Vernon Supp. 2007).  The following day, on December 8, 2006, = Davis=20 filed a Motion to Compel / Motion for Contempt arguing the Bank = failed to=20 comply with the subpoena by the compliance date.  In her = motion,=20 Davis requested that the trial court compel the production of the=20 documents, hold the Bank in contempt for disobeying the subpoena, = demand=20 production of the records for in camera inspection, sanction the = Bank, and=20 award costs, attorney fees, and any other equitable relief.  = The Bank=20 responded to the motion arguing the subpoena failed to comply with = the=20 requirements of section 59.006 of the Finance Code.  = See=20 id.  According to the Bank, the subpoena required = production=20 of the records prior to the expiration of twenty-four days from = the date=20 of service, the requesting party failed to pay the reasonable = costs for=20 producing the records, and the requesting party failed to obtain = written=20 consent to release the records from the account owner.  = See=20 id. ' = 59.006(b)(1)B(2),=20 (c)(1)B(3).=20

On=20 December 19, 2006, the trial court held a hearing on = Green=3Ds Motion=20 to Quash Subpoena Duces Tecum and Motion for Protection, = Davis=3Ds Motion=20 to Compel / Motion for Contempt, and Davis=3Ds=20 application to probate Gaines=3Ds=20 will.  Ultimately, the trial court granted Green=3Ds Motion=20 to Quash and denied Davis=3Ds Motion=20 to Compel / Motion for Contempt because the trial court determined = Davis=20 issued the subpoena without first being qualified as the = independent=20 executor of the Estate and because Davis failed to comply with = section=20 59.006 of the Finance Code.  The trial court also ordered = Davis to=20 pay the Bank its reasonable and necessary attorney=3Ds fees and=20 research charges.  In addition, the trial court ordered=20 Gaines=3Ds will=20 admitted to probate, but it determined Davis was not suitable to = serve as=20 the independent executor.  Instead, the trial court = determined it was=20 advisable and in the best interest of the Estate to appoint Mary = Peter=20 Cudd to serve as the independent administrator.  The trial = court also=20 ordered Davis to turn over to the court=3Ds registry=20 all of the funds Davis collected on behalf of the Estate and its=20 beneficiaries.

In=20 response to the trial court=3Ds orders,=20 Davis filed a Motion for Rehearing, which she amended twice.  = The=20 motion was overruled by operation of law.  On March 22, 2007, = Davis=20 filed a supersedeas bond to stay further proceedings.  = However, on=20 that same day, Davis also filed two authenticated unsecured claims = for=20 money with the representative of the Estate, one for $7,500.00 and = one for=20 $1,931.59.  Cudd, as the independent administrator of the = Estate,=20 rejected both of Davis=3Ds claims,=20 and on April 24, 2007, the trial court signed orders recognizing=20 Cudd=3Ds=20 rejection of the claims.  This appeal followed.

A.     =20 Did the Trial Court Err in Disqualifying Davis from Serving as the = Independent Executor?

In=20 appellants=3D = first two=20 issues, they argue the trial court erred in disqualifying Davis = from=20 serving as the independent executor because no motion to = disqualify or=20 opposition to her appointment was pending before the trial = court.[1] =20 Appellants argue Green=3Ds attorney=20 sought to have Davis disqualified by a sua sponte oral motion = during the=20 hearing instead of filing a written motion with the trial = court. =20 According to appellants, the trial court lacked the authority to=20 disqualify Davis on the basis of a sua sponte oral motion. =20 Appellants argue these actions constituted an unfair surprise and = a denial=20 of due process.  Appellants then assert that because the = judgment is=20 not supported by the pleadings, it is void.

1.      =20 Standard of Review

A court's=20 ruling on a probate application is generally reviewed under an abuse of discretion standard.  See In re = Guardianship of=20 Bayne, 171 S.W.3d 232, 235 (Tex. App.CDallas=20 2005, pet. denied); see, e.g., In re Estate of Robinson, = 140 S.W.3d=20 801, 807 (Tex. App.CCorpus=20 Christi 2004, pet. dism=3Dd)=20 (reviewing order finding person unsuitable to serve as executor = under an=20 abuse of discretion standard); Olguin v. Jungman, 931 = S.W.2d 607,=20 610 (Tex. App.CSan=20 Antonio 1996, no writ) (reviewing order finding person unsuitable = to serve=20 as executor under an abuse of discretion standard).  The = trial court=20 abuses its discretion if it acts in an arbitrary or unreasonable = manner=20 without reference to any guiding rules or principles. Cire v.=20 Cummings, 134 S.W.3d 835, 838B39 (Tex.=20 2004).  The mere fact a trial judge may decide a matter = within his=20 discretionary authority in a different manner than an appellate = judge in a=20 similar circumstance does not demonstrate an abuse of discretion = has=20 occurred.  Downer v. Aquamarine Operators, Inc., 701 = S.W.2d=20 238, 242 (Tex. 1985).

2.      =20 Applicable Law

If an=20 independent executor named in the will comes forward within the = statutory=20 period for probating a will, offers it for probate, and applies = for=20 letters testamentary, the court has no discretionary power to = refuse to=20 issue letters to the named executor unless he is a minor, an = incompetent,=20 or otherwise disqualified under the provisions of section 78 of = the Texas=20 Probate Code.  Alford v. Alford, 601 S.W.2d 408, 410 = (Tex.=20 Civ. App.CHouston=20 [14th Dist.] 1980, no writ); see Tex. Prob. Code Ann. = ' = 77=20 (Vernon 2003) (ALetters=20 testamentary or of administration shall be granted to persons who = are=20 qualified to act, in the following order:  (a) To the = person=20 named as executor in the will of the deceased . . . .@)=20 (emphasis added).  However, under section 78 the court may = disqualify=20 a person from serving as an executor if the court finds that = person=20 Aunsuitable.@ =20 Tex. Prob. Code Ann. ' = 78(e)=20 (Vernon 2003); see Olguin, 931 S.W.2d at 609 (holding the = provision=20 disqualifying unsuitable persons from serving as executor applies = to the=20 appointment of an independent executor); Alford, 601 S.W.2d = at 410=20 (applying section 78 to qualification of an independent = executor). =20 No comprehensive, discrete explanation exists delineating the = attributes=20 which make someone unsuitable.  Olguin, 931 S.W.2d at = 610;=20 see Boyles v. Gresham, 158 Tex. 158, 161B63, 309=20 S.W.2d 50, 53B54 (1958)=20 (ANeither=20 the Model Code nor the Texas Probate Code purports to define = >unsuitable,=3D = and we=20 shall not attempt here to define it.@). =20 The trial court has broad discretion in determining whether an = individual=20 is Asuitable@ = to serve=20 as an executor.  Kay v. Sandler, 704 S.W.2d 430, 433 = (Tex.=20 App.CHouston=20 [14th Dist.] 1985, writ ref=3Dd=20 n.r.e.).

 

3.      =20 Analysis

Appellants=3D = primary=20 argument is the trial court lacked the authority to disqualify = Davis on=20 the basis of a sua sponte verbal motion by Green=3Ds=20 attorney.  According to appellants, this lack of pleading = constituted=20 an unfair surprise and denial of due process.  However, the = trial=20 court heard evidence bearing on Davis=3Ds=20 qualifications without objection.  Therefore, appellants = cannot=20 complain of the insufficiency of the pleadings for the first time = on=20 appeal.  See Formby v. Bradley, 695 S.W.2d 782, 785 = (Tex.=20 App.CTyler=20 1985, writ ref=3Dd=20 n.r.e.).  When issues not raised by the pleadings are tried = by=20 express or implied consent of the parties, they shall be treated = in all=20 respects as if they had been raised in the pleadings.  Tex. = R. Civ.=20 P. 67.  The doctrine of implied consent applies only where it = appears=20 from the record the issue was actually tried, although not = pleaded. =20 Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 281 (Tex.=20 App.CHouston=20 [14th Dist.] 1999, pet. denied).  After the trial court heard = evidence regarding the Motion to Quash and Motion to Compel / = Motion for=20 Contempt and ruled on those motions, it stated A[t]he=20 court is now moving to the Amended Application to Probate Will and = for=20 Issuance of Letters Testamentary filed by Veronica Davis on = October 16th,=20 2006.  In that connection, let the record reflect that Ms. = Davis is=20 before the Court as well as Mr. Greg Donnell.@ =20 Davis then gave her direct examination testimony.  After = Davis=20 finished, the trial court allowed Gregory Donnell, = Green=3Ds=20 attorney, to cross-examine Davis.  During this = cross-examination, the=20 trial court heard evidence bearing on Davis=3Ds=20 qualifications; however, Davis did not object at any point during = the=20 hearing regarding Green=3Ds failure=20 to file a written motion.  We conclude the issue of = Davis=3Ds=20 qualification to serve as the independent executor of the Estate = was tried=20 by consent when Davis engaged in cross-examination and discussions = with=20 the trial court regarding her qualifications without ever raising = an=20 objection.

Even if=20 appellants had properly objected, we do not agree the trial court = lacked=20 the authority to disqualify Davis without a filed motion or=20 opposition.  Section 178 of the Probate Code requires the = court to=20 grant letters testamentary to the executor appointed in the will = if she is=20 not disqualified.  See Tex. Prob. Code Ann. = ' = 178(a)=20 (Vernon 2003). Also, section 78 provides a person is disqualified = to serve=20 as an executor if the court finds her unsuitable.  Id. = ' = 78. =20 Nothing in these two sections requires the filing of a motion or=20 opposition to disqualify  an applicant before the court can = find a=20 person unsuitable.[2] =20 See id. '' = 78,=20 178(a).  Essentially, the Probate Code requires a court to = issue=20 letters testamentary to qualified applicants, but it does not = require the=20 court to issue letters testamentary to people it determines are=20 disqualified.  In this case, the trial court was not required = to=20 appoint Davis as the independent executor because, under its broad = discretion, it found Davis unsuitable.      To = the=20 extent appellants challenge the sufficiency of the evidence = supporting the=20 trial court=3Ds=20 decision, we conclude the evidence is sufficient.  = Davis=3Ds=20 testimony at the hearing showed Davis failed to probate the will = for over=20 three years, which the court stated potentially cost the Estate = money;[3]=20 Davis sought a subpoena on behalf of the Estate before seeking = appointment=20 as the independent executor; Davis collected and distributed money = from=20 the Estate without proper authority; and Davis considered the = interests of=20 one beneficiary over the interests of the Estate.[4] =20 Considering this evidence, we conclude the trial court did not = abuse its=20 discretion in finding Davis unsuitable to serve as the independent = executor of the Estate.  See Spies v. Milner, 928 = S.W.2d 317,=20 319 (Tex. App.CFort Worth=20 1996, no writ) (finding the trial court did not abuse its = discretion in=20 finding appellant unsuitable to serve as executor because the = evidence=20 showed appellant had difficulty dealing with professionals, she = was a=20 difficult witness and changed her answers when pressured, she = admitted=20 taking money out of the decedent=3Ds account=20 while the decedent was still alive, and she did not get along with = the=20 other relatives involved in the probate proceeding).  We = overrule=20 appellants=3D = first two=20 issues.

B.     =20 Did the Trial Court Err in Requiring Davis to Turn Over Funds to = the=20 Court=3Ds=20 Registry?

In their=20 third issue, appellants argue the trial court, which is a county = court,=20 lacked jurisdiction to make rulings regarding any trust = matters. =20 According to appellants, the trial court erred in ordering Davis = to place=20 the funds in the registry of the county court because all matters=20 pertaining to trust assets and property should be determined by = the=20 district court.[5] =20    =20 1.         =20 Analysis

During the=20 hearing, Davis admitted to collecting and distributing funds on = behalf of=20 the Estate and its beneficiaries even though she had not been = appointed as=20 the independent executor.  According to Davis, she maintained = a=20 client trust account which she used to collect and distribute the=20 funds.  Davis told the trial court she felt she had a duty to = protect=20 the funds from mismanagement and misappropriation by Green, the = appointed=20 trustee.  After hearing this evidence, the trial court, sua = sponte,=20 ordered Davis to turn over the assets to the county clerk of = Brazoria=20 County.  In the order, the trial court stated Davis shall = turn over=20 Aall funds=20 collected by Veronica Davis by or on behalf of this Estate or the=20 beneficiaries of this Estate and currently held in the Trust = Account of=20 Veronica Davis.@

Appellants=20 claim the trial court erred because section 115.001 of the Texas = Property=20 Code grants exclusive jurisdiction to the district court for all=20 proceedings concerning trusts.  See Tex. Prop. Code = Ann.=20 ' = 115.001=20 (Vernon 2007), amended by Tex. Prop. Code Ann.' = 115.001=20 (Vernon Supp. 2007).[6] =20 However, this case was not a proceeding concerning trusts.  = The=20 proceeding and decision of the trial court dealt with the = administration=20 of the Estate.  Appellants have confused estate assets with = trust=20 assets.  Here, the trial court ordered all estate assets = collected by=20 Davis on behalf of the Estate and its beneficiaries turned over to = the=20 county clerk.  The county court, in this case, had = jurisdiction to=20 hear all applications, petitions, and motions regarding probate = and=20 administration.  Tex. Prob. Code Ann. ' = 5(c)=20 (Vernon Supp. 2007).  Under this jurisdiction, the county = court had=20 the power to Ahear all=20 matters incident to an estate.@ =20 Id. ' = 5(f).  Matters Aincident=20 to an estate@ = include=20 Aall=20 matters relating to the settlement, partition, and distribution of = an=20 estate.@ =20 Id. ' = 5A(a)=20 (Vernon Supp. 2007).  We conclude the county court had = jurisdiction=20 to order Davis to turn over the Estate assets she was improperly=20 maintaining under its power to hear all matters incident to an=20 estate.  See id. '' = 5(c),=20 (f), 5A(a).  Accordingly, we overrule appellants=3D = third=20 issue.  

C.     =20 Did the Trial Court Err in Denying Davis=3Ds Motion=20 to Compel / Motion for Contempt?

We=20 construe appellants=3D = fourth=20 and fifth issues as challenges to the trial court=3Ds order=20 denying Davis=3Ds Motion=20 to Compel / Motion for Contempt.  Davis=3Ds motion=20 sought to compel the Bank to produce records for bank accounts = held in the=20 name of Green and his wife for the benefit of the three Gaines=20 children.  The trial court denied Davis=3Ds motion,=20 finding Davis issued the subpoena on behalf of the Gaines children = without=20 having first qualified as the independent executor of the Estate = and=20 finding Davis failed to comply with section 59.006(b) of the = Finance=20 Code.    

1.      =20 Was Davis Allowed to Seek a Subpoena Without First Being Appointed = the=20 Independent Executor of the Estate?

In their=20 fourth issue, appellants argue the trial court erred in = determining Davis=20 was without authority to seek the subpoena.  According to = appellants,=20 Davis sought the subpoena as Gelene Gaines=3Ds lawyer=20 and not as the executor of the Estate.  Appellants argue = Gelene was=20 an Ainterested=20 person@ = and=20 entitled to legal representation.  Appellants contend Gelene = retained=20 Davis to represent her in the probate matter and in matters = incident to=20 the Estate; therefore, Davis was entitled to seek the = subpoena.

a.      =20 Standard of Review

We review=20 the trial court's rulings on discovery matters for an abuse of=20 discretion.  See In re CSX Corp., 124 S.W.3d 149, 152 = (Tex.=20 2003).  The trial court abuses its discretion if it acts in = an=20 arbitrary or unreasonable manner without reference to any guiding = rules or=20 principles. Cire, 134 S.W.3d at 838B39.

b.      =20 Analysis

The burden=20 is on appellants to present a record = sufficient to demonstrate an abuse of discretion. Tex. R. App. P. 50(d); Wheelis v. = First=20 City, Tex.-Ne., 853 S.W.2d 81, 82 (Tex. App.CHouston=20 [14th Dist.] 1993, writ denied).  Appellants failed to carry = their=20 burden.  Nothing in the record supports = appellants=3D = argument=20 that Davis was acting as Gelene=3Ds lawyer=20 instead of as the executor of the Estate when she obtained the=20 subpoena.  There is no evidence in the record indicating = Gelene hired=20 Davis.  Appellants argue that, under Texas Rule of Civil = Procedure 8,=20 upon signing the initial pleading, an attorney is the attorney in = charge,=20 unless another attorney is designated therein.  Tex. R. Civ. = P.=20 8.  While this may be true, Davis=3Ds=20 signature on the Application to Probate the Will and for Issuance = of=20 Letters Testamentary fails to prove she was acting as = Gelene=3Ds=20 lawyer.  Furthermore, the trial court filed the subpoena = under the=20 same cause number as the Application to Probate the Will and for = Issuance=20 of Letters Testamentary.  Without evidence to prove = otherwise,=20 appellants fail to demonstrate the trial court abused its = discretion when=20 it found Davis did not have authority to issue the subpoena and = denied=20 Davis=3Ds Motion=20 to Compel / Motion for Contempt.[7] =20 See Wheelis, 853 S.W.2d at 82 (holding appellants failed to = meet=20 burden of presenting a record sufficient to demonstrate an abuse = of=20 discretion).  Accordingly, we conclude the trial court did = not abuse=20 its discretion.  We overrule appellants=3D = fourth=20 issue.

2.      =20 Did Davis Properly Comply with Section 59.006 of the Finance Code? = [8]

In their=20 fifth issue, appellants argue Green is not the true Bank customer = in this=20 case, therefore, Davis was not required to give him notice under = section=20 59.006(b) of the Finance Code.  Appellants argue the more = relevant=20 issue is who owns the funds in the account, not who owns the = account=20 itself.  According to appellants, either the federal = government or=20 the Gaines children own the funds in the account; therefore, the = trial=20 court abused its discretion in determining notice and consent was=20 required.  Further, appellants argue the trial court abused = its=20 discretion in failing to examine the records in camera, as = requested.[9]

a.      =20 Analysis

Having=20 determined the trial court did not abuse its discretion in denying = the=20 Motion to Compel / Motion for Contempt based on Davis=3Ds lack of=20 authority to seek the subpoena, we need not address whether Davis = properly=20 complied with the Finance Code or whether the trial court abused = its=20 discretion in failing to examine the records in camera.  = See=20 Tex. R. App. P. 47.1.  We overrule appellants=3D = fifth=20 issue.

D.     =20 Was the Bank Entitled to Attorney=3Ds=20 Fees?

In their=20 sixth issue, appellants argue the trial court abused its = discretion in=20 awarding the Bank attorney=3Ds fees=20 because the Bank failed to request attorney=3Ds fees in=20 its response to appellant=3Ds Motion=20 to Compel / Motion for Contempt.  Appellants allege the=20 Bank=3Ds failure=20 to plead for attorney=3Ds fees=20 renders the award void because the judgment is not supported by = the=20 pleadings.  Appellants also argue the trial court abused its=20 discretion in making Davis personally liable for the = attorney=3Ds=20 fees.

1.      =20 Analysis

A judgment=20 must be supported by the pleadings and, if not so supported, it is = void.  City of Fort Worth v. Gause, 129 Tex. 25, 29, = 101=20 S.W.2d 221, 223 (1937).  A party may not be granted relief in = the=20 absence of pleadings to support that relief.  Stoner v.=20 Thompson, 578 S.W.2d 679, 682B83 (Tex.=20 1979).  A judgment, absent issues tried by consent, must = conform to=20 the pleadings.  Tex. R. Civ. P. 301; State v. Estate of = Brown,=20 802 S.W.2d 898, 900 (Tex. App.CSan=20 Antonio 1991, no writ).  Absent a mandatory statute, a trial=20 court=3Ds=20 jurisdiction to render a judgment for attorney=3Ds fees=20 must be invoked by pleadings, and a judgment not supported by = pleadings=20 requesting an award of attorney=3Ds fees is=20 a nullity.  Estate of Brown, 802 S.W.2d at=20 900.

In this=20 case, the trial court=3Ds order=20 denying Davis=3Ds Motion=20 to Compel / Motion for Contempt also included an award to the Bank = for its=20 reasonable and necessary attorney=3Ds fees and=20 research charges.  The Bank, however, did not request=20 attorney=3Ds fees in=20 its response to Davis=3Ds=20 motion.  Instead, the Bank orally announced during the = hearing it was=20 requesting attorney=3Ds=20 fees.  The Bank could not provide the amount of fees it was = seeking=20 during the hearing, but it informed the trial court it would send = the=20 necessary information to all of the parties later that day.  = The=20 trial court then orally announced it was granting the Bank its=20 attorney=3Ds=20 fees.  The trial court also stated Davis was to be held = personally=20 liable for the fees.  The next day, the Bank filed an = affidavit in=20 support of its request for attorney=3Ds=20 fees.

The Bank=20 argues appellants waived this issue because Davis did not object = during=20 the hearing or otherwise respond to the order; therefore, they = cannot=20 raise it for the first time on appeal.  However, in their = Motion for=20 Rehearing, appellants argued the award was improper due to a lack = of=20 pleading.  Thus, appellants have properly preserved this = issue for=20 appeal.  The Bank also argues the award was proper under = Texas Rules=20 of Civil Procedure 13 and 215.2(b)(8).  We disagree with this = argument as well.  Both rules cited by the Bank provide a = method in=20 which the trial court can impose sanctions on an attorney. =20 See Tex. R. Civ. P. 13, 215.2(b)(8).  In this case, = the trial=20 court=3Ds order=20 does not mention either of these rules, nor does it state it is = imposing=20 sanctions on Davis.  Instead, the order states it is awarding = the=20 Bank its Areasonable=20 and necessary attorney=3Ds fees and=20 research charges, pursuant to Texas Finance Code, Section=20 [59.006(b)(2)].@ =20 Additionally, both rule 13 and 215.2(b)(8) allow for the = imposition of=20 sanctions Aafter=20 notice and a hearing.@ =20 Tex. R. Civ. P. 13, 215.2(b)(8).  Davis never received notice = or a=20 hearing on the possibility of sanctions, therefore, the Bank = cannot rely=20 on these rules as support for the award.

Because=20 the Bank failed to invoke the trial court=3Ds=20 jurisdiction to render a judgment for attorney=3Ds fees by=20 failing to plead the issue, we hold the judgment of the trial = court=20 insofar as it awarded attorney=3Ds fees to=20 the Bank is void.  Since we reverse the judgment of the trial = court=20 on the grounds that there are no pleadings to support the award of = attorney=3Ds fees, we=20 need not consider appellants=3D = argument=20 that the trial court erred in holding Davis personally = liable. =20 See Tex. R. App. P. 47.1.  Appellants=3D = sixth=20 issue is sustained. 

E.     =20 Were the Attorney=3Ds Fees=20 Excessive?

In their=20 seventh issue, appellants argue that, if we determine the award of = attorney=3Ds fees was=20 not void, the award was excessive and, therefore, constituted an = abuse of=20 discretion.  Since we reverse the award of = attorney=3Ds fees, we=20 need not consider appellants=3D = seventh=20 issue.  See id.

F.      =20 Did the Independent Administrator and the Trial Court Err in = Denying=20 Davis=3Ds=20 Claims Against the Estate?

In=20 their eighth issue, appellants argue Cudd and the trial court = lacked the=20 authority to reject Davis=3Ds=20 claims against the Estate.  According to appellants, the = rejection of=20 Davis=3Ds=20 claims contravenes section 243 of the Probate Code.  = See Tex.=20 Prob. Code Ann. '=20 243 (Vernon 2003).[10] =20

1.      =20 Analysis

On=20 March 22, 2007, Davis filed two authenticated unsecured claims for = money=20 with Cudd requesting payment.  Davis claimed the Estate owed = her=20 $7,500 for legal work she performed both before and after Gaines = died and=20 $1,931.59 for repairs and maintenance performed on=20 Gaines=3Ds=20 house before Gaines died.  On April 23, 2007, Cudd filed a = memorandum=20 with the trial court rejecting both of Davis=3Ds=20 claims.  The following day, the trial court entered two = orders=20 recognizing Cudd=3Ds=20 disallowance.  Appellants now attempt to appeal from these = orders=20 entered by the trial court.

When=20 a person has a claim for money against an estate, the Probate Code = sets=20 out the  steps to be taken in order to collect.  Under = section=20 314, a person who has a claim for money against an estate must = first=20 present that claim to the representative of the = estate.[11] =20 Id. '=20 314 (Vernon 2003).  The representative has thirty days after = the=20 claim is presented to reject or accept it.  Id. = '=20 309 (Vernon 2003).  If the representative fails to timely = accept or=20 reject the claim, the claim is considered rejected.  = Id.=20 '=20 310 (Vernon 2003).  When a claim is rejected, the claimant = must file=20 suit in the court of original probate jurisdiction within ninety = days of=20 the rejection, or the claim shall be barred.  Id. = '=20 313 (Vernon 2003).  In this case, Davis presented her claims = for=20 money to the representative, which were rejected.  However, = after=20 reviewing the record, it appears Davis failed to file suit in the = court of=20 original probate jurisdiction after the rejection of her claims as = required by section 313.[12] =20 See id.  Instead, appellants are attempting to appeal = from the=20 orders signed by the trial court recognizing Cudd=3Ds=20 rejection of Davis=3Ds=20 claims.

For=20 a judgment to be a final, appealable judgment in a probate = proceeding, it=20 is not necessary that the judgment fully and finally dispose of = the entire=20 probate proceeding.  Crowson v. Wakeham, 897 S.W.2d = 779, 781=20 (Tex. 1995).  Nevertheless, the judgment Amust=20 be one which finally disposes of and is conclusive of the issue or = controverted question for which that particular part of the = proceeding is=20 brought.@ =20 Id.  In this case, the orders appellants attempt to = appeal=20 from are merely the trial court=3Ds=20 recognition of Cudd=3Ds=20 rejection of the claims.  The Probate Code provided Davis = further=20 recourse after the rejection of her claims by Cudd.  See = Tex.=20 Prob. Code Ann. '=20 313.  Therefore, the orders did not finally dispose of and = were not=20 conclusive on the controverted issue; instead, they merely = informed Davis=20 of the rejection and put her on notice that she had ninety days to = file=20 suit.  See id.; Crowson, 897 S.W.2d at 781. = Thus, the=20 orders were interlocutory, and thus we lack jurisdiction over this = portion=20 of the appeal.[13] =20 See Crowson, 897 S.W.2d at 783.

Conclusion

Having=20 considered all of appellants=3D = issues, we=20 affirm the trial court=3Ds = order=20 disqualifying Davis from serving as the independent executor of = the=20 Estate; we affirm the trial court=3Ds = ancillary=20 order requiring Davis to turn over estate funds to the = court=3Ds = registry; and=20 we affirm the trial court=3Ds = order denying=20 Davis=3Ds = Motion to=20 Compel / Motion for Contempt.  We reverse that portion of the = trial=20 court=3Ds = order=20 awarding the Bank attorney=3Ds = fees, and we=20 render judgment the Bank take nothing.  Further, we dismiss = for want=20 of jurisdiction the appellants=3D = interlocutory=20 appeal from the trial court=3Ds = orders=20 recognizing the representative=3Ds = rejection of=20 Davis=3Ds = claims=20 against the Estate.

 

 

 

 

/s/     =20 John S. Anderson

Justice

 

Judgment=20 rendered and Opinion filed July 1, 2008.

Panel = consists=20 of Justices Yates, Anderson, and Brown.


[1]  Appellants=3D first issue asks whether the trial = court can=20 disqualify Davis without an opposing motion pending before = it.  Their=20 second issue asks whether the trial court can disqualify Davis in = order to=20 circumvent no opposition being filed.  We conclude these two = issues=20 both challenge the trial court=3Ds ability to disqualify Davis as the = independent=20 executor without a written motion seeking such relief; therefore, = we will=20 address the two issues together.

[2]  Appellants argue section 10 of = the Probate=20 Code requires any opposition to Davis=3Ds appointment as an executor to be in = writing and=20 filed with the court.  We disagree.  Section 10 provides = A[a]ny person interested in an estate = may at=20 any time before any issue . . . file opposition.@  Tex. Prob. Code Ann. ' 10 (Vernon 2003) (emphasis = added).  This=20 section neither requires an opposition to be filed nor limits the = trial=20 court=3Ds discretion to determine an = applicant=3Ds suitability.  Appellants also = cite =20 In re Estate of Robinson, 140 S.W.3d 801 (Tex. = App.CCorpus Christi 2004, pet. = dism=3Dd), and argue when an applicant is among = those=20 named in the Probate Code as a person entitled to priority, the = party=20 opposing the appointment bears the burden of establishing the=20 applicant=3Ds disqualifications.  However, = determining=20 which party bears the burden of proof is not the same issue as = whether or=20 not a party opponent must file a written opposition with the trial = court.  Appellants have failed to cite any cases or statutes = which=20 require the filing of a written motion or opposition before the = trial=20 court can determine whether an applicant is qualified to serve as = an=20 executor.

[3]  The trial court stated that had = Davis=20 probated the will earlier, the trial court could have seen to it = the=20 children=3Ds money was properly invested through = the trustee=20 in a proper account.

[4]  Davis testified one of the = reasons she did=20 not probate the will earlier was because Gelene, one of the = beneficiaries,=20 requested Davis delay probating the will.  The trial court = stated=20 Davis acted improperly because she followed the desires of a = beneficiary=20 over the desires of Gaines, as expressed in her = will.

[5]  Under this issue, appellants also = argue the=20 trial court ignored the fact Davis was to manage these particular = funds=20 rather than Green, and they argue the transcript inaccurately = reflects=20 what was said during the hearing.  Because appellants failed = to raise=20 these objections with the trial court and failed to present these=20 arguments in their Motion for Rehearing, they have not preserved=20 error.  See Tex. R. App. P. 33.1(a).  = We address=20 appellants=3D jurisdictional = complaint=20 because questions of jurisdiction cannot be waived and may be = raised for=20 the first time on appeal. Prairie View A & M Univ. v. = Brooks,=20 180 S.W.3d 694, 702 (Tex. App.CHouston [14th = Dist.] 2005, no=20 pet.).

[6]  The amended version of section = 115.001,=20 found in the 2007 supplement, became effective after this suit was = filed;=20 therefore, it is not applicable to this case.

[7]  We also find = appellants=3D argument that Davis was acting as=20 Gelene=3Ds lawyer, while also having filed an = application=20 to be appointed the independent executor of the Estate, could = potentially=20 lead to serious conflicts of interest.

[8]  Appellants=3D heading for their fifth issue states = AWhether Green has a Right to Fail to = Disclose the=20 Banking Information,@ but their argument really centers = around whether=20 Davis properly complied with the Finance Code and whether the = trial court=20 erred in denying Davis=3Ds motion.

[9]  Appellants also cite to the = portion of the=20 statute that states this section Adoes not create a right of privacy in a=20 record.@  Tex. Fin. Code Ann. ' 59.006(a).  While appellants = correctly cite=20 this portion of the statute, we fail to see how it affects the = trial=20 court=3Ds decision.  Whether or not Green = has a right=20 of privacy in the records is irrelevant to whether or not Davis = properly=20 followed the notice requirements in the statute.

[10]  Appellants argue in the = alternative that=20 the filing of the supersedeas bond stayed all proceedings; = therefore, all=20 matters filed and orders entered after the posting of the bond = should be=20 set aside and vacated.  However, we conclude appellants = waived this=20 argument because Davis is the one who filed the claims against the = Estate=20 despite the supersedeas bond.

[11]  ARepresentative@ is defined as an Aexecutor, independent executor, = administrator,=20 independent administrator, temporary administrator, together with = their=20 successors.  The inclusion of independent executors herein = shall not=20 be held to subject such representatives to control of the courts = in=20 probate matters with respect to settlement of estates except as = expressly=20 provided by law.@  Tex. Prob. Code Ann. ' 3(aa) (Vernon 2003).  Despite the = fact an=20 independent executor falls within the definition of = representative, the=20 Texas Supreme Court held sections 309, 310, and 313 are not = applicable to=20 an independent executor; however, in this case, the court = determined a=20 necessity existed for the administration of the estate and = appointed Cudd=20 as the independent administrator.  See Bunting v. = Pearson, 430=20 S.W.2d 470, 473 (Tex. 1968) (holding the sections are not = applicable to an=20 independent executor) (emphasis added). Therefore, we find = the=20 procedural requirements in sections 309, 310, and 313 are still = applicable=20 to an independent administrator.

[12]  To file suit, as required by = section 313,=20 the claimant must file a pleading alleging the presentation of the = claim=20 and rejection of such claim and show the suit was filed within the = ninety-day time period.  Jaye v. Wheat, 130 S.W.2d = 1081, 1084=20 (Tex. Civ. App.CEastland 1939, no writ).  There is = no=20 evidence in the record Davis filed a proper pleading with the = trial=20 court.   

[13]  We must inquire into our own jurisdiction, even if it is necessary=20 to do so sua=20 sponte.  George v. Phillips = Petroleum Co.,=20 976 S.W.2d 363, 364 (Tex. App.CHouston [14th = Dist.] 1998, no=20 = pet.).

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