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holding Open Courts issue was forfeited by failure to comply with Rule 38.1
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NO. 01-14-00563-CV
04-26-2016
JERRY VALDEZ, Appellant v. BRUCE ROBERTSON, JR., Appellee
On Appeal from the Probate Court No. 1 Bexar County, Texas
Trial Court Case No. 2008-PC-3026
The Supreme Court of Texas, pursuant to its docket equalization authority, transferred the appeal to this Court. See Misc. Docket No. 14-9121 (Tex. June 23, 2014); see also TEX. GOV'T CODE ANN. § 73.001 (Vernon 2013) (authorizing transfer of cases).
MEMORANDUM OPINION
Appellant, Jerry Valdez ("Valdez"), challenges the probate court's order dismissing his application to probate the will of his mother, Martha Jane Valdez. In three issues, Valdez contends that the probate court erred in dismissing his application and concluding that appellee, Bruce Robertson, Jr., had standing to contest the will.
We affirm.
Background
Valdez's mother died on September 30, 2008 and was survived by twelve of her children. The record shows that Valdez filed an application to probate her 1997 will, in which she named him as the independent executor and one of her daughters, Mary Alice Valdez, as the alternate independent executrix. In the alternative, Valdez sought to admit his mother's 1988 will, in which she also named him as the executor. Valdez listed his mother's other children as heirs, provided their addresses, and requested that "citation issue as required by law to all persons interested in th[e] Estate."
Although the parties have attached copies of several documents to their briefs, we note that documents attached as exhibits or appendices to briefs that are not made part of the appellate record may not be considered on appeal. See Samara v. Samara, 52 S.W.3d 455, 456 n.1 (Tex. App.—Houston [1st Dist.] 2001, pet. denied); Till v. Thomas, 10 S.W.3d 730, 733-34 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
In his application, Valdez noted that his mother "may have owned . . . [f]our parcels of real property" in Bexar County "with an estimated value of $800,000.00." And he explained that "[t]he four properties were deeded by [his mother] to [him] previously, but the Warranty Deeds were set aside by a September 5, 2008 judgment." Valdez also represented that his mother had personal property "with an approximate value of $15,000." He noted, however, that "there was a dispute as to the actual owner of $9,200.00, which was awarded to [his mother] in the September 5, 2008 judgment" and affirmed on appeal.
See In re Guardianship of Martha Jane Valdez, No. 04-08-00886-CV, 2009 WL 2045207, at *5 (Tex. App.—San Antonio July 15, 2009, pet. denied). There, the dispute focused on the validity of the conveyance by Valdez's mother of four parcels of real property to Valdez. Id. at *1. Valdez filed a trespass-to-try-title suit against his mother and one of his sisters, Dorothy Mello. Id. Mello, as guardian of their mother's person and estate, filed a counterclaim seeking title to and possession of the real property, and she asserted a claim for conversion against Valdez and his wife. Id. A jury found in favor of Mello, and the trial court awarded her, as guardian, title to all real property and recovery of $8,474.54 against Valdez and his wife, jointly and severally, for conversion of Valdez's mother's bank accounts. Id. The appellate court affirmed the trial court's judgment on appeal. Id. at *5.
On February 3, 2012, Robertson, who had represented one of Valdez's sisters, Dorothy Mello, in a previous guardianship proceeding pertaining to Valdez's mother and was awarded $114,800.00 for "legal services" provided to "the Guardian and the estate," filed an "Amended Opposition and Contest" to Valdez's application to admit the 1997 will to probate. Robertson argued that the will was "not a lawful and valid will" because Valdez's mother, "on the date of the alleged execution of the purported will, was not of sound mind and lacked testamentary capacity." And the will was executed as a result of undue influence by Valdez.
See Valdez v. Robertson, No. 14-10-00323-CV, 2011 WL 2566277, at *3 (Tex. App.—Houston [14th Dist.] June 30, 2011, no pet.). There, Mello had retained Robertson to represent her in her petition to become her mother's legal guardian, which the guardianship court granted in 2007. Id. at *1. In 2009, Mello filed a "Guardian's Application for Payment of Attorney's Fees and Expenses," which included costs and Robertson's fees associated with Mello's application to become guardian and the litigation in the trespass-to-try-title and conversion actions. Id. After a hearing, the guardianship court, in its "Judgment Approving Guardian's Application for Payment of Attorney's Fees and Expenses," awarded Mello $14,785.00 for "court costs and expenses and attorney's fees paid personally by her." Id. at *2. And it ordered that Robertson, Mello's attorney, recover from the estate of Valdez's mother the sum of $114,800.00 for attorney's fees. Id.
Robertson further asserted that Valdez had "breached his fiduciary duties to [his mother] in connection with her execution of the will and [a] deed executed at the same time." And Valdez was "disqualified and unsuitable to be appointed Independent Executor" because the jury in the trespass-to-try-title litigation had found that Valdez and his wife had "purloined about $8,400 from [his mother's] bank accounts." Robertson requested that "citation be issued to all persons interested in this estate as may be required by law." And he asked the probate court to "deny probate of the purported" 1997 will and the appointment of Valdez as independent executor.
See In re Valdez, 2009 WL 2045207, at *1.
On February 7, 2012, the probate court ordered Valdez, as "Proponent of the purported Will of [his mother], dated [1997], [to] join all the [surviving] children of [his mother], the Decedent, that [were] not parties, as parties to the Will Contest pending under the above cause number."
See TEX. R. CIV. P. 39.
Valdez filed an "objection" to the probate court's order, arguing that there was not a valid will contest pending because Robertson did not have standing to contest the will. Valdez asserted that the guardianship court's judgment, in which Robertson was awarded his attorney's fees, was "set aside" on appeal. Valdez further asserted that he had already filed a "Second Amended Application to Probate the [1997 Will]" and had "served all of the surviving children of [his mother]."
The appellate court held that after a ward's death, a guardianship court has jurisdiction only to settle and close an estate. Robertson, 2011 WL 2566277, at *4. And, there, although Valdez's mother had died in 2008, the guardianship court had granted compensation out of the guardianship estate for expenses incurred from 2007 to 2009. Id. The appellate court further held that, on the record before it, it was unable to determine which expenses the guardianship court had jurisdiction to award, and it remanded for factual determinations regarding the nature of the expenses. Id.
Valdez also filed a "verified response," opposing the probate court's order that he join all of the heirs. He asserted that it was not necessary for a just adjudication to join all of the surviving children to the litigation. He further argued that because the 1997 will is a self-proving will, the probate court was required to admit it into probate.
See TEX. EST. CODE ANN. § 251.101 (Vernon 2014). The Texas Probate Code has been amended and recodified since Valdez filed his application to the probate court. See Act of May 9, 2013, 83rd Leg., R.S., ch. 161, art. 6, 2013 Tex. Gen. Laws 623, 633-57. However, the text of the applicable statutes was not substantively changed. See id. For ease of reference, we will cite to the new Texas Estates Code, which became effective January 1, 2014. See King v. Deutsche Bank Nat'l Trust Co., 472 S.W.3d 848, 852 n.1 (Tex. App.—Houston [1st Dist.] 2015, no pet.)
At a hearing on July 22, 2013, Robertson explained that, contrary to the assertion that Valdez had made in his objection, the appellate court had not set aside the guardianship court's award of attorney's fees to him. Rather, it had remanded the case to the guardianship court for the limited purpose of making fact findings regarding the nature of the legal services that he had provided before and after the death of Valdez's mother. And although the guardianship court on June 19, 2012 had exceeded its authority on remand by entering an order on the validity of Robertson's contract with Mello, it had subsequently vacated its order. At the close of the hearing, the probate court found that Robertson was "still" a "creditor of the estate" and had standing to contest the will.
See supra note 7.
The record in the instant case shows that on remand, the guardianship court on June 19, 2012 held that Robertson had "failed to prove that he had a contract to represent the guardianship estate of [Valdez's mother]," and it denied his claim "against the guardianship estate . . . for attorney's fees." The record further shows, however, that the guardianship court on September 5, 2012, after a hearing, set aside its June 19, 2012 order.
On August 5, 2013, the probate court, after finding that Valdez had failed to comply with its previous order, again ordered that he "join as parties in this case all of the heirs of [his mother] within 30 days." And it warned that in the event Valdez failed to comply, it would dismiss his application.
Nine months later, on May 21, 2014, the probate court issued an order dismissing Valdez's application to admit the 1997 will to probate, specifically finding that "all of the heirs at law of [Valdez's mother] are necessary parties for the complete adjudication of this case" and Valdez had "failed and refused to comply" with its previous orders.
Standing
In his second issue, Valdez argues that Robertson lacked "standing to contest the application to admit the 1997 will into probate" because the guardianship court, in its June 19, 2012 order, concluded that Robertson "did not have a valid claim against the [g]uardianship [e]state."
"A person interested in an estate may, at any time before the court decides an issue in a proceeding, file written opposition regarding the issue. The person is entitled to process for witnesses and evidence, and to be heard on the opposition, as in other suits." TEX. EST. CODE ANN. § 55.001 (Vernon 2014). An "interested person" is an "heir, devisee, spouse, creditor, or any other having a property right in, or claim against an estate being administered," and "anyone interested in the welfare of an incapacitated person, including a minor." Id. § 22.018 (Vernon 2014). The only interest that confers standing to contest a will is a pecuniary one that will be affected by the probate or the defeat of the will. See In re Estate of Stone, 475 S.W.3d 370, 377 (Tex. App.—Waco 2014, pet. denied); see also Logan v. Thomason, 202 S.W.2d 212, 215 (Tex. 1947) ("The interest referred to must be a pecuniary one, held by the party either as an individual or in a representative capacity, which will be affected by the probate or defeat of the will.").
Limiting will contestants to interested persons prevents those with no interest in a decedent's estate from "intermeddling with its administration." In re Estate of Redus, 321 S.W.3d 160, 162 (Tex. App.—Eastland 2010, no pet.). "Thus, when called upon to do so, and in a separate hearing in advance of a trial of the issues affecting the validity of the will, a potential contestant must prove [his] interest in the estate." Id. The contestant has the burden to allege and, "if required, to prove that []he has some legally ascertainable pecuniary interest, real or prospective, absolute or contingent, that will be impaired or benefitted, or in some manner materially affected, by the probate or defeat of the will." In re Estate of Adams, No. 14-12-00064-CV, 2013 WL 84925, at *3 (Tex. App.—Houston [14th Dist.] Jan. 8, 2013, no pet.) (mem. op.).
"Texas courts have long held that an attorney who has rendered services on behalf of a probate estate has, as one of his options to obtain payment, the right to file a claim as any other creditor of the estate." In re Guardianship of Fortenberry, 261 S.W.3d 904, 913 (Tex. App.—Dallas 2008, no pet.). And a court is authorized to order compensation from the available funds of the ward's estate for an attorney who represented an applicant in a guardianship proceeding. See TEX. EST. CODE ANN. § 1155.054 (Vernon 2014).
Here, the record shows that the "guardianship court," in its December 23, 2009 "Judgment Approving Guardian's Application for Payment of Attorney's Fees and Expenses," held that Robertson, "the attorney of record for [Mello] as Guardian," shall recover from the estate of Valdez's mother the sum of $114,800.00 for "legal services" provided "to the Guardian and the estate." The appellate court did reverse the portions of the guardianship court's judgment awarding Robertson his attorney's fees, and it remanded the case for a determination of facts regarding Robertson's meetings with family and the guardianship court's jurisdiction to award such fees. See Valdez v. Robertson, No. 14-10-00323-CV, 2011 WL 2566277, at *3 (Tex. App.—Houston [14th Dist.] June 30, 2011, no pet.). And on remand, the guardianship court, on June 19, 2012, holding that Robertson had "failed to prove that he had a contract to represent the guardianship estate," denied his attorney's fees. However, the record shows that on September 5, 2012, the guardianship court, after a hearing, set aside its June 19, 2012 order. And at a hearing on July 22, 2013, the probate court found that Robertson was "still" a "creditor of the estate" and had standing to contest the will.
It is an appellant's burden to bring forth a record demonstrating that a complained-of ruling of a trial court was erroneous. Bayoud v. Bayoud, 797 S.W.2d 304, 313 (Tex. App.—Dallas 1990, writ denied) ("It is the appealing party's duty to be certain that everything material to his appeal is actually received by the appellate court.").
Accordingly, we hold that Robertson does not lack standing on the ground Valdez asserts.
We overrule Valdez's second issue.
Joinder
In his first issue, Valdez argues that the probate court erred in dismissing, pursuant to Texas Rule of Civil Procedure 39, his application to admit the 1997 will to probate because rule 39 does not apply to will contests and the Estates Code, which governs instead, does not require that all heirs be joined as parties to a will contest. See TEX. EST. CODE ANN. § 51.001 (Vernon 2014) (formerly TEX. PROB. CODE ANN. § 33(a)); TEX. R. CIV. P. 39.
We review a trial court's dismissal based on a defect of parties for an abuse of discretion. Longoria v. Exxon Mobil Corp., 255 S.W.3d 174, 179 (Tex. App.—San Antonio 2008, pet. denied); Miller v. Gann, 822 S.W.2d 283, 286 (Tex. App.—Houston [1st Dist.] 1991, no writ). A trial court has broad discretion in deciding matters of joinder of parties. Longoria, 255 S.W.3d at 179; Ablon v. Campbell, 457 S.W.3d 604, 610 (Tex. App.—Dallas 2015, pet. denied). We review a trial court's conclusions of law de novo to determine whether the trial court drew the correct legal conclusions from the facts. Ablon, 457 S.W.3d at 610. However, an erroneous conclusion of law does not require reversal if the trial court rendered the proper judgment. Id.
The rules of civil procedure apply in probate matters, except where a rule conflicts with a specific provision of the Estates Code. Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812 (Tex. 1983) (applying former Probate Code); Wojcik v. Wesolick, 97 S.W.3d 335, 337 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (same); see also TEX. R. CIV. P. 2.
Rule 39 provides, in pertinent part, as follows:
(a) Persons to be Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. . . .TEX. R. CIV. P. 39(a)-(b) (emphasis added). Thus, if a trial court determines that an absent person falls within the provisions of the rule, it has a duty to effect that person's joinder. See TEX. R. CIV. P. 39(a); Longoria, 255 S.W.3d at 180. If a person required to be joined under subsection (a) cannot be joined, the trial court must decide "whether in equity and in good conscience the action should proceed among the parties before it, or should be dismissed" by considering the factors in subsection (b). See TEX. R. CIV. P. 39; Longoria, 255 S.W.3d at 180.
(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder.
Courts have held that the Estates Code does not require the joinder of all interested persons in a will contest. Wojcik, 97 S.W.3d at 337-38 (construing former Probate Code); Jones v. LaFargue, 758 S.W.2d 320, 323 (Tex. App.—Houston [14th Dist.] 1988, writ denied) (same). "Nor does it generally require service of citation, or even notice." Wojcik, 97 S.W.3d at 337. Section 51.001 provides that service of citation or notice are not required, as follows:
(a) Except as provided by subsection (b), a person is not required to be cited or otherwise given notice except in a situation in which this title expressly provides for citation or the giving of notice.TEX. EST. CODE ANN. § 51.001 (formerly TEX. PROB. CODE ANN. § 33(a)). Further, the Estates Code does not "expressly provide" otherwise that all interested persons must be joined in, or given notice of, a will contest. See id. § 256.204 (Vernon 2014) (providing period for contests) (formerly TEX. PROB. CODE ANN. § 93); Wojcik, 97 S.W.3d at 338 ("Texas is one of a handful of states in this country with a will-contest statute that does not require notice to interested parties."); Jones, 758 S.W.2d at 323 (former Probate Code "does not require that all interested persons be joined in the suit"); but see Kotz v. Kotz, 613 S.W.2d 760, 761 (Tex. Civ. App.—Beaumont 1981, no writ) (holding although Probate Code did not expressly require citation and notice for will contests, notice still required to avoid constitutional concerns). Thus, courts have held that rule 39 "conflicts with the unambiguous language of the Probate Code" and "does not apply" to will contests. See Wojcik, 97 S.W.3d at 338.
(b) If this title does not expressly provide for citation or the issuance or return of notice in a probate matter, the court may require that notice be given. A court that requires that notice be given may prescribe the form and manner of service of the notice and the return of service.
Here, we need not resolve any such conflict because the Estates Code expressly provides that a trial court "may require that notice be given." See TEX. EST. CODE ANN. § 51.001(b) (emphasis added); see also Wojcik, 97 S.W.3d at 337 (holding, under former Probate Code section 33(a), "a probate court has discretion to require notice"). And rule 39 recognizes that a trial court has the discretion to determine "whether in equity and in good conscience the action should proceed among the parties before it, or should be dismissed." See TEX. R. CIV. P. 39; Longoria, 255 S.W.3d at 180. Nothing in the code or the rule prohibits a probate court from requiring that parties be joined. Although the probate court relied on rule 39, we uphold its ruling if it is supported by the record and correct under any theory of law applicable to the case, even if the probate court gave an incorrect reason for its ruling. City of San Antonio v. Aguilar, 696 S.W.2d 648, 653 (Tex. App.—San Antonio 1985, writ ref'd n.r.e.) ("A proper judgment will not be reversed because the trial court made one or more incorrect conclusions of law.").
Valdez notes in his brief that he is the named executor in the 1997 will and the "principal beneficiary of [his mother's] estate." The probate court, in its order dismissing his application to probate the 1997 will, found that "all the heirs at law . . . are necessary parties for the complete adjudication of this case." And Valdez concedes in his "Verified Response Opposing the Court Order" that the probate court "may on its own volition" order the surviving children to be "joined as parties."
Accordingly, we hold that the probate court did not err in ordering the joinder of all of the children of Valdez's mother to his suit. And because Valdez did not join them as ordered, we further hold that the probate court did not err in dismissing his application. See Longoria, 255 S.W.3d at 184 ("When the plaintiff fails to join [persons] after given a reasonable opportunity to do so, the trial court does not abuse its discretion in dismissing the case.").
Valdez, citing various statutes, further argues that the probate court erred in dismissing his application because all of the heirs "were already parties as a matter of law." However, the statutes that he cites do not support his argument. See TEX. EST. CODE ANN. §§ 22.018, 101.001, 201.001 (Vernon 2014) (formerly, TEX. PROB. CODE ANN. § 3(r), 37, 38). Section 22.018 simply defines "interested parties." See id. § 22.018. Section 101.001 provides that an estate devised by a will "vests immediately in the devisees," and section 201.001 governs intestate succession. See id. §§ 101.001, 201.001. Valdez also asserts that all of the other heirs have already been given notice or appeared at some point during the proceedings. However, he does not provide this Court with any citations to the record to support his assertions. See TEX. R. APP. P. 38.1(i). Finally, Valdez asserts, without discussion, that the probate court's dismissal denied him "and his siblings" access to "open courts" and "due process." See TEX. CONST. art. 1, §§ 13, 19. These contentions are not adequately briefed. See TEX. R. APP. P. 38.1(i). Moreover, the record shows that the probate court gave Valdez three opportunities over the course of over two years to join the other heirs before it dismissed his application.
We overrule Valdez's first issue.
Having held that the probate court did not err in dismissing Valdez's application to admit the 1997 will, we do not reach his third issue, in which he argues that the probate court had a "ministerial duty to admit the 1997 will into probate because [it] met the [requirements of the Probate Code] and there was no valid contest to the admission of the [w]ill." See TEX. R. APP. P. 47.1.
Conclusion
We affirm the order of the probate court.
Terry Jennings
Justice Panel consists of Justices Jennings, Higley, and Brown.