Kesha Latrice Jenkins v. State ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00133-CR

Kesha Latrice Jenkins,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 05-01970-CRF-361

ABATEMENT ORDER

          Kesha Latrice Jenkins was convicted of robbery and theft in June of 2005.  The Court of Criminal Appeals granted Jenkins an out-of-time appeal pursuant to her application for writ of habeas corpus.  Counsel for Jenkins then timely filed a notice of appeal for Jenkins.

          Counsel now files a motion to withdraw as counsel for Jenkins and attaches a letter from Jenkins in which Jenkins indicates she has fired counsel.  Jenkins expresses displeasure with counsel’s decision to file a notice of appeal.

          This case is abated to the trial court to hold a hearing within 30 days from the date of this order to consider counsel’s motion to withdraw and the appointment of new counsel for Jenkins.  If Jenkins wants to withdraw her notice of appeal, she must personally sign the withdrawal or affirmatively state on the record that she no longer wishes to pursue her appeal.  See Hendrix v. State, 86 S.W.3d 762, 763-64 (Tex. App.—Waco 2002, no pet.); Spurlock v. State, No. 10-05-00238-CR, 2006 Tex. App. LEXIS 1987 (Tex. App.—Waco March 15, 2006, no pet.) (mem. op.); Tex. R. App. P. 42.2(a).

          Supplemental Clerk’s and Reporter’s Records are ordered to be filed within 45 days from the date of this order.

                                                                   PER CURIAM

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Appeal abated

Order issued and filed July 12, 2006

Do not publish

dependent executor; and (4) the district court erred in denying Krumnow’s plea to the jurisdiction.

BACKGROUND

Phillip died testate in 2002 leaving a Last Will and Testament (“Will”) executed in 1993 and the inter-vivos Trust that had been established in 1993.  Krumnow, the named independent executor in the will and the trustee of the existing Trust, commenced a probate action in the county court of Falls County, Texas.  The county court signed an Order admitting the Will to probate and granted Krumnow letters testamentary.  The Will provided that upon Phillip’s death, all of his property would immediately pass to the Trust except for personal items bequeathed to Phillip’s surviving spouse, Pamela Beth Colley Krumnow (“Pamela”).

After the Will was admitted to probate, Pamela and Phillip’s two daughters, Bettie Lanelle Mendenhall (“Bettie”) and Norma Cora Withem (“Norma”), filed an application to remove Krumnow as independent executor and trustee and for appointment of a successor independent executor and successor trustee.  Thereafter, the county court issued a transfer order to the district court under Probate Code section 5(b).  Tex. Prob. Code Ann. § 5(b) (West Pamphlet 2002).

On February 12, 2003, after the case was docketed in the district court, Krumnow filed an original counter-claim (petition) in the district court asking the court to interpret and construe the Trust.  His petition alleges that the district court has jurisdiction over the probate estate and the Trust.  He claims that Pamela, Bettie, and Norma are not cooperating with him as executor and trustee in creating an accounting of property belonging to the respective probate and trust estates.  He requests (a) damages, (b) return and an accounting of all property belonging to the probate and trust estates, (c) an order that Pamela vacate the residence that she claims as a homestead, (d) attorney’s fees, (e) interest, and (f) costs.

On March 17, 2003, the district court denied the application to remove Krumnow as independent executor and trustee and confirmed his appointment as independent executor and trustee.  On March 27, Pamela filed a motion to return property, for injunctive relief, and for sanctions against Krumnow.  In this motion, Pamela specifically sought removal of Krumnow as executor and appointment of a successor executor.  On April 17, the district court sent a letter appointing Stephen Boykin as successor independent executor.  On April 25, Norma and Bettie filed an original petition for partition.  On May 14, the court signed the Order removing Krumnow as independent executor and appointing Stephen Boykin as successor executor.

On June 12, Krumnow filed a motion to set aside and vacate the order signed May 14, 2003.  On April 30, 2004, the court sent notice to the attorneys for all interested parties of a hearing scheduled for May 25 for all “matters affecting the Krumnow estate and trust” including “appoint a receiver and order the property sold.”  On May 20, Krumnow filed a plea to the jurisdiction.  The district court held a hearing on these and other motions on May 25.  A trial amendment regarding appointment of a receiver was filed at the hearing, and Krumnow objected.  On June 2, the district court signed an order (1) appointing Dona Harris as receiver and ordering him to sell all of the named real estate; (2) vacating the deed of trust lien and security interest Krumnow had entered into as trustee; (3) denying Krumnow’s motion to set aside the May 14, 2003, order and confirming Stephen Boykin as successor executor; and (4) denying Krumnow’s plea to the jurisdiction.  Krumnow now appeals from this Order.  Appellees include Pamela, Bettie, Norma, Lott State Bank (a creditor), Boykin, and Harris.

JURISDICTION

We must inquire into our own jurisdiction, even if it is necessary to do so sua sponte.  Normand v. Fox, 940 S.W.2d 401, 402 (Tex. App.—Waco 1997, no writ).  The jurisdiction of the district court, which affects our jurisdiction, has been disputed since the county court transferred the contested matter to the district court.  We will address the district court’s jurisdiction over the probate estate and over the trust estate and then review our jurisdiction of the interlocutory appeals.

Jurisdiction of the District Court

The district court had two separate proceedings pending in a single cause number:  the probate matter and the trust matter.

Probate Estate

The constitutional county court’s authority to transfer a case to a district court includes only the transfer of a “contested matter.”  Tex. Prob. Code Ann.  § 5(b) (West Pamphlet 2002).[1] The petition filed in the county court sought removal of Krumnow as both executor of the estate and trustee of the Trust.  However, the county court had no jurisdiction over any aspect of the Trust.  Tex. Prop. Code Ann. § 115.001(a) (Vernon Supp. 2004-05) (district court has exclusive jurisdiction over trust proceedings).  Thus, the “contested matter” before the county court, eligible for transfer, was whether to remove Krumnow as the independent executor.  Tex. Prob. Code Ann. §§ 5(b), 222 (West Pamphlet 2002). Although the petition also sought appointment of a successor representative for the estate, that issue could not come before the county court or become a contested matter until a remand of the district court’s determination of the petition to remove the existing executor.  Id. § 220 (West Pamphlet 2002). Thus, we find that with respect to the probate proceeding, the district court had authority to hear and determine only whether Krumnow should be removed as independent executor.

Trust Estate

Krumnow believes that the district court did not have jurisdiction over any matters regarding the Trust because it is an inter vivos trust.  He argues that the Trust is not subject to the probate jurisdiction of the district court, which is limited to contested matters regarding the probate administration.  However, we find that the petition Krumnow filed on February 12, 2003, invoked the jurisdiction of the district court over all Trust matters after February 12.  See Tex. Prop. Code Ann. § 115.001(a).[2] Thus, we may have jurisdiction to review issues one and two depending on a review of our jurisdiction with respect to interlocutory appeals.

Jurisdiction of this Court

Generally, we have appellate jurisdiction over an interlocutory appeal only when expressly provided by statute.  Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex. 1998) (per curiam); Chase Manhattan Bank v. Bowles, 52 S.W.3d 871, 878 (Tex. App.—Waco 2001, no pet.).  Jurisdiction to review an interlocutory order is either specified in a particular statute or under the general interlocutory appeal provision in the Civil Practice and Remedies Code.  Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (Vernon Supp. 2004-05).

Issue one: Receiver

An interlocutory appeal is permitted from an order appointing a receiver.  Id. § 51.014(a)(1).  Thus, we have jurisdiction to review the June 2, 2004, order with respect to the appointment of the receiver (issue one).

Issue two: Deed of trust lien and security interest

Krumnow, as the trustee, executed a deed of trust lien on trust property to secure payment of legal fees.  Krumnow has not asserted the applicability of any statutory provision permitting an interlocutory appeal under these facts.  We find that the vacating of this trustee action by the district court does not fall within the parameters for interlocutory review under Section 51.014 of the Civil Practice and Remedies Code.  Id. § 51.014(a).  Thus, we do not have jurisdiction to review the June 2, 2004, order with respect to the vacating of the deed of trust lien.  We dismiss issue two.

Issue four: Plea to the Jurisdiction

An interlocutory appeal from an order denying a plea to the jurisdiction is available by statute only to governmental agencies.  Id. § 51.014(a)(8).  Thus, we have no jurisdiction to review the June 2, 2004, order with respect to the denial of Krumnow’s plea to the jurisdiction.  We dismiss issue four.

Issue three: Executor

Krumnow argues that the district court, after signing the March 17, 2003, order denying the application to remove him as executor and trustee and confirming him as executor and trustee, should have transferred the case back to the county court for further proceedings consistent with its ruling because the contested issue had been resolved.  He argues that the district court did not have jurisdiction to sign the May 14, 2003, order removing him as executor and appointing a successor executor.  Krumnow asserts that the removal was improper because it failed to state any grounds for removal and there was no personal citation to notify Krumnow of a hearing on removal.

Appellees argue that Krumnow’s appeal of the May 14, 2003, order is untimely.  They also argue that the June 2, 2004, order does not extend Krumnow’s timetable for appeal.

The district court’s order of March 17, 2003, denied the application to remove Krumnow as executor and confirmed him as executor.  Ten days later, Pamela filed a motion to return property and specifically requested injunctive relief to remove Krumnow as executor and appointment of a successor executor.  Forty-eight days after this motion was filed, the district court ordered the removal of Krumnow as executor and appointed Stephen Boykin as successor executor.

A district court has plenary power to vacate, modify, correct, or reform a judgment within thirty days after the judgment is signed.  Tex. R. Civ. P. 329b(d).  A motion to modify, correct, or reform a judgment must be filed prior to or within thirty days after the judgment is signed.  Id. 329b(a), (g).  A district court has thirty days after a timely-filed motion to modify, correct, or reform a judgment is overruled, either by a written and signed order or by operation of law, to vacate, modify, correct, or reform a judgment.  Id. 329b(e), (g).  A motion to modify, correct, or reform a judgment is overruled by operation of law if it is not determined by written order signed within seventy-five days after the judgment was signed.  Id. 329b(c).  The time to appeal runs from the date the modified, corrected, or reformed judgment is signed.  Id. 329b(h).  A notice of appeal must be filed within thirty days after a judgment is signed.  Tex. R. App. P. 26.1(a).  A notice of appeal must be filed within ninety days after the judgment is signed if any party timely files a motion for new trial, a motion to modify the judgment, a motion to reinstate, or a request for findings of fact and conclusions of law.  Id.

We find that Pamela’s March 27, 2003, motion to return property was a timely-filed motion to modify, correct, or reform a judgment because it requests removal of Krumnow as executor and appointment of a successor executor that was denied by the district court’s prior order of March 17, 2003, and it was filed within thirty days after the order was signed.  See Tex. R. Civ. P. 329b(a), (g).  Because the district court did not expressly overrule this motion, the court’s plenary power was extended to June 30, 2003, to vacate, modify, correct or reform the judgment.  See id. 329b(c), (e), (g) (seventy-five days is May 31, 2003, and thirty days thereafter is June 30, 2003).  The district court modified its March 17, 2003, order on May 14, 2003, which was fifty-eight days later.  Thus, the district court had plenary power to modify its prior order and to remove Krumnow as independent executor.  However, because any issues regarding a successor executor were not transferred from the county court, the district court did not have authority to appoint a successor executor.

On June 12, 2003, Krumnow filed a motion to set aside and vacate the order signed May 14, 2003.  In the absence of an order overruling it, this motion to modify the judgment would extend the time to file a notice of appeal to August 12, 2003.  Tex. R. Civ. P. 329b(h); Tex. R. App. P. 26.1(a) (90 days after the modified order of May 14, 2003, was signed).  No notice of appeal was filed.  Thus, the May 14, 2003, order became final on August 12, 2003, and we have no jurisdiction to entertain an appeal from it.

The Probate Code states: “Upon resolution of all pending contested matters, the contested portion of the probate proceeding shall be transferred by the district court to the county court for further proceedings not inconsistent with the orders of the district court.”  Tex. Prob. Code Ann. § 5(b). Thus, once the contested matter of whether to remove Krumnow as executor was resolved, the district court should have transferred this contested portion of the probate proceeding back to the county court for further proceedings not inconsistent with the district court’s removal of Krumnow as executor.  See id.

We dismiss in part and sustain in part issue three.  The removal of Krumnow as executor in the May 14, 2003, order is final.  We vacate the appointment of the successor executor, Stephen Boykin, in the May 14, 2003, order.  We will remand the probate portion of this cause to the district court for transfer back to the county court.

          We now turn to the issue concerning the district court’s appointment of the receiver.

ISSUE ONE: RECEIVER

We review the court’s order appointing a receiver under an abuse of discretion standard.  See Balias v. Balias, Inc., 748 S.W.2d 253, 256 (Tex. App.—Houston [14th Dist.] 1988, writ denied); Carroll v. Carroll, 464 S.W.2d 440, 447 (Tex. Civ. App.—Amarillo 1971, writ dism'd); Strategic Minerals Corp. v. Dickson, 320 S.W.2d 882, 884 (Tex. Civ. App.—Austin 1959, writ ref'd n.r.e.).  A court may abuse its discretion by ruling arbitrarily, unreasonably or without reference to any guiding rules and principles, or without supporting evidence. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  When conducting an abuse of discretion review, we examine the entire record.  Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996); Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987).

A court may appoint a receiver in any case in which a receiver may be appointed under the rules of equity.  Tex. Civ. Prac. & Rem. Code Ann. § 64.001(a)(6) (Vernon Supp. 2004-05).  A trial court may on its own motion appoint a receiver without an application by any party when the facts justify the appointment to preserve or protect the property in litigation.  Cross v. Cross, 738 S.W.2d 86, 87 (Tex. App.—Corpus Christi 1987, writ dism’d w.o.j.); B&W Cattle Co. v. First Nat’l Bank of Hereford, 692 S.W.2d 946, 951 (Tex. App.—Amarillo 1985, no writ).  A receiver is appointed to receive and preserve the property for the benefit of all parties interested in the property.  Sloan v. Sloan, 474 S.W.2d 272, 275 (Tex. Civ. App.—Waco 1971, no writ).

Receivership is an extraordinarily harsh remedy and one that courts are particularly loathe to utilize.  Independent Amer. Savings Assoc. v. Preston 117 Joint Venture, 753 S.W.2d 749, 750 (Tex. App.—Dallas 1988, no writ).  A trial court has the discretion to appoint a receiver ex parte and without notice under certain circumstances.  There are stringent guidelines under which this action may be taken:

In recognition of the fact that appointment of a receiver without notice is one of the most drastic actions known to law or equity and should be exercised with extreme caution and only where great emergency or imperative necessity requires it, our courts have uniformly been reluctant to grant such harsh relief. Morris v. North Fort Worth State Bank, 300 S.W.2d 314 (Tex. Civ. App.—Fort Worth 1957, no writ). It has been held that appointment of receivers on ex parte application is to be made only in exceptional and extreme cases, Solomon v. Mathews, 238 S.W. 307 (Tex. Civ. App.—Amarillo 1922, no writ); and that appointment of receiver without notice to adverse party is one of the most drastic remedies known to the court and should be exercised only in extreme cases where right thereto is clearly shown and only then in exercise of great caution by the courts when the status of the property cannot be maintained and rights of applicants protected pending a hearing by a restraining order or temporary injunction or any less drastic remedy. Head v. Roberts, 291 S.W.2d 483 (Tex. Civ. App.—Fort Worth 1956, no writ); Marion v. Marion, 205 S.W.2d 426 (Tex. Civ. App.—San Antonio 1947, no writ); Wilkenfeld v. State, 189 S.W.2d 80 (Tex. Civ. App.—Galveston 1945, no writ); Keep 'Em Eating Co. v. Hulings, 165 S.W.2d 211 (Tex. Civ. App.—Austin 1942, no writ); Great Eastern Oil Co. v. Lewis, 49 S.W.2d 527 (Tex. Civ. App.—Dallas 1932, no writ); Hunt v. State, 48 S.W.2d 466 (Tex. Civ. App.—Austin 1932, no writ). A receiver may be appointed without notice or opportunity for adverse party to be heard only in extreme cases wherein there is great emergency and imperious necessity for immediate appointment. Johnson v. Williams, 109 S.W.2d 213 (Tex. Civ. App.—Dallas 1937, no writ); Ames v. Ames, 64 S.W.2d 1067 (Tex. Civ. App.—Eastland 1933, no writ); Bankers' Life & Loan Ass'n v. Cremona, 66 S.W.2d 762 (Tex. Civ. App.—Dallas 1933, no writ).

Best Investment Co. v. Whirley, 536 S.W.2d 578, 581 (Tex. Civ. App.—Dallas 1976, no writ) (emphasis added).

Texas Rule of Civil Procedure 695 requires that “[e]xcept where otherwise provided by statute, no receiver shall be appointed to take charge of property which is fixed and immovable.  When an application for appointment of a receiver to take possession of property of this type is filed, the judge or court shall set the same down for hearing and notice of such hearing shall be given to the adverse party by serving notice thereof not less than three days prior to such hearing.”  Tex. R. Civ. P. 695 (emphasis added). Real estate is “fixed and immovable property” within the meaning of Rule 695.  Continental Homes Co. v. Hilltown Property Owners Assoc., Inc., 529 S.W.2d 293, 296 (Tex. Civ. App.—Fort Worth 1975, no writ).  Appointment of a receiver without giving notice to adverse parties to be heard on the application is reversible error.  Preston 117 Joint Venture, 753 S.W.2d at 750; North Side Bank v. Wachendorfer, 585 S.W.2d 789, 792 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ).

Krumnow argues that the trial court abused its discretion when it appointed a receiver without an application for receivership being on file and without the statutory three-day notice of a hearing.  Appellees argue that a written application is not necessary to validate a trial court’s appointment of a receiver.  Appellees also argue that the record shows sufficient notice of the hearing regarding appointment of a receiver.

When the court gave notice of the May 25, 2004, hearing, it listed appointment of a receiver as one of the purposes of the hearing.  Because no application to appoint a receiver was on file at this point, the trial court raised this issue on its own motion. However, both the trust property and the probate property were subject to management by a fiduciary—the trustee or the personal representative of the estate.  Thus, we find that these facts do not justify the appointment, on the court’s own motion, of a receiver to preserve the trust and probate property.  See Cross v. Cross, 738 S.W.2d at 87; B&W Cattle Co., 692 S.W.2d at 951.

In the alternative, we will review the notice issue.  Krumnow did not receive notice to be heard on Appellee’s application to appoint a receiver filed at the May 25, 2004, hearing.  See Tex. R. Civ. P. 695; Preston 117 Joint Venture, 753 S.W.2d at 750; North Side Bank, 585 S.W.2d at 792.  Because we do not find that the status of the property could not be maintained by the fiduciaries (trustee and successor executor), or that the rights of all interested parties could not be protected pending a hearing by a restraining order or temporary injunction or less drastic remedy, or that there was a great emergency and imperious necessity for immediate appointment, we hold that the trial court erred in appointing a receiver without notice to Krumnow to be heard on the application.  See Whirley, 536 S.W.2d at 581.  The trial court abused its discretion in appointing a receiver.  See Balias, 748 S.W.2d at 256; Bocquet, 972 S.W.2d at 21.

Issue one is sustained.  We reverse the section of the trial court’s June 2, 2004, order appointing the receiver and render judgment dissolving the receivership.  We remand the trust portion of this cause to the district court for further proceedings consistent with this opinion.

CONCLUSION

We do not have jurisdiction to review issues two and four, and thus, dismiss them.

We dismiss issue three in part and sustain it in part.  We vacate the section of the June 2, 2004, order denying the motion to set aside and vacate the May 14, 2003, order.  We vacate the appointment of the successor executor, Stephen Boykin, in the May 14, 2003, order.  The order removing Krumnow as executor in the May 14, 2003, order is final. 

We sustain issue one and reverse the section of the trial court’s June 2, 2004, order appointing the receiver.  The receivership is dissolved. 

We remand the cause with instructions to return the contested probate matter to the county court for further proceedings consistent with the May 14, 2003, order and this opinion, and for further proceedings concerning the Trust consistent with this opinion.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

          (Chief Justice Gray present but not voting.)[3]^, [4]

Judgment reversed in part

Cause remanded with instructions

Opinion delivered and filed August 24, 2005

[CV06]

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    [1]       All references in this opinion are to the Probate Code as it existed in 2002, the date of the county court’s order transferring the “contested matter” to the district court.

    [2]       It would have been clearer if Krumnow had filed a separate petition under a different district court cause number than the cause number for the contested probate matter that was transferred from the county court. 

    [3]       Chief Justice Gray requested that the issuance of this opinion be delayed.  Justices Vance and Reyna rejected that request and voted to issue the opinion.  Chief Justice Gray will file a special note at a later date.

    [4]       This is an accelerated appeal.  Chief Justice Gray has had the opinion since April 26, 2005.