Estate of Alberta Reese Connally ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-412-CV
ESTATE OF ALBERTA REESE CONNALLY,
DECEASED
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FROM PROBATE COURT NO.1 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Murphy Ward a/k/a Mervin Leon Reese, 2 a beneficiary under
both the will and a trust signed by decedent Alberta Reese Connally (Alberta),
appeals from two orders entered by the probate court denying his motion for
declaratory judgment and denying his motion for summary judgment. In seven
issues, Appellant argues that the appointed judge abused his discretion by
1
… See Tex. R. App. P. 47.4.
2
… Appellant is currently incarcerated and is proceeding pro se on appeal,
just as he did in the probate court.
denying Appellant’s motion to recuse Judge King and that the probate court
abused its discretion by declaring that trust at issue had not been funded, by
denying his motion for constructive trust, by overruling his objections to the
amended inventory, and by denying his motion for sanctions. We will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
A. The Will and the Unfunded Trust
In her will, Alberta appointed Willie B. Scott Jones as independent
executrix and bequeathed to her all of Alberta’s personal property, as well as
the residuary. The will bequeathed Alberta’s home and all related policies or
proceeds of insurance to Lura W. Reese, Appellant, and Nersis Reese Ferguson,
per capita.
Alberta thereafter signed a “Revocable One-Party Living Trust,” naming
Willie B. Jones as trustee. The trust instructed the trustee to sell Alberta’s
home and the adjoining lot and to distribute the proceeds one-half to Appellant
and one-half to Marie Connally and the trustee. The trust also instructed the
trustee to sell a 2001 Honda owned by Alberta, to place the proceeds into an
account named for Appellant, along with his part from the sale of the house and
lot, and to distribute a monthly check to him in the amount of $100.
Additionally, the trust document instructed the trustee to sell Longview
property owned by Alberta and to give one-third of the proceeds to Marie
2
Connally, one-third to the trustee, and one-third to the account for Appellant to
be distributed monthly. The trust also named Appellant as the beneficiary of
all of the royalty rights owned by Alberta. Thus, Appellant stood to gain more
under the trust than under the will.
After Alberta’s death, Jones applied for probate of the will and for the
issuance of letters testamentary. Jones also filed an application to determine
the effect of the revocable trust, arguing that it had never been funded.
Based on her belief that the trust had never been funded, Jones gave
Appellant a document entitled “Consent To Probate Of The W ill Of Alberta
Reese Connally And Waiver Of Any Claim Under A Revocable Trust,” which he
signed. The document states that Appellant is a beneficiary under both the will
and the trust, that the trust was never funded, that he joins in the petition for
probate of Alberta’s will, and that he disclaims any and all interest in the trust.
Beneficiary Marie Connally signed a similar document, disclaiming her interest
in the trust.
Thereafter, the probate court signed an order admitting the will to
probate. Jones subsequently filed an inventory, appraisement, and list of
claims, which the probate court approved.
3
B. Appellant’s Request for Declaratory Judgment and
Complaints Regarding the Inventory
Approximately fourteen months after the probate court approved the
inventory Appellant filed a request for a declaratory judgment, requesting that
the probate court make eight declarations regarding the trust. Appellant also
filed a “Complaint For Additional Inventory,” complaining that the inventory
filed by Jones failed to include the name listed on a Bank One account, the
name of the company issuing the oil royalty checks, and information about the
listed property in California.
The probate court held a telephonic hearing on Appellant’s complaint for
additional inventory.3 Approximately a month later, on March 22, 2007, the
probate court sent a letter to the parties stating that “[a]s I indicate[d] during
our telephonic hearing, I am granting the complaint for additional inventory, but
I am declining to find the trust was ever funded.” The probate court instructed
Jones that the inventory should reflect more specific information on the bank
accounts and royalty interests and that the reference to the California property
should be deleted because the probate court did not have jurisdiction over
3
… The appellate record does not contain a copy of the transcript from
this hearing, and it is unknown whether the hearing was recorded.
4
property located outside Texas. Jones thereafter complied with the probate
court’s instructions and filed an amended inventory.
C. Recusal Refused
Before the probate court could sign a written order memorializing his
rulings concerning the telephonic conference, Appellant filed a motion to recuse
Judge King. Judge Joe Loving was assigned to hear Appellant’s motion to
recuse and denied it.
D. Dueling Motions
Appellant thereafter filed a motion to impose a constructive trust, arguing
that the probate court should impose a constructive trust over “all the property
listed and unlisted within the inventory because fraud was committed against
the Trust Estate and its beneficiaries.” Specifically, Appellant contended that
the trust had been funded and that the trustee and her attorney fraudulently
obtained the waiver of Appellant’s interest in the trust.
In response, Jones filed a motion for summary judgment and objection to
Appellant’s motion for constructive trust. Jones argued that Appellant’s motion
for constructive trust was without merit and that the relief he sought was
barred by the doctrine of res judicata because the probate court had already
ruled that the trust was never funded. Jones also asked that the probate court
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consider appointing an attorney ad litem to represent Appellant because he
continued to file allegedly meritless motions.
Appellant filed a response to Jones’s res judicata motion for summary
judgment, arguing that Jones could not show that the trial court had ruled on
the issue of whether the trust had been funded. Appellant also claimed that he
was entitled to summary judgment as a matter of law on his motion to impose
a constructive trust because the executrix committed had fraud against the
trust estate.
Jones thereafter filed a motion for sanctions. In the sanctions motion,
Jones again urged the probate court to appoint an attorney ad litem for
Appellant because of the allegedly meritless pro se motions Appellant had filed.
Appellant responded to the sanctions motion and filed a cross-motion for
sanctions.
E. Rulings on the Dueling Motions
On October 9, 2007, the probate court held a telephonic hearing on the
motions it had before it, including both parties’ motions for summary judgment,
Appellant’s motion for constructive trust, and both parties’ motions for
sanctions. At the outset of the hearing, the probate court announced that it
was not going to grant either party’s motion for sanctions. Appellant argued
in support of his motion for summary judgment that he was misled by Jones
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and her attorney into waiving his rights under the trust. Appellant admitted
that he was not initially aware that both the will and the trust had been filed
with the probate court but that he had received a copy of both documents.
Appellant also stated that he was not aware that the probate court had ruled
against him on the trust and that he had not received a final judgment.
The probate court stated on the record,
[Appellant] in the March 22nd communication from the Court
to you, as well to [Jones’s counsel], there was a rendition of
judgment. A formal judgment has not been signed because of your
motion to recuse the Court. Until that was resolved, I was unable
to act on anything pending before the Court.
Based on review of the pleadings and the evidence
submitted, I’m going to decline to grant your motion for summary
judgment on the basis that the Court has previously ruled and
rendered judgment following the March – I believe it was the
hearing on the declaratory judgment where you indicated that the
trust had not been funded and therefore was not in existence or
active and that the will was the dispositive document for
[Alberta’s] estate.
Appellant asked the probate court to rule that the waiver was invalid or
void. The probate court, however, denied his request, stating that such relief
had not been prayed for and that the matter had already been determined at the
last telephonic hearing. The probate court explained to Appellant that “res
judicata says that everything that was ruled upon or that could have been ruled
upon is now foreclosed.”
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The next day, on October 10, 2007, the probate court signed two orders.
One order denied Appellant’s motion for summary judgment, denied the motions
for sanctions filed by both parties, and denied the motion for the appointment
of an ad litem for Appellant. The second order denied Appellant’s motion for
declaratory judgment, stating “that the inter vivos trust of the Decedent herein
dated December 23, 2004, was never funded”; ordered that the inventory
should be amended; and stated that “[a]ll other relief sought by either party
herein and not granted hereby is expressly denied.” 4 Appellant appeals the two
orders signed on October 10, 2007.
4
… The record includes a letter dated October 10, 2007, from the probate
court to the parties, which stated in pertinent part:
As I indicated during our telephonic hearing, I am denying the
Motion for Summary Judgment filed by [Appellant], principally on
the ground that the issues raised have previously been ruled upon
and are therefore res judicata.
Following the telephonic hearing of February 13, 2007, the
court made a rendition of judgment which it forwarded to all parties
by mail. By the time [Jones’s counsel] forwarded an order to me
for signature, a motion to recuse had been filed by [Appellant] and,
consequently, the court could not act until the motion to recuse
had been resolved.
Further, I am denying the motions of both parties for
sanctions.
The Motion for Appointment of an Ad Litem is not well taken
and has no basis in law. Therefore, it will also be denied.
Enclosed with this letter are copies of orders on: 1) the
February 13, 2007 hearing and 2) yesterday’s hearing.
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III. M OTION TO R ECUSE
In his sixth issue, Appellant contends that the appointed judge, Judge Joe
Loving, should have granted Appellant’s motion to recuse the judge of the
probate court, Judge King. Specifically, Appellant argues that he was
mistreated by the court clerk, whom Judge King should have required to be
courteous to litigants under Code of Judicial Conduct Canon 3B(4), and that
Judge King refused to make determinations regarding alleged wrongdoing by
Jones’s counsel. See Tex. Code Jud. Conduct, Canon 3B(4), reprinted in Tex.
Gov’t Code Ann., tit. 2, subtit. G app. B (Vernon 1997). Jones responds that
Appellant offered no evidence during the telephonic hearing to question the
integrity of Judge King or to indicate that he was biased.
The denial of a motion to recuse is reviewed under an abuse of discretion
standard on appeal. See Tex. R. Civ. P. 18a(f). The Texas Supreme Court has
stated,
‘[J]udicial rulings alone almost never constitute a valid basis for a
bias or partiality motion,’ and opinions the judge forms during a trial
do not necessitate recusal ‘unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.
Thus, judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge.’
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240–41 (Tex. 2001) (quoting
Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)).
9
Furthermore, expressions of impatience, dissatisfaction, annoyance, and even
anger do not establish bias or partiality. Id. at 240. “A judge’s ordinary efforts
at courtroom administration—even a stern and short-tempered judge’s ordinary
efforts at courtroom administration—remain immune.” Id. (quoting Liteky, 510
U.S. at 556, 114 S. Ct. at 1157).
Here, we have no record from the telephonic conference held by Judge
Loving. The record, however, that we do have before us does not support
recusal. As noted above, any remarks made by the court clerk to Appellant
would not support a bias challenge. Moreover, the record reveals that Judge
King made every effort to accommodate Appellant, who is in prison, by holding
telephonic hearings on the motions he filed and that he granted Appellant’s
motion to have Jones amend the inventory. Having reviewed the record, we
hold that Judge King did not demonstrate a bias that would support recusal.
See In re K.M.K., No. 04-02-00144-CV, 2002 WL 31760938, at *1 (Tex.
App.—San Antonio Dec. 11, 2002, pet. denied) (holding that, after reviewing
the record, neither judge demonstrated a bias that would support recusal), cert.
denied, 540 U.S. 1127 (2004). We overrule Appellant’s sixth issue.
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IV. D ECLARATORY J UDGMENT
A. Alleged Failure to Enter a Declaratory Judgment
In his first issue, Appellant argues that the probate court abused its
discretion when it allegedly refused to render or enter a declaratory judgment
in the case. Specifically, Appellant interprets the probate court’s statement at
the February 13, 2007 telephonic hearing that it was “declining to find the trust
was ever funded” as a refusal to enter a declaratory judgment. However,
Appellant’s first issue does not comport with his other issues on appeal in
which he complains that the probate court abused its discretion “when it
rend[ered] judgment against the appellant’s delcaratory judgment” and “when
it denied the appellant’s motion for declaratory judgment relief.” Because the
record demonstrates that the trial court entered a negative
declaration—declaring that the trust was never funded—on Appellant’s motion
for declaratory judgment, we overrule Appellant’s first issue. See Tex. Civ.
Prac. & Rem. Code Ann. § 37.003(b) (Vernon 2008) (permitting the declaration
to be either affirmative or negative in form and effect).
B. Effect of Declaratory Judgment
In his second through fourth issues, Appellant argues that the probate
court abused its discretion by rendering judgment against his motion for
declaratory judgment; by granting Jones’s res judicata defense, thereby denying
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his motion for the imposition of a constructive trust; and by denying his motion
for summary judgment. Because all three of Appellant’s arguments center
around the probate court’s declaration that the trust was never funded, we
begin with the declaratory judgment.
We review declaratory judgments under the same standards as other
judgments and decrees. See Tex. Civ. Prac. & Rem. Code Ann. § 37.010
(Vernon 2008). The trial court’s decision, being one of law, will be upheld on
appeal if it can be sustained on any legal theory supported by the evidence. In
re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984); Truck Ins. Exch. v. Musick, 902
S.W.2d 68, 69–70 (Tex. App.—Fort Worth 1995, writ denied).
Here, the record contains waivers from two of the beneficiaries of the
trust, including Appellant. The waiver specifically states that “[t]he Trust
created was never funded so far as I can determine” and that the beneficiary
“DISCLAIM[S] any and all interest in the ALBERTA REESE CONNALLY TRUST
instrument.” The record also contains a copy of the trust instrument and an
application to determine the effect of the revocable trust, stating that the trust
was never funded. Because the probate court had evidence before it to support
its declaration, we hold that the trial court did not abuse its discretion by
declaring that the trust at issue was never funded.
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The trial court initially announced this declaration in a letter to the parties
on March 22, 2007. Although Appellant did not believe that the probate
court’s letter of March 22, 2007, constituted a rendition of judgment, his belief
is not the measure we use to determine whether judgment was rendered.
Rendition of judgment and entry of judgment are distinct actions. See
Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978). Judgments usually go
through three stages: rendition, reduction to writing, and entry. Oak Creek
Homes, Inc. v. Jones, 758 S.W.2d 288, 290 (Tex. App.—Waco 1988, no writ).
A trial court renders judgment by oral pronouncement of its decision in open
court or by a signed, written memorandum filed with the clerk. S & A Rest.
Corp. v. Leal, 892 S.W.2d 855, 857–58 (Tex. 1995). To constitute rendition,
the court’s pronouncement “must clearly indicate the intent to render judgment
at the time the words are expressed.” Id. at 858. After rendition, the trial
court or the prevailing party prepares a written judgment that is signed by the
court. In re Ruiz, 16 S.W.3d 921, 924 n.3 (Tex. App.— W aco 2000, orig.
proceeding). After the court signs the judgment, the trial court clerk enters the
written judgment on the minutes of the court. Burrell, 570 S.W.2d at 384.
Here, we do not have a record from the telephonic hearing that was held
on February 13, 2007, so we cannot determine what was said in open court.
However, the March 22, 2007 letter from the probate court to the parties
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clearly constitutes a rendition of judgment based on the statement, “As I
indicate[d] during our telephonic hearing, I am granting the complaint for
additional inventory, but I am declining to find the trust was ever funded.” The
probate court affirmed this in its October 10, 2007 letter to the parties,
explaining that judgment had been rendered but that a formal judgment had not
been signed due to the motion to recuse. We therefore hold that the probate
court rendered judgment on March 22, 2007, when it declared that the trust
had never been funded.
Because the probate court rendered judgment on Appellant’s motion for
declaratory judgment on March 22, 2007, it properly granted Jones’s res
judicata defense when Appellant later filed a motion for constructive trust
arguing that he had been fraudulently induced into signing the waiver. As the
probate court noted, Appellant had never asked prior to the declaration for the
probate court to hold that the waiver he signed was invalid or void. Because
of Appellant’s failure to timely ask for such relief, that issue was foreclosed
after the probate court declared that the trust had never been funded. See
Welch v. Hrabar, 110 S.W.3d 601, 607 (Tex. App.— Houston [14th Dist.]
2003, pet. denied) (stating that res judicata prevents the relitigation of
adjudicated claims or claims that could have been raised). Moreover, the record
reveals that the property at issue had already been distributed to the heirs
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named in the will, making Appellant’s request for the imposition of a
constructive trust moot. And because Appellant’s motion for summary
judgment was based on the alleged necessity of a constructive trust, the
probate court did not abuse its discretion by denying his motion for summary
judgment in light of its previous rulings that declared that the trust had never
been funded and that Appellant’s argument for a constructive trust was barred
by res judicata.
We therefore hold that the probate court did not abuse its discretion by
making the declaration, granting Jones’s res judicata defense, and by denying
Appellant’s motion for summary judgment. W e overrule Appellant’s second
through fourth issues.
V. O BJECTIONS TO A MENDED INVENTORY
In his fifth issue, Appellant argues that the probate court erred by
overruling his written objections to the amended inventory, appraisement, and
list of claims. Jones responds that the probate court entered an order that it
felt the law required and that she complied with the order.
The time line of events related to the inventory follows:
October 12, 2005 Jones filed her initial Inventory.
October 21, 2005 The probate court signed an order approving the initial
inventory.
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December 20, 2006 Appellant filed a complaint for an additional inventory.
February 13, 2007 Jones filed a response to Appellant’s complaint for an
additional inventory, and the probate court held a
telephonic hearing on Appellant’s complaint for
additional inventory.
March 22, 2007 The probate court sent a letter to the parties granting
Appellant’s complaint for additional inventory and
specifying the changes Jones needed to make to the
inventory.
June 5, 2007 Jones filed the amended inventory and a blank order
approving the inventory.
June 8, 2007 Appellant filed the motion to recuse Judge King.
June 19, 2007 Appellant filed a complaint alleging that the amended
inventory is erroneous.
July 6, 2007 Judge Joe Loving denied Appellant’s motion to recuse.
October 10, 2007 The probate court signed orders, including an order
related back to the February 13, 2007 telephonic
hearing, which specified how the inventory needed to
be amended.
The record before us does not, however, contain a signed order approving
the amended inventory nor does it contain a ruling from the probate court on
Appellant’s complaint to the amended inventory. Although one of the probate
court’s orders from October 10, 2007, contains language that “[a]ll other relief
sought by either party herein and not granted hereby is expressly denied” and
would implicitly deny Appellant’s complaint, such language would not appear
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to encompass ruling on the amended inventory, which needs to be either
approved or disapproved—not denied. Such a ruling on the amended inventory
is a prerequisite for Appellant to bring his complaint on appeal. See Anderson
v. Anderson, 535 S.W.2d 943, 944 (Tex. Civ. App.—Waco 1976, no writ)
(stating that an order of the probate court approving or modifying the inventory
and appraisement has been held to be appealable). We therefore hold that
Appellant’s argument complaining about the amended inventory is not ripe
because there is no signed order approving the amended inventory. We
overrule Appellant’s fifth issue.
VI. M OTION FOR S ANCTIONS
In his seventh issue, Appellant argues that the probate court abused its
discretion by denying his motion for sanctions. Specifically, Appellant argues
that “to the extent that the court denied the motion because the appellant put
to its attention that it had not [given] fair notice, that was an abuse of
discretion, because the law require[s] fair notice” and that “to the extent that
the court . . . already had his mind made up to deny the sanctions without
taking judicial notice of the evidence and without ever hearing evidence—that
was an abuse of discretion.” Appellant contends that because the probate
court stated in its October 10, 2007 letter that “[t]he Motion for Appointment
of an Ad Litem is not well taken and has no basis in law,” the decision not to
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sanction Jones and her counsel was a clear abuse of discretion. Jones
responds that Appellant’s arguments and the facts in the record fail to establish
legal bases for the imposition of sanctions.
We review a ruling on a motion for sanctions under an abuse of discretion
standard. Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004). The test
under this standard “is not whether, in the opinion of the reviewing court, the
facts present an appropriate case for the trial court’s action, but ‘whether the
court acted without reference to any guiding rules and principles.’” Id. The
trial court’s ruling should be reversed only if it was arbitrary or unreasonable.
Id. Moreover, rule 13 requires courts to presume that pleadings are filed in
good faith. Tex. R. App. P. 13; GTE Commc’ns Sys. Corp. v. Tanner, 856
S.W.2d 725, 731 (Tex. 1993). The burden is on the party moving for
sanctions to overcome this presumption. Tanner, 856 S.W.2d at 731.
Here, although the probate court stated in its October 10, 2007 letter to
the parties that “[t]he Motion for Appointment of an Ad Litem is not well taken
and has no basis in law,” it had the discretion to choose whether to award
sanctions and chose not to. After reviewing the record, we cannot say that the
probate court’s decision was arbitrary or unreasonable. We therefore hold that
the trial court did not abuse its discretion by denying Appellant’s motion for
sanctions. See Wilson v. W achsmann, No. 03-04-00504-CV, 2006 WL
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1865522, at *6 (Tex. App.—Austin July 7, 2006, no pet.) (mem. op.)
(concluding that district court did not abuse its discretion by denying the
Wilsons’ motion for sanctions, which was based on filing groundless pleadings);
Yamaha Suzuki of Tex., Inc. v. Martinez, No. 10-02-00239-CV, 2004 WL
1588258, at *1–2 (Tex. App.—Waco July 14, 2004, pet. denied) (mem. op.)
(holding that no abuse of discretion occurred in the denial of the motion for
sanctions even though the party moving for sanctions contended that the other
party had filed petitions and affidavits that contained false statements). We
overrule Appellant’s seventh issue.
VII. C ONCLUSION
Having overruled Appellant’s seven issues, we affirm the two October 10,
2007 orders of the probate court that Appellant challenges in this appeal.
SUE WALKER
JUSTICE
PANEL: CAYCE, C.J.; LIVINGSTON and WALKER, JJ.
DELIVERED: October 9, 2008
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