Natalie Janine Garnes M.D. v. Alma McAfee ( 2021 )

Opinion issued December 23, 2021.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00717-CV
———————————
NATALIE JANINE GARNES M.D., Appellant
V.
ALMA MCAFEE, Appellee
On Appeal from Probate Court No. 2
Harris County, Texas
Trial Court Case No. 297,526
MEMORANDUM OPINION
Appellant Natalie Janine Garnes appeals the probate court’s order denying her
no-evidence motion for summary judgment and motion to vacate the order
appointing Appellee Alma McAfee as the dependent administratrix of Carl M.
Carroll, Jr.’s estate. In four issues, Appellant argues the trial court erred by (1)
failing to appoint her dependent administratrix for the estate of Carl M. Carroll, Jr.
pursuant to the mandatory provisions of Sections 361.103 and 304.001 of the Texas
Estates Code, (2) denying her no-evidence motion for summary judgment requesting
her appointment, (3) denying her motion to vacate the appointment of Alma McAfee
as dependent administratrix of the same estate due to lack of notice, and (4) not
entering requested findings of fact and conclusions of law.
We dismiss the appeal for want of jurisdiction.
Background
This appeal stems from an ongoing dispute among the beneficiaries of the
estates of Carl M. Carroll, Jr. (“Carl”) and Ruth Carter Carroll (“Ruth”). Carl and
Ruth divorced in 1983. They entered into a post-divorce settlement agreement that
purported to divide their assets, including certain oil and gas royalty interests held
by various entities, including C & RC-53, Inc. (“C & RC-53”).
Carl died in 1997. His sister, Robert Mae McAfee (“Ms. McAfee”), was
appointed independent executrix of his estate in accordance with the terms of Carl’s
Last Will and Testament. Ms. McAfee filed an inventory that listed C & RC-53 as
Carl’s separate property and an asset of his estate.
Ruth died in 2011. Carl’s and Ruth’s daughter, Laverne Natalie Dailey
(“Dailey), was appointed independent executrix of Ruth’s estate in accordance with
the terms of Ruth’s Last Will and Testament.
2
In June 2014, Dailey, as independent executrix of Ruth’s estate, petitioned for
declaratory judgment asking the probate court to decree that “all real property,
royalties and leases held by C & RC 53, Inc. belong to the Estate of Ruth Natalie
Carter Carroll, Deceased and that said property was never part of the Estate of Carl
M. Carroll, Jr., Deceased, pursuant to the Decree of Divorce and Settlement
Agreement.” Ms. McAfee, who was then over 90 years old and had been diagnosed
with dementia and diastolic heart failure, was served with citation of the petition for
declaratory judgment in August 2014. Because Ms. McAfee failed to file an answer
in the declaratory judgment action, Dailey filed a motion for default judgment
against Carl’s estate, which the probate court granted in 2015.
On August 10, 2016, upon the application of Alma McAfee (“Alma”), the
probate court removed Ms. McAfee as the independent executrix of Carl’s estate due
to her legal incapacity. The probate court appointed Alma1 as the dependent
administratrix of Carl’s estate and issued her letters of administration.
On August 19, 2016, Natalie Janine Garnes (“Natalie”), Dailey’s daughter and
Carl’s and Ruth’s granddaughter, moved to vacate the order appointing Alma as the
dependent administratrix of Carl’s estate (“Motion to Vacate”). She argued Alma
1
Carl’s will named Aubry Leroy McAfee, his nephew and Ms. McAfee’s son, as
successor independent executor of his estate. Aubry McAfee is disabled and
declined to serve as personal representative of Carl’s estate. Alma, Aubry McAfee’s
wife, is Ms. McAfee’s daughter-in-law and her court-appointed guardian.
3
had not provided Natalie, a named devisee under Carl’s Last Will and Testament,
with notice of Alma’s application and related hearing as required by statute. Natalie
argued the lack of notice had denied her the ability to contest the appointment of
Alma as dependent administratrix of Carl’s estate and to file her own application to
be appointed dependent administratrix.
Separately, on August 28, 2016, Natalie filed an application to appoint
dependent administratrix and for issuance of letters of administration (“Application
to Appoint”) asking the court to appoint her as the dependent administratrix of Carl’s
estate. Natalie claimed she had a superior statutory right over Alma to be appointed
dependent administratrix pursuant to Section 304.001 and 361.103 of the Texas
Estates Code. Natalie then filed a no-evidence motion for summary judgment on the
same grounds (“Motion for Summary Judgment”), claiming that as a matter of law,
she had a higher statutory right to be appointed as the successor dependent
administratrix of Carl’s estate. Alma filed a response to Natalie’s Application to
Appoint and Motion for Summary Judgment contesting Natalie’s application and
suitability to serve as dependent administratrix of Carl’s estate. Alma argued there
were issues of material fact concerning Natalie’s qualification to serve precluding
summary judgment.
4
By order dated October 7, 2020, the probate court denied Natalie’s Motion for
Summary Judgment and Motion to Vacate. The probate court held that
Upon hea[r]ing and review of the pleadings by the parties to the motion
to have Contestant, Natalie Janine Games appointed Administratrix of
Decedent, Carl M. Carroll, Jr.’ Estate, the court finds that the
Dependent Administratrix, Alma McAfee, has raised genuine issues of
material fact and that Contestant, Natalie Janine Garnes’s No-Evidence
Summary Judgment Motion should be denied.
Upon hea[r]ing and review of the pleadings by the parties to the Motion
to Vacate the Order Appointing Dependent Administratrix for Lack of
Notice and Motion for Sanctions, the court finds that Contestant,
Natalie Janine Garnes’s motions are without merit and should be
denied.2
Natalie filed a Notice of Appeal challenging the probate court’s order.
Jurisdiction
“[C]ourts always have jurisdiction to determine their own jurisdiction.”
Heckman v. Williamson Cty., 369 S.W.3d 137, 146 n.14 (Tex. 2012) (internal
quotations omitted); see also Royal Indep. Sch. Dist. v. Ragsdale, 273 S.W.3d 759,
763 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (holding appellate court can
consider its jurisdiction sua sponte because “jurisdiction is fundamental in nature
and may not be ignored”). An appellate court must determine, even sua sponte, the
question of its jurisdiction; the lack of jurisdiction cannot be ignored simply because
the parties do not raise the issue. See Walker Sand, Inc. v. Baytown Asphalt
2
The probate court did not rule on Natalie’s Motion to Appoint in its October 7, 2020
order. And there is nothing in the record reflecting a ruling on such motion after
October 7, 2020.
5
Materials, Ltd., 95 S.W.3d 511, 514 (Tex. App.—Houston [1st Dist.] 2002, no pet.);
see also Univ. of Tex. Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 358
(Tex. 2004) (explaining “a court is obliged to ascertain that subject matter
jurisdiction exists regardless of whether the parties have questioned it”). Whether
we have jurisdiction is a question of law we review de novo. See Tex. A & M Univ.
Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). If this is an appeal over which
we lack jurisdiction, we must dismiss it. Ragsdale, 273 S.W.3d at 763.
This Court has civil appellate jurisdiction only over final judgments and
interlocutory orders authorized as appealable by statute. See TEX. CIV. PRAC. &
REM. CODE §§ 51.012, 51.014(a); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195
(Tex. 2001) (holding “the general rule, with a few mostly statutory exceptions, is
that an appeal may be taken only from a final judgment”). Probate proceedings,
however, present “an exception to the ‘one final judgment’ rule[.]” De Ayala v.
Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (quoting Lehmann, 39 S.W.3d at 192).
“[I]n such cases, ‘multiple judgments final for purposes of appeal can be rendered
on certain discrete issues.’” Id. (quoting Lehmann, 39 S.W.3d at 192). This
exception reflects the necessity of reviewing “‘controlling, intermediate decisions
before an error can harm later phases of the proceeding[.]’” Id. (quoting Logan v.
McDaniel, 21 S.W.3d 683, 688 (Tex. App.—Austin 2000, pet. denied)).
6
The Texas Supreme Court in De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex.
2006) reaffirmed the test for finality of orders in probate proceedings first adopted
in Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995). The Court in De Ayala
explained:
If there is an express statute, such as the one for the complete heirship
judgment, declaring the phase of the probate proceedings to be final and
appealable, that statute controls. Otherwise, if there is a proceeding of
which the order in question may logically be considered a part, but one
or more pleadings also part of that proceeding raise issues or parties not
disposed of, then the probate order is interlocutory.
193 S.W.3d at 578 (citing Crowson, 897 S.W.2d at 783); see also Young v. First
Cmty. Bank, N.A., 222 S.W.3d 454, 457 (Tex. App.—Houston [1st Dist.] 2006, no
pet.).
Discussion
Natalie, Carl’s granddaughter and a devisee under his will, filed two motions
relevant to this appeal. She filed a (1) Motion for Summary Judgment arguing she
has a prior statutory right to be appointed successor dependent administratrix for
Carl’s estate under Sections 304.001 and 361.103 of the Texas Estates Code, and (2)
a Motion to Vacate the order appointing Alma dependent administratrix of Carl’s
estate for lack of notice. Each motion addresses independent grounds for relief. We
address our jurisdiction to review the probate court’s ruling on each motion
separately.
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A. Motion for Summary Judgment
Natalie filed her Application to Appoint seeking to be appointed successor
dependent administratrix for Carl’s estate under Sections 304.001 and 361.103 of
the Texas Estates Code. Section 361.103 provides
If letters testamentary or of administration have been granted to a
person and another person applies for letters, the court shall revoke the
initial letters and grant letters to the second applicant if the second
applicant:
(1) is qualified;
(2) has a prior right to the letters; and
(3) has not waived the prior right to the letters.
TEX. EST. CODE § 361.103. Under Section 304.001, a probate court must grant
letters of administration “to persons qualified to act” in order of priority. Relevant
to our analysis, “any devisee of the decedent” has the highest status.3 See TEX. EST.
CODE § 304.001(a)(4). A devisee, however, is disqualified to serve if the person is
“unsuitable.” Id. § 304.003(5). Although the Estates Code does not define the term
“unsuitable,” courts have recognized that a person who has a conflict of interest
related to the decedent’s estate is “unsuitable” to serve. See Pine v. deBlieux, 360
3
The first four categories of persons with priority under Section 304.001 are
inapplicable with respect to the dispute between Natalie and Alma. See TEX. EST.
CODE § 304.001(a)(1)–(3) (granting person named “as executor in the decedent’s
will” or “designated as administrator as authorized under Section 254.006” highest
priority, then “the decedent’s surviving spouse” and “the principal devisee of the
decedent” priority, in that order).
8
S.W.3d 45, 48, 51 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (holding
daughter’s conflict of interest rendered her unsuitable as matter of law to serve as
successor independent administrator of her father’s estate); see also In re Estate of
Robinson, 140 S.W.3d 801, 807 (Tex. App.—Corpus Christi 2004, pet. dism’d)
(“While there is no ‘bright line’ test to be applied, generally a person claiming
ownership of property, to the exclusion of the estate, is deemed unsuitable because
of the conflict of interest between the person and the estate . . . .”).
Natalie filed her Motion for Summary Judgment based on her Application to
Appoint arguing that as a matter of law, she has a prior statutory right to be appointed
successor dependent administratrix of Carl’s estate over Alma. She argued she was
entitled to summary judgment because Alma had presented no competent summary
judgment evidence showing Natalie is disqualified to serve or that Alma has a higher
priority to serve than Natalie. Natalie incorporated by reference her Application to
Appoint, where she requested to be appointed as successor dependent administratrix
of Carl’s estate.
Alma responded to the Motion for Summary Judgment arguing Natalie was
not entitled to summary judgment because there are questions of material fact over
Natalie’s suitability to serve due to alleged conflicts of interest. See TEX. EST. CODE
§ 304.003(5) (stating person is not qualified to serve as executor or administrator if
person is “a person who the court finds unsuitable”); Pine, 360 S.W.3d at 48, 51
9
(holding daughter’s conflict of interest rendered her unsuitable as matter of law to
serve as successor independent administrator of her father’s estate). Alma argued
there was litigation pending between Carl’s estate and Ruth’s estate over ownership
of certain overriding oil and gas royalty payments and Natalie’s “conduct ha[d]
aligned her financial interest with those of Ruth’s estate and against Carl’s estate,”
such that “[i]t is not in [Natalie’s] best interest to advocate for Carl’s estate in the
pending litigation between the two estates for the same property.”4 Among other
things, Alma asserted (1) Natalie had assigned her beneficiary interest in Carl’s
estate to Ruth’s estate, (2) Natalie’s mother, Dailey, is the independent executor of
Ruth’s estate, and (3) Natalie and Dailey are represented by the same attorney in this
probate dispute.
The probate court ultimately held Alma “[had] raised genuine issues of
material fact and that Contestant, Natalie Janine Garnes’s No-Evidence Summary
Judgment Motion should be denied.” Thus, because the probate court held genuine
issues of material fact exist, the issue concerning Natalie’s qualification to serve as
independent administratrix of Carl’s estate has not been finally adjudicated. Indeed,
4
In 2018, Alma filed a bill of review seeking to set aside the default declaratory
judgment entered in favor of Ruth’s estate in 2015 concerning ownership of “all real
property, royalties and leases held by C & RC 53.” The probate court granted the
bill of review, but this Court later reversed the probate court’s holding and remanded
the case for further proceedings. Dailey v. McAfee, No. 01-18-01060-CV, 2020 WL
4758429 (Tex. App.—Houston [1st Dist.] Aug. 18, 2020, no pet.) (mem. op.).
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there is no indication in the record that the probate court has ruled on Natalie’s
Application to Appoint.
We notified Natalie that there does not appear to be a final, appealable order
in this case and requested she file a response establishing our jurisdiction over her
appeal. See TEX. R. APP. P. 42.3(a) (allowing appellate court to dismiss case for
want of jurisdiction after giving ten days’ notice to parties). Although Natalie filed
a response, her arguments do not adequately explain why we have jurisdiction over
her appeal.5 Natalie merely reiterates she has a prior statutory right to be appointed
successor dependent administratrix under Sections 304.001 and 361.103 of the
Texas Estates Code and that the “denial of that statutory right by the trial court is an
independent final judgment on that issue and cause of action and is immediately
appealable along with the denial of the Appellant’s summary judgment motion.”
Then, citing to Guyton v. Monteau, 332 S.W.3d 687 (Tex. App.—Houston [14th
Dist.] no pet.) and Powell v. Powell, 604 S.W.2d 491 (Tex. Civ. App. 1980, no writ),
Natalie argues that Sections 304.001 and 361.103 “are specific statutes that grant
priority to a specific class of individuals of which [Natalie] certainly qualifies and
5
Although this Court instructed Natalie to address how we have jurisdiction to review
the probate court’s order denying her Motion for Summary Judgment separately
from our jurisdiction to review the probate court’s order denying her Motion to
Vacate, Natalie’s response addresses only our purported jurisdiction over the denial
of her Motion for Summary Judgment. Natalie does not address why or how we
have jurisdiction over the probate court’s ruling denying her Motion to Vacate.
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that meet the Crowson test of appealability.” See TEX. EST. CODE §§ 304.001,
361.103.
Natalie’s arguments miss the point. The question is not whether a final ruling
issued under the cited statutory provisions constitutes a final appealable judgment,
an issue we do not address.6 The question is why, given the interlocutory nature of
the October 7, 2020 order, where the probate court expressly held there are issues of
material fact precluding summary judgment as to Natalie’s qualification to serve, we
have jurisdiction to review the trial court’s interlocutory order denying Natalie’s
Motion for Summary Judgment. Guyton and Powell, on which Natalie relies, do not
address this key question.
In Guyton, Cynthia Monteau was removed as the administratrix of her late
husband’s estate, and Guyton, the child of Monteau and the decedent, applied to be
named the successor administratrix. 332 S.W.3d at 689. The trial court held that
Guyton was unsuitable to serve as the successor administratrix, denied Guyton’s
application and, on its own motion, appointed a local probate attorney as the
dependent successor administrator. Id. at 690. In Powell, the wife of the decedent
6
Sections 304.001 and 361.103 of the Texas Estates Code do not expressly state that
a probate court’s ruling under the statutes has the effect of a final judgment, and is
therefore, appealable. Cf. TEX. EST. CODE § 356.556(c) (“The court’s action in
approving or disapproving a report under Section 356.551 has the effect of a final
judgment. Any person interested in the estate or in the sale is entitled to have an
order entered under this section reviewed as in other final judgments in probate
proceedings.”).
12
was indicted for murder after she shot and killed her husband. 604 S.W.2d at 492.
The decedent’s mother applied for and received letters of administration shortly after
the shooting. Id. at 493. After she was acquitted of the decedent’s murder, the
widow petitioned to remove the mother and have herself appointed, claiming
priority. After a hearing, the probate court granted the widow’s petition, removed
the mother, and appointed the widow as administratrix. Id. at 492. Unlike in Guyton
and Powell, the probate court here did not rule on Natalie’s Application to Appoint.
Instead, it denied her Motion for Summary Judgment (on the Application to
Appoint) holding genuine issues of material facts exist precluding summary
judgment. Thus, Guyton and Powell are inapposite.
The opinions in Spies v. Milner, 928 S.W.2d 317 (Tex. App.—Fort Worth
1996, no writ) and In re Estate of Vigen, 970 S.W.2d 597 (Tex. App.—Corpus
Christi 1998, no pet.) are instructive and demonstrate why we lack jurisdiction over
Natalie’s appeal. In Spies, the trial court found Emma Spies (“Spies”) to be
unsuitable to serve as executor of her mother’s estate and denied her application to
be appointed executrix. 928 S.W.2d at 318. S. Camille Milner, who was appointed
temporary administratrix, argued on appeal that the court lacked jurisdiction over
the case because there was no final judgment that disposed of all issues and parties
because one of Spies’ siblings had filed a will contest that remained pending. Id. In
finding that the order denying Spies’ application to be appointed executrix was a
13
final, appealable order, the appellate court noted that “the order specifically states
that Emma is disqualified to serve as the personal representative of Marie’s estate.
It is final as to Emma’s rights as executrix.” Id.
Similarly, in In re Estate of Vigen, the trial court found that Helen James
(“James”) was unsuitable to serve as executor of Wilhelm Vigen’s estate because of
a substantial conflict of interest between James and the estate and denied James’
application for letters testamentary. 970 S.W.2d at 598. Relying on Spies, the
appellate court determined that the order denying James’ application was final and
appealable because “the order specifically stated that James ‘is disqualified to serve
as executrix of the estate,’” thus settling her rights to be named as executor. Id. at
599; see also Pine, 360 S.W.3d at 46 n.1 (“An order settling someone’s rights as an
executor is generally a final, appealable order.”) (citing In re Estate of Vigen, 970
S.W.2d at 599).
Unlike in Spies and In re Estate of Vigen, there has been no final adjudication
of Natalie’s right to be named as successor dependent administratrix of Carl’s estate.
The October 7, 2020 order Natalie seeks to appeal does not specifically state that
Natalie is “disqualified to serve” and it also does not rule on Natalie’s Application
to Appoint. Instead, the probate court determined Alma had “raised genuine issues
of material fact” concerning Natalie’s qualification to be appointed as the dependent
administratrix of Carl’s estate. See TEX. R. CIV. P. 166a(i) (stating court must grant
14
no-evidence summary judgment motion unless respondent produces summary
judgment evidence raising genuine issue of material fact). The October 7, 2020
order is thus not a final, appealable order as to Natalie’s qualification to serve and
we lack jurisdiction to review it.
B. Motion to Vacate the Order Appointing Alma
We also lack jurisdiction over Natalie’s appeal challenging the probate court’s
order denying her Motion to Vacate. Natalie moved to vacate the order appointing
Alma as dependent administratrix of Carl’s estate primarily on the ground she had
not received adequate notice before the probate court appointed Alma and issued her
letters of administration. See TEX. EST. CODE § 303.001(a) (“On the filing with the
clerk of an application for letters of administration, the clerk shall issue a citation to
all parties interested in the estate.”); id. § 303.002 (“A court may not act on an
application for the issuance of letters of administration until service of citation has
been made in the manner provided by this chapter.”). Alma responded to the Motion
to Vacate and provided evidence of service. The probate court denied Natalie’s
Motion to Vacate.
Under Crowson’s test for finality of orders in probate proceedings, an order
is interlocutory unless the order disposes of all parties or issues in a particular phase
of the proceedings or there is an express statute declaring the phase of the probate
proceedings to be final and appealable. See 897 S.W.2d at 782–83. The purpose of
15
the “particular phase of the proceedings” from which Natalie appeals is to determine
whether Alma should continue to serve as dependent administratrix of Carl’s estate
or whether she should be removed and Natalie appointed in her place. While the
probate court’s denial of Natalie’s Motion to Vacate means Alma cannot be removed
due to any alleged lack of notice, a question remains over whether Alma should be
removed and Natalie appointed in her place based on Natalie’s claim she has a
superior right to be appointed as successor dependent administratrix of Carl’s estate
under Sections 304.001 and 361.103 of the Texas Estates Code and Alma’s
contention Natalie is unsuitable to serve, an issue that was not resolved by the
probate court’s ruling on Natalie’s Motion for Summary Judgment. See id. at 783
(stating order disposing of all issues and all parties in probate proceeding “in the
phase of the proceeding for which it was brought” is final and appealable even when
proceeding remains pending as to other issues); see also De Ayala, 193 S.W.3d at
579 (“Because an order denying a plea to the jurisdiction and refusing to remove an
executor does not end a phase of the proceedings, but sets the stage for the resolution
of all proceedings, the order is interlocutory.”).
We further note there is no statute expressly authorizing an appeal over the
denial of a motion to remove an executor or administrator, whether as a final
judgment or an immediately appealable interlocutory order. See generally De Ayala,
193 S.W.3d at 579 (holding order denying motion to remove independent executor
16
was interlocutory and Texas Civil Practice & Remedies Code § 51.014(a)(2), which
permits interlocutory appeal of orders overruling motions to vacate orders
appointing receivers or trustees, does not apply to orders refusing to remove estate
executors); cf. TEX. EST. CODE § 356.556(c) (“The court’s action in approving or
disapproving a report under Section 356.551 has the effect of a final judgment.”).
For these reasons, we also lack jurisdiction to review the probate court’s ruling
on Natalie’s Motion to Vacate.
Conclusion
We dismiss the appeal for want of jurisdiction.
Veronica Rivas-Molloy
Justice
Panel consists of Chief Justice Radack and Justices Rivas-Molloy and Guerra.
17