in the Estate of Frances Anderton Buchanan ( 2020 )

REVERSE in part; AFFIRMED in part; and Opinion Filed November 19,
2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01473-CV
IN THE ESTATE OF FRANCES ANDERTON BUCHANAN, DECEASED
On Appeal from the County Court at Law No. 2
Hunt County, Texas
Trial Court Cause No. 17188
MEMORANDUM OPINION
Before Justices Molberg, Carlyle, and Browning
Opinion by Justice Browning
The underlying facts of this appeal began in 2012 with the guardianship of
Frances Anderton Buchanan. The ownership and subsequent disbursement of funds
from certain accounts has been embroiled in family controversy ever since with
proceedings occurring in the probate court, the district court, and a prior appeal to
this Court. See Anderton v. Green, 555 S.W.3d 361 (Tex. App.—Dallas 2018, no
pet.).
In this appeal, we consider whether the trial court erred by concluding Jennifer
Green, Frances’s granddaughter, was entitled to disbursement of $206,320.33 from
Frances’s estate. We also determine whether the trial court erred by awarding
appellate attorneys’ fees and setting the supersedeas bond at $206,320.33. We
reverse the trial court’s award of appellate attorneys’ fees. In all other respects, the
judgment of the trial court is affirmed.
Background
Given that this appeal is part of a long, involved series of events and legal
proceedings, we endeavor to provide a brief summary of the factual and procedural
history that leads to the present appeal.
James Anderton, Frances’s son, is the sole trustee of a trust created in 1991
by Frances and her late husband. Jennifer is Frances’s granddaughter. Jennifer and
Frances enjoyed a close relationship that began in Jennifer’s childhood when she
moved in with the family. Their closeness continued into adulthood, and Jennifer
helped care for Frances during her declining health from cancer treatment.
Frances, an adept and experienced businesswoman, carefully managed her
finances and the inheritance for her family through trusts for her sons1 and several
annuities for Jennifer. In addition to being a beneficiary on the annuities, Jennifer
was also named as a joint owner of some of Frances’s bank accounts and the sole
beneficiary on other accounts.
1
Frances’s second son, Darrell, is not involved in this appeal.
–2–
By 2011, Frances suffered from dementia. Despite some days of appearing
fully cognizant and aware of her family and personal affairs, she often believed
people, including Jennifer, were stealing from her.
On October 15, 2012, James accompanied Frances to various financial
institutions “with the objective of removing Jennifer’s name from all of Frances’s
accounts.” Anderton, 555 S.W.3d at 367. Frances removed Jennifer from the
accounts and changed the beneficiary designations to the trust benefitting James.
Shortly thereafter, Jennifer learned of the changes.
James filed an application for guardianship of the person and estate on
October 19, 2012. Despite assisting Frances with financial decisions a few days
earlier, James claimed Frances could not “manage her bank accounts and
investments” and “suffered from ‘Chemo-brain’ [that] caused her to lose certain
brain functions, and the condition is getting worse.” He alleged Frances was “easily
taken advantage of, and will agree with anything that is suggested to her.”
Jennifer likewise filed an application for guardianship arguing that James was
disqualified to serve as temporary guardian because he, among other things, coerced
Frances to sign certain legal documents benefitting him when she was legally
incapacitated.
On November 1, 2012, the trial court denied both applications and appointed
Linda and Lloyd Brigance as Frances’s temporary co-guardians of her person and
Michael Taylor as temporary guardian of her estate. Taylor, pursuant to his
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authority, removed funds from various accounts and consolidated them into one
guardianship account.
On November 14, 2012, the court signed an Order on Estate Accounts During
Temporary Guardianship that stated in relevant part that no one
[S]hall make, execute, effectuate, or carry out, or attempt to make,
execute, effectuate, or carry out, any changes, deletions or additions to
the ownership rights, survivorship rights, or beneficiary designations
concerning any bank account or any other deposit account or
investment account belonging to the Estate including, but not limited
to, any changes, deletions or additions to any account or accounts of the
Estate requested by the Ward or any other person subject to the
jurisdiction of this Court prior to the hearings in this cause on October
23, 2012 and October 26, 2012, or any changes, deletions or additions
to any account or accounts requested by the Ward or any other person
subject to the jurisdiction of this Court during the term of this
Temporary Guardianship.
Frances died unexpectedly on November 26, 2012. On December 13, 2012,
James filed an application to probate Frances’s will, or alternatively, to issue letters
of dependent administration. In the will, James was designated as the trustee of the
Jimmie W. Anderton and Frances E. Anderton Revocable Living Trust and a
beneficiary under the trust. The revocable trust was the sole beneficiary of the estate
of Frances Anderton Buchanan per the terms of Frances’s last will and testament.
On December 20, 2012, Jennifer filed her plea in intervention objecting to the
appointment of James as successor independent executor and asserting a justiciable
interest in the litigation because Taylor, as guardian of the estate, was holding assets
rightfully belonging to her.
–4–
On January 3, 2013, the trial court appointed Taylor as administrator of the
estate, and he filed his oath to perform all duties as administrator of Frances’s estate.
On January 23, 2013, the Honorable Andrew Bench, judge of county court at
law number 1 signed an order transferring the proceedings to county court at law
number 2 because “through recent developments, it has become apparent that the
Honorable Andrew Bench, who happens to be judge of the Hunt County Court at
Law #1, is potentially a witness as to a fact matter in the above referenced
proceeding.”
Immediately thereafter, James filed an application for temporary restraining
order and temporary injunction claiming Jennifer had improperly obtained proceeds
from certain annuities held by Frances and the revocable trust. James claimed
Jennifer had spent portions of the proceeds; therefore, it was necessary that she be
restrained from spending, disbursing, or secreting any further proceeds from certain
funds to avoid immediate and irreparable injury. Jennifer answered and filed
numerous counterclaims against James individually and as trustee.
On April 14, 2014, James filed an application for partition and distribution of
the estate. He sought distribution of the estate assets to the revocable trust. On April
21, 2014, Jennifer filed her objection to the application for partition and distribution
of the estate. The court denied the application on July 23, 2014.
James subsequently sued Jennifer in the 354th district court and sought “to
claim monies that are yet to be received from accounts belonging to Frances E.
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Anderton” and requested, in part, declaratory judgment that “James Anderton, as
Trustee of the Anderton Trust, the intended beneficiary of the annuity account
benefits, bank accounts, and the house seeks to have the Court determine the rights
of the parties to such assets including the Alliance Annuity Accounts, the bank
accounts and the house.”
Jennifer counterclaimed seeking declaratory judgment that “(i) the Alliance
Accounts, Chase Accounts, ANB Accounts, and New ANB Account legally belong
to her, and (ii) the October 16, 2012 Power of Attorney is invalid, as well as any
transactions or actions related thereto or entered thereunder.”
On July 21, 2016, the case proceeded to trial in the 354th district court to
consider the causes of action related to ownership of certain financial assets and
whether Frances had the mental capacity to change the beneficiaries on certain
accounts in October 2012. The court heard fifteen witnesses over seven days.
Anderton, 555 S.W.3d at 370.
After the bench trial, Judge Beacom signed a final judgment on October 20,
2016, in favor of Jennifer stating, in relevant part,
Frances lost her mental capacity to manage all aspects of her property
sometime prior to October 15, 2012 . . . [which] continued
uninterrupted until her death on November 26, 2012.
All actions taken by [Frances] on or after October 15, 2012, at any
financial institution or attorney’s office, lacked legal effect and were
and are invalid, null and void.
...
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IT IS FURTHER ORDERED, ADJUDGED, DECLARED, AND
DECREED that [Jennifer] has a superior claim to [James] and the
Trust to all accounts that were held in the banks on October 15, 2012–
that is, the Alliance Accounts, the Chase Accounts, and the ANB
Accounts.
The final judgment also awarded Jennifer attorneys’ fees.
Subsequently, James filed an appeal to this Court. See Anderton, 555 S.W.3d
at 361. In two issues, James challenged the trial court’s finding that Frances lacked
capacity to manage all aspects of her property prior to October 15, 2012 (continuing
until her death) and awarding Jennifer attorneys’ fees against both James
individually and as trustee. Id. at 370. We concluded the evidence was sufficient to
support the trial court’s findings, conclusions, and declarations regarding Frances’s
mental capacity and that her actions on or after October 15, 2012 at any financial
institution or attorney’s office, lacked any legal effect and were invalid, null, and
void. Id. at 371–72. We reversed and remanded to the trial court the portion of the
judgment awarding Jennifer attorneys’ fees. Id. at 375. “In all other respects, we
affirm[ed] the trial court’s judgment.” Id.
After we issued our opinion, the fight continued in county court at law number
2 when Jennifer filed a request for disbursement of funds held by Taylor as a result
of the guardianship. She claimed entitlement to funds from two American National
Bank accounts and a Chase Bank account based on assets tracing, Judge Beacom’s
judgment declaring her superior claim to the accounts, and our opinion affirming
that judgment.
–7–
James filed his response in opposition to Jennifer’s request for disbursement
of funds shortly thereafter. He relied on the guardianship order appointing Taylor
as guardian and giving Taylor “the power to take possession and to manage the
personal property, including bank accounts, annuities, and other deposits or
investment accounts of [Frances].” James asserted Taylor had full authority to
consolidate the funds into a guardianship account, which he did on November 1,
2012, while Frances was still alive.
James argued that Jennifer made no objection regarding the consolidation of
these funds during the guardianship, she fully participated in the guardianship and
probate proceedings, and she made no objection to the order approving final account
of temporary guardian or any of the annual accounts filed and approved with the trial
court. Instead, James claimed that she waited almost seven years after the
guardianship proceeding to assert that the accounts were inappropriately
consolidated and that she owned the funds based on the judgment from the 354th
district court.
He contended that the final judgment only declared that Jennifer had superior
rights to funds on October 15, 2012; not that she is presently entitled to the funds
(which had been converted from the guardianship to the estate). He asserted Taylor
acted within his authority as temporary guardian in consolidating accounts and such
acts could not be undone because Jennifer’s claims were barred by res judicata,
collateral estoppel, and waiver, among other things.
–8–
Jennifer filed her response arguing in part, that “[i]f [James] truly believed
that the ownership rights of the bank accounts at issue already had been determined
in the probate proceedings, there would have been no reason for him to include the
litany of contentions about the bank accounts in his lawsuit against Green” in the
354th district court.
The trial court signed the order regarding Jennifer’s request for disbursement
of funds held by Taylor on October 8, 2019. Pursuant to the declarations in the final
judgment from the 354th district court, the court ordered Taylor to pay Jennifer
$206,320.33. It overruled all of James’s objections and denied all the claims that he
asserted.
The trial court signed an order on October 15, 2019 approving the account for
final settlement again recognizing Jennifer’s right to $206,320.33 and stating that
James had thirty days to appeal the order and pay a bond amount of $531,038.00. If
he failed to appeal and post the bond, Taylor was authorized to distribute the funds
to Jennifer.
Subsequently, James filed a motion to reconsider, modify, or clarify the order
approving the account for final settlement and awarding appellate attorneys’ fees.
He asked the court to reconsider the bond amount and the awarded attorneys’ fees
because both were excessive. He further contended that Jennifer had no pleading on
file that entitled her to recover attorneys’ fees. Jennifer filed leave to amend her
pleading to include a request for attorneys’ fees under the Declaratory Judgment Act.
–9–
On November 20, 2019, the court reduced the supersedeas bond from
$531,038.00 to $206,320.33 and granted Jennifer’s motion to amend pleading but
with certain stipulations regarding any appeal of appellate attorneys’ fees.
This appeal followed.
Disbursement of Funds from the Estate
James argues in his first issue that the trial court erred by disbursing
$206,320.33 in funds from the estate to Jennifer. James does not contest Jennifer’s
superior right to the funds prior to Taylor’s consolidation of the funds into the
guardianship account; rather, he argues Jennifer’s “superior right to such money
extinguished on November 1, 2012, when Taylor closed those accounts while
Frances was still alive.” To reach his conclusion, James argues the judgment from
the 354th district court did nothing more than find that Jennifer had superior rights
to the funds in the original accounts during a finite timeframe—from October 15,
2012 until November 1, 2012.
James contends that res judicata and collateral estoppel prohibited the trial
court from distributing the funds to Jennifer because the guardianship proceeding
resulted in a final order that fully adjudicated the matter. By not challenging the
guardianship proceedings and subsequent order, he argues that Jennifer is barred
from relitigating who has superior rights to the funds. Conversely, Jennifer argues
that James waived any argument regarding disbursement of funds when he failed to
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appeal the findings in the 354th district court’s judgment in the first appeal to this
Court. Accordingly, she claims James’s appeal is moot. We agree with Jennifer.
Neither party provides case law supporting the standard of review for the
issue presented. However, because resolution of the issue involves consideration of
multiple trial court orders and judgments, we must construe the relevant documents
under the same rules of interpretation as those applied to other written instruments.
See Aubrey v. Aubrey, 523 S.W.3d 299, 316 (Tex. App.—Dallas 2017, no pet.). If
an order or judgment is unambiguous, we must construe them in light of the literal
meaning of the language used. Id. In addition, when the judgment or order on its
face is plain and unambiguous, extrinsic matters may not be considered to give the
decree a different effect from that expressed by the literal meaning of the words used.
Id. (citing McLeod v. McLeod, 723 S.W.2d 777, 779 (Tex. App.—Dallas 1987, no
writ)). On the other hand, if the judgment is ambiguous, the entire context of the
judgment and the record should be considered. Freightliner Corp. v. Motor Vehicle
Bd. of Tex. Dep’t of Transp., 255 S.W.3d 356, 363 (Tex. App.—Austin 2008, pet.
denied). Further, we will not read an order in a manner that renders any of its words
meaningless or which leads to absurd results. See Crosstex Energy Serv., L.P. v.
ProPlus, Inc., 430 S.W.3d 384, 390 (Tex. 2014); Kourosh Hemyari v. Stevens, 355
S.W.3d 623, 627 (Tex. 2011). If the language in the judgment is susceptible to more
than one interpretation, the one that renders the judgment more reasonable, effective,
–11–
and conclusive, and that harmonizes it with the facts and the law of the case, should
be adopted. Freightliner Corp., 255 S.W.3d at 363.
To decide James’s first issue, we must harmonize several orders from the
guardianship proceeding, the probate proceeding, the 354th district court
proceeding, and the prior appeal. To begin, the final judgment subject to this appeal
granted Jennifer’s request for disbursement of funds and specifically relied on Judge
Bench’s November 14, 2012 order concerning estate accounts during temporary
guardianship and the declarations pursuant to the 354th district court’s final
judgment. We consider each in turn.
The November 14, 2012 order concerning estate accounts during temporary
guardianship stated, in relevant part, that neither Taylor nor any other person “shall”
make or attempt to make any changes, deletions, or additions to the ownership rights,
survivorship rights, or beneficiary designations concerning any of Frances’s
accounts prior to the October 23, 2012 and October 26, 2012 hearings. It further
stated no one subject to the jurisdiction of the court could make such changes during
the term of the temporary guardianship. By broadly ordering that no one could
change the ownership rights, survivorship rights, or beneficiary designations on
Frances’s accounts prior to or during the guardianship proceeding, the accounts
returned to their pre-guardianship status with Jennifer having rights to the accounts.
James does not dispute this. Rather, he claims Jennifer’s right to the accounts
extinguished when Taylor, pursuant to his powers as temporary guardian of the
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person and estate, transferred the accounts into the guardianship account on
November 1, 2012 while Frances was still alive.
James claims that it is clear from the language of the November 14 order that
the court (1) knew Taylor had already consolidated the accounts, (2) did not order
Taylor to restore any of the consolidated funds to Frances’s prior accounts, and (3)
meant to prohibit any party (including Taylor) from changing ownership rights,
survivorship rights, or beneficiary designations of the guardianship account because
this was the only account Frances owned at the time. Therefore, he argues the order
was not directed to Frances’s previous accounts, as they had already been closed.
The language of the order belies his argument. The order says nothing about
the guardianship account but instead references any “bank account,” “deposit
account,” “investment account,” and a broad reference “to any account or accounts
requested by the Ward or any other person subject to the jurisdiction of this Court
during the term of this Temporary Guardianship.” Thus, the unambiguous, plain
language of the order does not support James’s interpretation. Had the trial court
intended to prohibit changes to only the guardianship account, the order could have
been so narrowly tailored. Rather, given the broad language coupled with the
specific prohibition against any person subject to the jurisdiction of the court,
including Frances, making changes during the term of the temporary guardianship,
the court indicated the referenced accounts were those in existence prior to any
transfer of funds into the guardianship account.
–13–
To the extent James argues the November 14 order was merely a temporary
order superseded by the February 12, 2013 order approving final account of
temporary guardian, we are unpersuaded and our conclusion remains the same.
Taylor’s final account of temporary guardian filed with the court explained
that “the Temporary Guardian is ready to deliver the property still remaining on hand
to the person the Court finds to be legally entitled to possession of such property.”
The order approving final account stated that “the Temporary Guardian is the sole
recipient of funds and property as set forth in Exhibit C of the Final Account, and
the property remaining on hand should be delivered to the person entitled to have
possession of such property.” It then provided
IT IS THEREFORE ORDERED that said Final Account of Temporary
Guardian is hereby approved; that the Temporary Guardian shall
deliver forthwith all the property belonging to the Estate and still
remaining on hand to Michael E. Taylor, Administrator of the Estate of
Frances Anderton Buchanan.
The court ordered Taylor (as temporary guardian) to deliver property
belonging to the estate to himself as administrator of the estate, but did not define
what property belonged to the estate. Despite James’s argument to the contrary, the
closing of the temporary guardianship did not extinguish Jennifer’s rights and
change the funds into estate property. Nothing in the language of the order changed
or modified the status of Jennifer’s rights to the accounts as determined by the court
in its November 14 order.
–14–
By subsequently suing Jennifer in the 354th district court and seeking a
declaratory judgment, James continued to believe that a court had not determined
who possessed superior rights to the funds. After a seven-day bench trial, the 354th
district court’s final judgment put the issue to rest. The judgment, among other
things, unambiguously “ORDERED, ADJUDGED, DECLARED, AND DECREED
that Green has a superior claim to Anderton and the Trust to all accounts that were
held in the banks on October 15, 2012 – that is, the Alliance Accounts, the Chase
Accounts, and the ANB Accounts.”
James appealed that judgment, but only challenged the court’s findings
regarding Frances’s mental capacity and the award of attorneys’ fees. Anderton, 555
S.W.3d at 370. He did not challenge the finding that Jennifer has a superior right to
the funds.
A reviewing court does not again pass upon any matter presented to, directly
passed upon, or in effect disposed of by an earlier appeal to that court. See, e.g.,
Cessna Aircraft Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 149 (Tex. App.—
Dallas 2011, no pet.). An appellate court’s judgment is final not only in reference
to the matters actually litigated, but as to all other matters the parties might have
litigated and decided in the case. Id. (noting public policy aimed at avoiding
piecemeal litigation and instead ending it). Thus, if James believed the trial court
erred by declaring Jennifer has the superior right to the funds, he needed to raise the
issue in that appeal.
–15–
In reaching this conclusion, we reject James’s contention that he had no reason
to appeal that finding because the trial court determined Jennifer had a superior right
to the funds only on October 15, 2012 and not the present day. The judgment states
she “has” a superior right to the funds, not that she “had” a superior right, which
could indicate her right extinguished by some later action. But the plain language
of the judgment indicates otherwise.
Throughout his brief, James repeatedly relies on various orders to argue there
is no final judgment determining who has a present day right to the funds. James
loses sight of the procedural posture through which this appeal reached our Court a
second time. James is appealing the trial court’s judgment awarding disbursement
of funds to Jennifer after she filed a request for disbursement of funds based on the
judgment from the 354th district—a judgment we affirmed.
Significantly, had James believed that the ownership of funds had been
decided in earlier proceedings, he would not have sued Jennifer in the 354th district
court seeking “to claim monies that are yet to be received from accounts belonging
to Frances E. Anderton” and requesting a declaratory judgment regarding “the rights
of the parties to such assets, including the Alliance Annuity Accounts, the bank
accounts and the house.”
The record likewise indicates Taylor did not believe ownership of the funds
had been determined. During the bench trial in the 354th district court, Taylor
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testified that he still had the funds because “I don’t know who to tender them to . . .
I would hope the Court would tell me where to tender them to.”
At the conclusion of the bench trial, the 354th district court recognized its
inability to order disbursement of the funds despite finding that Jennifer had a
superior right to the bank accounts on October 15, 2012. In an October 12, 2015
letter, the court noted, “I would think with that finding, a motion could be filed with
the probate court claiming probate assets.” This is exactly what Jennifer did by filing
her request for disbursement of funds after we affirmed the 354th district court’s
judgment.
Accordingly, we agree with Jennifer that James’s attempt to challenge her
superior right to the funds is waived because he failed to challenge it in the first
appeal. See Cessna Aircraft Co., 345 S.W.3d at 149. In reaching this conclusion,
we reject James’s invitation to go back in time and consider the multitude of orders
stemming from the years of litigation regarding these funds. Instead, we have
harmonized the unambiguous language of the November 14, 2012 order and the
354th district court’s final judgment, both of which the trial court relied on in
reaching its final judgment subject to this appeal, as they relate to the prior appeal.
We overrule James’s first issue.
Appellate Attorneys’ Fees
In his second issue, James argues that the trial court erred by awarding
Jennifer appellate attorneys’ fees because there is no contract or statute authorizing
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the recovery of such fees, and she presented no evidence that the award was
reasonable, necessary, equitable, or just. Jennifer responds that James stipulated and
limited his appellate arguments regarding attorney’s fees; therefore, he cannot
challenge the award or the reasonableness of the fees. She further asserts she is
entitled to recover her fees under the Declaratory Judgment Act (the Act) because
the present lawsuit was a continuation of her declaratory judgment action from the
354th district court. See TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a).
We begin by rejecting James’s challenge to the reasonableness of the
attorneys’ fees award. In the final judgment, the parties stipulated to limiting
appellate issues regarding attorneys’ fees to the following: “(1) [Jennifer] failed to
include a request for attorneys’ fees in her [request for disbursement of funds]; and
(2) there is no statute or contract authorizing the recovery of attorneys’ fees under
the facts and issues presented to the probate court.”
In his reply brief, James concedes he stipulated to the amount of fees. See
Union Pac. R.R., Co. v. Ameriton Props. Inc., 448 S.W.3d 671, 676 n.1 (Tex. App.—
Houston [1st Dist.] 2014, pet. denied) (“Stipulations conclusively resolve the facts
stipulated and all matters necessarily included therein and bind the court.”).
However, James did not stipulate to Jennifer’s right to receive attorneys’ fees, as the
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judgment specifically provided that he could challenge on appeal whether any statute
or contract authorized the recovery of her fees under these facts.2
Texas prohibits the recovery of attorneys’ fees unless they are permitted by
statute or contract. LG Ins. Mgmt. Servs. v. Leick, 378 S.W.3d 632, 640 (Tex.
App.—Dallas 2012, pet. denied). Jennifer argues the trial court properly awarded
fees pursuant to the Act; however, Jennifer’s motion in the probate court seeking
disbursement of funds was not a declaratory action. While she referenced the
declarations from the 354th district court judgment in support of her motion to
disperse funds, mere references did not transform her motion into one seeking a
declaratory judgment from the probate court. Instead, she was seeking an order to
receive the funds that a separate court, in a separate proceeding, had already
determined. She has provided no authority, and we have found none, that a party
who obtains a declaratory judgment in one court can later piggy-back that judgment
to a completely separate proceeding, in a completely different court, before a
different judge and receive attorneys’ fees under the Act. Accordingly, we conclude
the trial court could not rely on the Act to award appellate attorneys’ fees.
The record does not indicate Jennifer is entitled to fees under any other statute.
In fact, she emphasized during the November 12, 2019 motions hearing that, “We’re
not asking for Chapter 38. That’s contracts and services rendered, et cetera. I don’t
2
Jennifer’s original request for disbursement of funds did not request attorney’s fees. Only after the
fact did she amend her pleadings adding her request for fees pursuant to the Act.
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even raise that. What we’re raising is Chapter 37 of the Civil Practice and Remedies
Code, which is the declaratory judgment action, which is what Judge Beacom relied
on.” Based on this concession, we reject Jennifer’s argument in which she seems to
indicate that because her motion included the tracing of funds tied to the signature
cards of bank accounts, she can recover under contract. While a signature card for
a bank account is a type of contract, she negated her reliance on a contractual theory
during the hearing. See Whitney Nat’l Bank v. Baker, 122 S.W.3d 204, 208 (Tex.
App.—Houston [1st Dist.] 2003, no pet.). Thus, she never made the argument to the
trial court, and we shall not consider it. See TEX. R. APP. P. 33.1.
We agree with James that the trial court abused its discretion by awarding
appellate attorneys’ fees. We sustain his second issue and reverse the trial court’s
award of $30,000 for an unsuccessful appeal by James to the court of appeals and
$17,000 to the supreme court.
Supersedeas Bond
In his third issue, James argues that the trial court erred by setting the
supersedeas bond at $203,320.33 because it is excessive and bears no relation to
maintaining the assets. Jennifer responds that by failing to post a supersedeas or file
an emergency motion in this Court, his appeal is moot because Taylor disbursed the
funds to her.
We begin by addressing whether the appeal is moot. As the Supreme Court
of Texas has explained, an appeal must be dismissed as moot “when a judgment
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debtor voluntarily pays and satisfies a judgment rendered against him.” Highland
Church of Christ v. Powell, 640 S.W.2d 235, 236 (Tex. 1982). In other words, a
party cannot freely decide to pay a judgment and later change his mind and seek an
appellate court’s help in recovering the payment. Id. This rule is designed to prevent
appellants from misleading their opponents into believing a controversy is over
when it is not. Id. At the same time, however, “[t]he Texas rule is not, and never
has been, simply that any payment toward satisfying a judgment, including a
voluntary one, moots the controversy and waives the right to appeal that judgment.”
Miga v. Jensen, 96 S.W.3d 207, 211 (Tex. 2002). Instead, “payment on a judgment
will not moot an appeal of that judgment if the judgment debtor clearly expresses an
intent that he intends to exercise his right of appeal and appellate relief is not futile.”
Id. at 212; see also Kamel v. AdvoCare Int’l, L.P., No. 05-16-00433-CV, 2017 WL
1149669, at *3 (Tex. App.—Dallas Mar. 28, 2017, no pet.) (mem. op.).
In this case, we cannot conclude Jennifer was misled into believing the
controversy concerning the funds was over when Taylor disbursed them. James
believed the trial court erred by awarding Jennifer the funds, and he intended to
continue challenging the award. He filed a motion to reconsider, modify, or clarify
the order approving the account for final settlement, and his notice of appeal stated
that he desired to appeal the order setting bond at $206,320.33. Thus, the
disbursement of funds did not moot this appeal because James “clearly express[ed]
an intent that he intend[ed] to exercise his right of appeal and appellate relief is not
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futile.” Id. at 212. We decline Jennifer’s request to dismiss the appeal and consider
James’s supersedeas argument.
Texas Rule of Appellate Procedure 24 addresses suspension of enforcement
of a judgment pending appeal in civil cases. TEX. R. APP. P. 24; see also Abdullatif
v. Choudhri, 536 S.W.3d 48, 51 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
On the motion of a party, an appellate court may review the sufficiency or
excessiveness of the amount of security. See TEX. R. APP. P. 24.4(a); see also Tex.
Custom Pools, Inc. v. Clayton, 293 S.W.3d 299, 305 (Tex. App.—El Paso 2009, no
pet.). Under rule 24.4, an appellate court may review (1) the sufficiency or
excessiveness of the amount of security, (2) the sureties on the bond, (3) the type of
security, (4) the determination whether to permit suspension of enforcement, and (5)
the trial court’s exercise of discretion under rule 24.3(a) regarding continuing trial
court jurisdiction. TEX. R. APP. P. 24.4(a).
A party may challenge a trial court’s supersedeas order by filing a proper
motion pursuant to rule 24.4. See, e.g., Holt v. McQueen, No. 14-09-00307-CV,
2009 WL 1325949, at *1 (Tex. App.—Houston [14th Dist.] May 14, 2009, no pet.)
(mem. op.) (concluding any challenge to a supersedeas order should be considered
as part of an appeal from a final judgment “[u]pon filing a proper motion pursuant
to Texas Rule of Appellate Procedure 24.4”); LMC Complete Auto., Inc. v. Burke,
229 S.W.3d 469, 488 (Tex. App.—Houston [1st Dist.] 2007, pet. denied)
(concluding proper remedy was to challenge bond by seeking relief pursuant to rule
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24.4(a)). James did not file a rule 24.4 motion with this Court seeking review of the
“excessive” amount of the supersedeas bond; therefore, he failed to properly and
timely challenge the order. See TEX. R. APP. P. 24.4(a), (d) (noting that when a party
files a motion, it “must be heard at the earliest practicable time”). Accordingly, we
overrule his third issue.
Conclusion
We reverse the trial court’s award of $30,000 for an unsuccessful appeal by
James to the court of appeals and $17,000 to the supreme court. In all other respects,
the judgment is affirmed.
/John G. Browning/
JOHN G. BROWNING
JUSTICE
191473F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE ESTATE OF FRANCES On Appeal from the County Court at
ANDERTON BUCHANAN, Law No. 2, Hunt County, Texas
DECEASED Trial Court Cause No. 17188.
Opinion delivered by Justice
No. 05-19-01473-CV Browning. Justices Molberg and
Carlyle participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED in part and REVERSED in part.
We REVERSE that portion of the trial court’s judgment awarding
“$30,000.00 as reasonable and necessary attorneys’ fees, if Anderton (whether
individually and/or as Trustee of the Trust) files an appeal with the Court of Appeals
that is ultimately unsuccessful, and Green can recover the $30,000.00 from James
Anderton, in his individual capacity and as Trustee of the Jimmie W. Anderton and
Frances E. Anderton Revocable Living Trust, jointly and severally” and “$17,000.00
as reasonable and necessary attorneys’ fees, if Anderton (whether individually
and/or as Trustee of the Trust) files an appeal with the Supreme Court of Texas that
is ultimately unsuccessful, and Green can recover the $17,000.00 from James
Anderton, in his individual capacity and as Trustee of the Jimmie W. Anderton and
Frances E. Anderton Revocable Living Trust, jointly and severally.”
In all other respects, the trial court’s judgment is AFFIRMED.
It is ORDERED that each party bear their own costs of this appeal.
Judgment entered November 19, 2020
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