Buck v. Estate of Buck

• Decision Date: 28 May 2009
• Docket Number: No. 13-07-00292-CV.,13-07-00292-CV.
• Parties: Jeffrey BUCK, Appellant, v. ESTATE of Lillian M. BUCK and Oscar A. Buck, Administrator and Independent Executor of the Estate of Lillian M. Buck, Deceased, Appellee.
• Court: Texas Court of Appeals

291 S.W.3d 46

Jeffrey BUCK, Appellant, v. ESTATE of Lillian M. BUCK and Oscar A. Buck, Administrator and Independent Executor of the Estate of Lillian M. Buck, Deceased, Appellee.

No. 13-07-00292-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

May 28, 2009.

Rehearing Overruled August 24, 2009.

Reynaldo Martinez, Jr., Corpus Christi, for appellant.

Frank E. Weathered, Dunn, Weathered, Coffey, Rivera & Kasperitis, P.C., M.W. Meredith, Jr., Corpus Christi, for appellee.

Before Justices YAÑEZ, RODRIGUEZ, and BENAVIDES.

OPINION

Opinion by Justice RODRIGUEZ.

This is an appeal from the denial of a statutory bill of review filed to set aside a death penalty sanction in a probate case.¹ By two issues, appellant Jeffrey Buck, grandson of the late Lillian M. Buck and son of appellee Oscar A. Buck, contends that the statutory bill of review was proper to correct substantial errors committed by the probate court when it struck his pleadings which included, among other things, his application to probate a 1996 will allegedly executed by his grandmother. We affirm.

I. Background

The present suit concerns proceedings that occurred during the probate of the estate of Lillian M. Buck. In 1981, Lillian executed a will leaving her estate to her husband and, if he was not living at the time of her death, to her three sons. This was followed by a first codicil in 1985, which appointed Oscar independent executor.

From 1989 to 1997, Lillian lived with Jeffrey. In 1996, Lillian allegedly executed another will revoking her earlier one. The 1996 will left everything to Jeffrey.

In March 2001, Lillian died, and in April 2001, Oscar applied to the probate court to be appointed administrator of his mother's estate. A few weeks later, Jeffrey filed an application for probate of the 1996 will and for issuance of letters testamentary. In response, Oscar filed an opposition, alleging numerous challenges to the validity of the 1996 will. In May 2001, the probate court appointed Oscar temporary administrator. This appointment was unopposed by agreement of the parties.

After Oscar filed his first motion for sanctions because of Jeffrey's failure to appear at his scheduled deposition, the parties agreed that no hearing would go forward because they had reached an agreement to reschedule Jeffrey's deposition. However, after Jeffrey did not appear at his deposition a second time, Oscar filed a second motion for sanctions asking the probate court to declare the 1996 will invalid, strike Jeffrey's pleadings, order Jeffrey to pay Oscar's attorney's fees, and appoint Oscar permanent administrator. The probate court granted the motion for sanctions, in part, ordering Jeffrey to appear for his deposition on a date certain and to pay Oscar $600 in attorney's fees no later than that same date.

After Jeffrey failed to appear for his deposition a third time and did not pay the $600 in fees, Oscar filed a third motion for sanctions asking the probate court to declare the 1996 will invalid, strike Jeffrey's pleadings, and order Jeffrey to pay additional fees. Again, the probate court granted the motion, in part, ordering Jeffrey to appear for his deposition on a specific date and to pay additional fees. The court also warned Jeffrey that if he failed to abide by the order, it would strike his pleadings.

After the probate court entered this order, Jeffrey appeared for his scheduled deposition but did not pay Oscar's attorney's fees. Through his deposition testimony, Oscar discovered that Jeffrey had used or caused to be transferred from his grandmother's Merrill Lynch account some $800,000 in stock and that all the proceeds had been spent or lost.² Based on this testimony, Oscar filed his fourth motion for sanctions asking the court to strike Jeffrey's pleadings. The probate court did not strike Jeffrey's pleadings but did order that the previous amounts of money the court had ordered Jeffrey to pay be reduced to judgment and that by August 9, 2001, Jeffrey was to provide Oscar with a sworn accounting showing use of all assets drawn from the Merrill Lynch account for a three-year period beginning December 18, 1997.

Jeffrey failed to provide the sworn accounting, and on August 15, 2001, Oscar filed his fifth motion for sanctions requesting that the trial court strike Jeffrey's pleadings. Following a hearing on August 21, 2001, the probate court issued an order striking all pleadings filed by Jeffrey. The court also appointed Oscar permanent administrator.

In September 2003, Jeffrey again filed an application to probate the 1996 will, which designated him as the executor and the only devisee of Lillian's estate. Jeffrey also requested the removal of Oscar as administrator and petitioned for an accounting. Oscar contested everything and noticed Jeffrey for his deposition. When Jeffrey failed to appear for this deposition, Oscar again filed a motion for sanctions, asking that Jeffrey's new pleadings be stricken and that Jeffrey be ordered to pay attorney's fees.

In April 2004, Oscar filed an application to probate the 1981 will. He also filed a motion to rule on costs. See TEX.R. CIV. P. 143 (providing that the trial court may order a party to give security to cover accrued costs of the trial, and if the party does not file the security, the court may dismiss the suit). The probate court ordered Jeffrey to appear at a September 10, 2004 hearing on Oscar's motion for costs. When Jeffrey did not appear at the hearing, the probate court ordered him to pay security for costs in the amount of $5,000 on or before October 5, 2004, and if he did not pay, all of his claims "shall be denied and dismissed."

On September 16, 2004, Oscar again moved for sanctions, this time for Jeffrey's failure to appear at the September 10, 2004 hearing. In this motion, Oscar asked the probate court to strike Jeffrey's pleadings and order him to pay an additional $750 in attorney's fees. The hearing on this motion was set for September 22, 2004. Notice of the hearing was served on Jeffrey's attorney of record. The actual hearing took place on September 27, and it is undisputed that Jeffrey appeared and was in court for that hearing, although his attorney was not. At the September 27 hearing, the probate court struck Jeffrey's pleadings.³ The probate court also ordered Jeffrey to pay $750 to Oscar. In addition, the probate court set Oscar's application to probate the 1981 will for hearing, and on September 28, 2004, the court admitted the 1981 will to probate.

On September 28, 2006, Jeffrey filed a bill of review seeking to set aside the sanctions order entered on September 27. Appellant alleged, in part, that the death penalty sanction dismissing his application to probate the 1996 will was an abuse of discretion because it was issued without proper notice to Jeffrey and without any evidence offered at the hearing to support the sanction. Jeffrey also contended by his bill of review that the record reflected that on September 27, 2004, both Jeffrey and Oscar had pending respective applications to probate wills set for trial on the merits on October 4, 2004, and that it was substantial error for the probate court not to hear both applications and determine which instrument should be admitted to probate.

On April 4, 2007, the probate court held an evidentiary hearing on Jeffrey's bill of review and motion to set aside the probate of the 1981 will. Jeffrey testified that he had repeatedly failed to honor court orders, was sanctioned by fines, and never paid any of the fines ordered by the court as sanctions. Jeffrey further testified that he was present in court on September 27, 2004, for the sanctions hearing and heard that his pleadings had been struck. Jeffrey provided deposition testimony consistent with his testimony offered at the hearing. Transcripts of Jeffrey's depositions were admitted as exhibits. The trial court also received several exhibits at the hearing, including, among other things, the application to probate the 1981 will, the application to probate the 1996 will, all of the orders that Jeffrey admitted to violating, the ruling imposing costs, the earlier order striking Jeffrey's pleadings in 2001, and the various non-appearance affidavits. The trial court also took judicial notice of its entire file in this probate matter.

After hearing the evidence and arguments of counsel, the trial court denied Jeffrey's bill of review and the motion to set aside the probate of the 1981 will and taxed all costs against Jeffrey. This appeal ensued.

II. Applicable Law and Standard of Review

Texas Probate Code section 31 provides,

Any person interested may, by bill of review filed in the court in which the probate proceedings were had, have any decision, order, or judgment rendered by the court, or by the judge thereof, revised and corrected on showing error therein; ... and no bill of review shall be filed after two years have elapsed from the date of such decision, order, or judgment.

TEX. Probate Code Ann. § 31 (Vernon 2003).⁴ "The purpose of a section 31 [statutory] bill of review is to revise and correct errors, not merely to set aside decisions, orders, or judgments rendered by the probate court." Nadolney v. Taub, 116 S.W.3d 273, 278 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (citing Jackson v. Thompson, 610 S.W.2d 519, 522 (Tex.Civ.App.-Houston [1st Dist.] 1980, no writ)). The error need not appear on the face of the record; but if it does not appellant must specifically allege and prove substantial error by the trial court. Id. (citing McDonald v. Carroll, 783 S.W.2d 286, 288 (Tex.App.-Dallas 1989, writ denied)). "The fact of error may be proven on the trial." McDonald, 783 S.W.2d at 288.

A statutory bill of review need not conform to the rules and is not limited by the restrictions of an equitable bill of review. See id. The ordinary diligence rules applicable to motions for new trial and to appeals from the complained-of judgment do not...