Fernandez v. Frost Nat. Bank

• Decision Date: 22 May 2008
• Docket Number: No. 13-06-00149-CV.,13-06-00149-CV.
• Citation: 267 S.W.3d 75
• Parties: Ann M. FERNANDEZ, Appellant, v. FROST NATIONAL BANK, Former Executor of the Estate of Elena Suess Kenedy, Deceased, and Frost National Bank and Pablo Suess, Trustees of the John G. Kenedy, Jr. Charitable Trust, Appellees.
• Court: Texas Court of Appeals

267 S.W.3d 75

Ann M. FERNANDEZ, Appellant, v. FROST NATIONAL BANK, Former Executor of the Estate of Elena Suess Kenedy, Deceased, and Frost National Bank and Pablo Suess, Trustees of the John G. Kenedy, Jr. Charitable Trust, Appellees.

No. 13-06-00149-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

May 22, 2008.

Eric Gordon Walraven, Marcos G. Ronquillo, Christi M. Villarreal, Shawn M. McCaskill, Julia F. Pendery, Dallas, Michele Mobley, Michael C. McCrea, DuBois, Bryant, Campbell & Schwartz, Austin, TX, for Appellant.

J.A. "Tony" Canales, Tara Adami Hoelscher, Canales & Simonson, P.C., Corpus Christi, Stephen Jody Helman, Jeffrey T. Knebel, Osborne & Helman, Bruce V. Griffiths, Office of the Atty. Gen., Austin, Jacqueline M. Stroh, Thomas H. Crofts, Jr., Crofts & Callaway, San Antonio, for appellees.

Before Chief Justice VALDEZ and Justices YAÑEZ and BENAVIDES.

OPINION

Opinion by Chief Justice VALDEZ.

By petition for bill of review, Ann Fernandez, appellant, directly attacked a declaratory judgment rendered in 1949. Frost National Bank, Former Executor of the Estate of Ellena Suess Kenedy, Deceased, and Frost National Bank and Pablo Suess, Trustees of the John G. Kenedy Jr. Charitable Trust (collectively referred to as the "Trustees"), appellees, moved for summary judgment and an anti-suit injunction. The district court granted the Trustees's motion for summary judgment and issued an anti-suit injunction. By three issues, Fernandez complains that the district court (1) lacked jurisdiction to render a summary judgment; (2) erred by granting summary judgment; and (3) erred by granting a permanent anti-suit injunction. We reverse and remand the summary judgment with instructions to abate the case and reverse and render a denial of the anti-suit injunction.

I. BACKGROUND

John G. Kenedy Jr. ("Kenedy") died on November 26, 1948. He left a holographic will, dated March 7, 1943, which appointed his wife, Elena Suess Kenedy, as the independent executor of his estate. The will states, "I [bequeath] and devise to my beloved wife Elena Süss [sic] Kenedy all my property of every character and [description] both personal and mixed." The will was probated in the County Court of Kenedy County on December 29, 1948. Kenedy's estate included mineral interests that were leased to Humble Oil & Refining Company ("Humble Oil").

Humble Oil, on July 14, 1949, filed a will construction suit (the "Humble Oil Case") in district court to settle a potential ambiguity in the will. According to Humble's pleadings, the will could be read to leave an intestacy as to Kenedy's real property. Only Elena Suess Kenedy and Sarita Kenedy East, Kenedy's sister, received notice of the Humble Oil Case, and no attorney ad litem was appointed to represent unknown heirs. The district court rendered a judgment on October 12, 1949, finding that all of Kenedy's heirs were before it. The district court declared Kenedy's will did not leave an intestacy but instead passed his interest in any real property to Elena S. Kenedy.¹

A. Fernandez's Heirship Application and Petition for Bill of Review

On May 9, 2002, Fernandez filed an application for declaration of heirship in Kenedy's estate in the County Court of Kenedy County (the "probate court"). Fernandez alleged that her mother, Maria Saenz Rowland, was employed as a maid by Kenedy in the 1920s and that she is the child of a relationship between Rowland and Kenedy. Fernandez further alleged that the Kenedy family disavowed and "covered up" Fernandez's paternity. Rowland allegedly told Fernandez, who was born on October 28, 1925, that Kenedy was her biological father in May 2000; that date, according to Fernandez, was the first time that she knew for certain that Kenedy was her father. Based on her mother's declaration and past speculation, Fernandez claimed to be Kenedy's sole heir.

On May 13, 2003, Fernandez entered district court with a petition for an equitable bill of review ("petition") in the Humble Oil Case. In her petition, Fernandez argued that she: (1) was a necessary party to the Humble Oil Case and accordingly, that the judgment in that case was not binding on her; (2) had a right to an equitable bill of review because she was not afforded proper notice; (3) was entitled to set aside the judgment on constitutional grounds; and (4) timely pleaded her petition because the discovery rule tolled any applicable statute of limitations. Shortly after filing her petition, Fernandez moved to abate her petition in the Humble Oil Case so that the probate court could transfer her petition to itself. See TEX. PROB.CODE ANN. § 5B (Vernon Supp.2007).

B. Probate and Mandamus Proceedings

On August 27, 2003, the probate court, which had been assigned a statutory probate judge, signed a "Second Order Transferring and Consolidating Causes of Action" (the "second transfer order").² The second transfer order transferred Fernandez's equitable bill of review petition from the district court that had rendered the original judgment to the probate court; it also consolidated the transferred equitable bill of review proceeding into a newly created probate cause number, which housed the contested estates of John G. Kenedy Jr., Sarita Kenedy East, and Elena Suess Kenedy.

The Trustees petitioned this Court for mandamus relief from the second transfer order, and on February 9, 2004, this Court issued an order staying all proceedings in the contested estates. In reciting the procedural history of the case, we noted that at the time the first and second transfer orders were signed, the estates in question had long since been closed and that no estates were pending before the probate court. In re John G. Kenedy Mem'l Found., 159 S.W.3d 133, 144 (Tex.App.-Corpus Christi 2004, orig. proceeding) (hereinafter referred to as "this Court's mandamus opinion") ("The record indicates that the estates of Mr. Kenedy, Mrs. Kenedy, and Ms. East were all closed years ago, a fact no party disputes."). This Court held that the probate court lacked statutory authority under section 5B of the probate code to order the transfer of the three bills of review because no estate was pending. Id. at 145-46. We conditionally granted mandamus relief and directed the probate court to vacate its transfer orders. Id. at 146.³

On June 18, 2004, the probate court ordered Kenedy's remains exhumed and examined to determine whether he is Fernandez's biological father. The Trustees sought a writ of mandamus from this Court for protection from the exhumation order, but its request was denied. In re Frost Nat'l Bank, No. 13-04-339-CV, 2004 WL 1505527, *1, 2004 Tex.App. LEXIS 6002, at *1 (Tex.App.-Corpus Christi July 6, 2004, orig. proceeding) (per curiam). The Trustees took their request for mandamus relief (the "exhumation mandamus") to the supreme court, which stayed the exhumation order. In re Frost Nat'l Bank, No. 04-0608, 200_Tex. LEXIS ___ (Tex. ___). The exhumation mandamus was consolidated with a related original proceeding, see In re Kenedy Found., No. 04-0607, 200_Tex. LEXIS ___ (Tex. ___), and submitted at oral argument on September 29, 2005.⁴

C. Summary Judgment, Probate Proceedings Redux, and Injunctive Relief

On January 6, 2006, the Trustees filed motions for no-evidence and traditional summary judgment in the equitable bill of review proceeding. The Trustees raised numerous grounds for summary judgment, including laches, adverse possession, construction of the will, and lack of standing.

Before responding to the Trustees's summary judgment motions in district court, Fernandez, on February 27, 2006, filed a "Motion to Re-Open Estate of John G. Kenedy, Jr., Transfer Humble Oil Case Under Texas Probate Code 5B, and Motion for Partial Summary Judgment of Ann Fernandez" ("probate court motion") in probate court. Fernandez pleaded to the probate court that constitutional and equitable grounds supported "re-opening" Kenedy's estate and called for the appointment of a temporary administrator. She also requested a transfer of the Humble Oil Case from district court to probate court. Through her probate court motion, Fernandez sought a partial summary judgment declaring that: (1) the Humble Oil Judgment was void; (2) Kenedy died intestate; (3) retroactive application of modern intestacy statutes was constitutionally required; (4) the applicable standard for paternity was by a preponderance of the evidence; and (5) the discovery rule applied.

In response to Fernandez's probate court motion, the Trustees filed, in the district court, an emergency application for temporary restraining order; they also sought a permanent injunction. The Trustees argued that Fernandez was attempting to circumvent the district court's jurisdiction by filing her probate court motion and setting it for a hearing just a few days before the district court was scheduled to hear the Trustees's summary judgment motions. The district court (1) issued a temporary restraining order prohibiting Fernandez from proceeding with her probate court motion and (2) scheduled a hearing on the Trustees's request for a permanent injunction.

After being enjoined from proceeding in probate court, Fernandez returned to district court and filed a response to the Trustees's summary judgment motions. She also amended her abatement motion to include an argument that the probate court held dominant jurisdiction over her petition because "[t]he parties and the issues presented in [the probate court proceeding] are the same parties and issues presented in this cause."

D. District Court's Orders and Notices of Appeal

The district court, on March 27, 2006, denied Fernandez's motion to abate and granted a summary judgment in the Trustees's favor without specifying the grounds. Fernandez filed her notice of appeal on March 28, 2006.

On April 12, 2006, the district court permanently enjoined Fernandez from pursuing the Humble Oil Case in the probate court. The district court then entered...