In re Allen
| Decision Date | 02 December 2022 |
| Docket Number | 08-21-00184-CV |
| Parties | In the ESTATE OF; Rickey Ray ALLEN, Deceased. |
| Court | Texas Court of Appeals |
James A. Showers, Hillsboro, for Appellee.
Don D. Ford, Houston, Jonathan M. Jabcuga, for Appellant.
Before Rodriguez, C.J., Palafox, and Alley, JJ.
This is an appeal from the trial court's order granting an independent administrator's application to resign and to make an immediate appointment of the decedent's son to serve as the successor independent administrator for the estate of his father, Rickey Ray Allen (Rickey).1 Rickey's surviving spouse, Appellant Lisa Allen (Lisa), contends that the trial court improperly granted the application by failing to: (1) provide notice and citation to all interested parties and the failure to hold a hearing before granting the application; (2) make findings of the necessity to immediately grant the application without notice and a hearing; and (3) obtain her consent before granting the application. In a fourth issue, Lisa contends that the trial court abused its discretion in appointing the decedent's son as the successor independent executor, contending that she had priority for the appointment under the Estates Code. Because we find that the trial court lacked the authority under the Estates Code to make the appointment in the manner that it did, we reverse the trial court's judgment and remand to the trial court for further proceedings.
Rickey, who passed away in July 2019, had two children, Robert Corey Allen (Corey) and Beckey Allen (Beckey), by his first wife, Ruth Allen (Ruth). Ruth passed away in 1999, and Rickey married Lisa in 2004. Before Ruth's death, Rickey executed a will leaving all of his property to Ruth and his two children. The will named Ruth as the independent executor of his estate, a third person as the first alternative executor, and Ruth's brother, Kenneth Lindsey (Kenneth) as the second alternative executor. At the time of Rickey's death, both Ruth and the third person had passed away, and Beckey, who passed away shortly after her father's death, disclaimed all interest in her father's estate. That left Corey as the sole beneficiary of the will.
Kenneth and Corey applied to admit Rickey's will to probate in the County Court of Law in Hill County, Texas. The application sought an order naming Kenneth as the independent executor of the estate. Lisa contested the validity of the will on several grounds, but the trial court found that the will was valid, admitted it to probate, and granted letters testamentary to Kenneth as the independent executor of the estate in March 2020. Lisa unsuccessfully challenged the order in an appeal to our sister court in Edinburg. See Estate of Allen , No. 13-20-00289-CV, 2021 WL 2006528, at *8 (Tex.App.--Corpus Christi–Edinburg May 20, 2021, no pet.)(mem. op.). The validity of Rickey's will is therefore no longer at issue.
Beginning in June 2020 through May 2021, Kenneth filed eight requests for extensions of time to file the estate's inventory, appraisement, and list of claims, all of which the trial court granted. On June 25, 2021, Kenneth and Corey filed a joint application seeking to allow Kenneth to resign as the independent executor without filing a final accounting, and asking that Corey be immediately appointed as his successor (the Application). As explained below, Chapter 361 of the Texas Estates Code generally requires a personal representative of an estate to file a final accounting before resigning, and further requires the trial court to provide notice and a hearing to all interested persons before granting the resignation and before appointing a successor representative.2 But in the Application, Kenneth cited an exception to this requirement, found in section 361.002 of the Code, which allows a "personal representative" to resign without filing a final accounting and which also allows a trial court to make an "immediate" appointment of a successor representative upon determining that a "necessity exists."3
In support of the need to resign without filing an accounting, Kenneth pointed to his "advanced age" and the fact that his residence was "distant" from Hill County where the estate was pending. Kenneth also sought the immediate appointment of Corey as the successor independent executor of the estate, pointing out that Corey was Rickey's sole surviving beneficiary under the will, and was qualified to serve under the Estates Code. Kenneth also agreed that if allowed to resign, he would not be discharged from his obligations under the bond he had posted as required by section 361.002 (b) of the Code.4
Although the Application did not include a proposed order, it appears that Kenneth's attorney or his legal staff hand-delivered a proposed order granting the Application to the trial court judge, which the judge signed approximately fourteen minutes after the Application was filed (the Appointment Order).
Lisa promptly moved to vacate and set aside the trial court's Appointment Order.5 In her motion, Lisa argued that the trial court erred in granting the Application, contending that the record did not support a finding that there was any "necessity" for allowing Kenneth to resign without filing a final accounting, or for making an immediate appointment of Corey as his successor. She therefore contends that the trial court needed to provide her with notice and a hearing prior to granting the Application under section 361.002 of the Estates Code. Casey opposed the motion, arguing that the exception in section 361.002 to the notice and hearing requirements applied due to Kenneth's advanced age and his inability to perform his duties adequately. The trial court denied Lisa's motion without holding a hearing and without further explanation.
Lisa now appeals from the trial court's Appointment Order.6
In her first two issues on appeal, Lisa renews her argument that the trial court lacked the authority under the Estates Code to issue the Appointment Order without providing her with notice and a hearing. Her third issue raises a different statutory twist, as she claims the trial court lacked the statutory authority to appoint Corey as an independent administrator because section 404.005(a) of the Estates Code requires that "all" of the estate's "distributees" must agree on a replacement independent administrator, and she was never consulted or consented. In her fourth issue, Lisa contends that she had statutory priority over Corey to be appointed as the successor executor given her status as Rickey's surviving spouse, and that the trial court therefore should have appointed her as the successor independent administrator of Rickey's estate, rather than Corey.
At the heart of Lisa's first two issues is the question of whether the trial court could issue its Appointment Order under Chapter 361 of the Texas Estates Code, without first providing her with notice and a hearing. As explained below, however, we conclude that the provisions of Chapter 361—which govern the resignation and appointment of "personal representatives"—are not the only relevant provisions when, as here, a testator has opted for an independent administration of his estate. In that situation, section 404.005(a) of the Code is the controlling provision in the Estates Code that gives a trial court the authority to appoint a successor independent administrator who is not named in the will.7 And because we find that the trial court did not follow the requirements of this provision, we conclude that the trial court abused its discretion in issuing the Appointment Order.
Our determination of whether the trial court erred in issuing the Appointment Order allowing Kenneth to resign and appointing Casey in his place, turns on how we interpret the meaning of various provisions in the Estates Code. In general, we review questions of statutory construction de novo, with our primary objective being to give effect to the Legislature's intent. Ferrell v. Univ. of Tex. Sys. , 583 S.W.3d 805, 808–09 (Tex.App.--El Paso 2019, no pet.), citing Taylor v. Firemen's & Policemen's Civ. Serv. Comm'n of City of Lubbock , 616 S.W.2d 187, 189 (Tex. 1981) ; see also Eastland , 273 S.W.3d at 820 (Tex.App.--Houston [14th Dist.] 2008, no pet.) (treating question of statutory construction of former Probate Code as presenting legal issues that appellate court reviews de novo.). In ascertaining the Legislature's intent, we give statutory terms their plain and common meaning unless such a construction would lead to an absurd result. See City of Rockwall v. Hughes , 246 S.W.3d 621, 625–26 (Tex. 2008) ; see also Ferrell , 583 S.W.3d at 808–09 (same).
Once we determine the Legislature's intent in enacting a provision, we apply an abuse of discretion standard to determine whether the trial court acted correctly in applying those provisions. See In re Estate of Denton , No. 11-10-00341-CV, 2012 WL 3063845, at *4 (Tex.App.--Eastland July 26, 2012, no pet.)(mem. op.) (recognizing that Texas courts have applied an abuse of discretion standard to review a trial court's actions under various sections of the former provisions of the Probate Code), citing Eastland , 273 S.W.3d at 820 (); In re Estate of Stanton , 202 S.W.3d 205, 209 (Tex.App.--Tyler 2005, pet. denied) (); In re Estate of Clark , 198 S.W.3d 273, 275 (Tex....
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