In re Estate of Hutchins

• Decision Date: 13 November 2012
• Docket Number: No. 05–12–01098–CV.,05–12–01098–CV.
• Citation: 391 S.W.3d 578
• Parties: In re ESTATE OF Francis J. HUTCHINS, Deceased.
• Court: Texas Court of Appeals

391 S.W.3d 578

In re ESTATE OF Francis J. HUTCHINS, Deceased.

No. 05–12–01098–CV.

Court of Appeals of Texas,

Dallas.

Nov. 13, 2012.

Douglas T. Floyd, Plano, TX, John Alan Goren, John Alan Goren, Esq., Dallas, TX, for Relator.

Probate Court, Dallas, TX, for Respondent.

Trevor Aaron Dobbs, Don D. Ford III, Ford & Mathiason, LLP, Houston, TX, for Karen J. Coyle.

Before Justices BRIDGES, LANG, and FILLMORE.

OPINION

Opinion By Justice LANG.

In this mandamus proceeding, relator Susan E. Jones, independent executrix of the Estate of Frances J. Hutchins, Deceased (the “Estate”), seeks to vacate the trial court's June 5, 2012 “Order Denying Motion for Turnover Order” and obtain a trial court order requiring real party in interest Karen J. Coyle to deliver certain property in her possession to Jones. Because we conclude the trial court abused its discretion and relator has no adequate remedy by appeal, we conditionally grant the writ of mandamus.¹

I. FACTUAL AND PROCEDURAL BACKGROUND

The decedent, Francis J. Hutchins, died on April 9, 2011. Hutchins left a written “Last Will and Testament” that provided (1) Jones, a daughter of Hutchins, was to receive all right, title, and interest in a certain residential property owned by Hutchins; (2) Donna J. Smith, another daughter of Hutchins, was to receive $100,000; and (3) the remainder of the estate was to be divided equally among Jones, Smith, and Coyle, a third daughter of Hutchins. After Hutchins's death and before the will was filed for probate, Coyle obtained possession of certain property that had belonged to Hutchins at the time of her death, including a 2008 Chrysler 300 automobile (the “car”) and at least one item of jewelry.

An application for probate of Hutchins's will and issuance of letters testamentary was filed by Jones on May 16, 2011. On June 2, 2011, the will was admitted to probate and, pursuant to the terms of the will, Jones was appointed independent executrix of the Estate and was issued letters testamentary. Coyle filed an “Entry of Appearance” on July 19, 2011. On July 25, 2011, Jones filed an “Inventory, Appraisement, and List of Claims” that stated in part

The following is a full, true and complete Inventory and Appraisement of all personal property and of all real property of the Estate, together with a List of Claims due and owing to this Estate as of the date of death, which have come to the possession or knowledge of the undersigned.

The inventory list included, in part, the car and several items of jewelry. The “Inventory, Appraisement, and List of Claims” was “approved” by the trial court in an order dated July 27, 2011.

In an “Interim Order” dated September 14, 2011, the trial court ordered Coyle (1) to provide a sworn inventory of all property of the Estate in her possession; (2) not to “sale [sic], encumber or transfer” the car or “any jewelry of the [E]state”; and (3) to deliver the title to the car to the trial court. Coyle delivered the car title to the trial court ² and filed an inventory list of what she termed “disputed” property in her possession. That inventory list included the car, a small clock, and four jewelry items. At the bottom of that list, Coyle stated, “The foregoing items were distributed to Karen Coyle by the Executrix of this Estate, Susan Jones. None of these items were removed from this Estate without permission of the Executrix.”

On May 9, 2012, Jones filed a document titled “Motion for Turnover Order,” which stated it was a “Motion for Turnover of property of the Estate.” Jones stated therein that, as executor of the Estate, she was seeking possession of certain Estate property from Coyle “under the authority of Texas Probate Code § 37.” The property sought included the car, the small clock, and five jewelry items. Jones contended in part

Executor fears [Coyle] may damage, sale [sic], or diminish the value of the property during the pendency of this suit because [Coyle] refused to surrender possession of the property when specifically and rightfully requested by Executor to do so. This refusal by [Coyle] is an intentional concealment of the property and therefore jeopardizes the estate's interest in the property.

Jones requested therein that “a Turnover Order issue and that Movant receive all further relief to which Movant may be entitled.” Attached to the “Motion for Turnover Order” was an affidavit of Jones in which she testified that on approximately April 14, 2011, Coyle took possession of Estate property, specifically the car and various jewelry items, and has refused to return that property upon request.

Coyle responded by filing an “Objection to Motion for Turnover Order.” In that objection, Coyle cited section 31.002 of the Texas Civil Practice and Remedies Code and stated, in part, as follows:

A turnover order is a procedural device available to a party, through injunction or other means, in order to reach property to obtain satisfaction on a judgment. The purpose of the turnover statute (§ 31.002, Texas Civil Practice and Remedies Code) is to assist a judgment creditor in reaching certain property of a judgment debt or to obtain satisfaction on a judgment. A turnover order is not applicable to nonjudgment debtors. This is because the turnover statute is purely procedural in nature and does not provide for the determinate [sic] of substantive rights.

....

Jones' Motion must be denied because it fails to comply with the mandatory requirements of the Civil Practice and Remedies Code. To be entitled to relief requiring a party to turnover certain property, the requesting party must have obtained a judgment against the other party. Jones has not obtained a judgment against Coyle. Here, Jones is attempting to bypass the appropriate process for adjudicating legitimate property disputes by using a procedural device reserved exclusively for parties who have already obtained a judgment against a debtor.

(emphasis original) (citations omitted).

At the hearing on the “Motion for Turnover Order,” Coyle's counsel argued the trial court should dismiss Jones's motion because, pursuant to the authority cited in Coyle's objection, “a turnover order is only available to a judgment creditor.” Counsel for Coyle asserted that Jones had not “attained a judgment” and therefore had not “satisfied the basic statutory requirements to even be here today.”

Counsel for Jones argued in part

This request is merely for [Coyle] to return the items that belong to the estate to the independent executor. There is an order signed by this court stating that the inventory is approved. There's been no objections to that inventory. So there is an existing order that this Court has signed, stating that the property that we're requesting Karen Coyle return to the executor is properly of the estate. And that is what Rule 37 of the Probate Code seeks to address, a civil matter—a civil way for people to have property of the estate to return it.

Additionally, Jones testified at the hearing, in relevant part, as follows:

Q. And did you prepare and file an inventory of the estate of [Francis] J. Hutchins with this Court?

A. I did.

Q. Was one of those items that was in that inventory a 2008 Chrysler 300?

A. It was.

Q. Was another one of those items one diamond bracelet?

A. Yes.

....

Q. And the Will provided that the—that these items be divided between the three siblings—the three children of Francis J. Hutchins equally; is that correct?

A. Yes, sir.

....

Q. Okay. Have you requested on more than one occasion for Karen Coyle to return those items to you as the independent executor of the estate?

A. Yes, sir.

Q. Has she refused on all occasions?

A. Yes, sir.

Q. Are you asking this Court for an order to order Karen Coyle to return [the Estate property in her possession] to you by a date certain so that you can comply with the terms of the Will and comply with your responsibilities under the Texas Probate Code?

A. Well, yes, sir.

After the above-referenced “Order Denying Motion for Turnover Order” was signed by the respondent trial judge, the trial court made findings of fact and conclusions of law that included, in part, the following:

I. Findings of Fact

....

2. Jones filed her Motion for Turnover Order asking the Court to issue an order requiring Coyle to turnover to Jones various items that allegedly belong to the Estate.

3. Coyle denies Jones' allegations and filed an Objection thereto.

4. Jones has not obtained a Judgment against Coyle.

....

6. Jones offered no evidence that she has obtained a Judgment against Coyle, and offered no evidence that she is a judgment creditor and that Coyle is a judgment debtor.

7. This Court heard no evidence concerning the substantive rights of any property.

II. Conclusions of Law

1. Based on the evidence and testimony presented, the Court has concluded that Jones has not obtained a Judgment against Coyle.

2. This Court concludes that a turnover order is a procedural device available to a party in order to reach property to obtain satisfaction on a judgment and does not provide for the determination of substantive rights of property.

3. This Court further concludes that a turnover order is not available in this Cause because there is no judgment against Coyle.

This mandamus proceeding followed.

II. APPROPRIATENESS OF MANDAMUS RELIEF

A. Applicable Law

Mandamus will issue if the relator establishes a clear abuse of discretion for which there is no adequate remedy by appeal. In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex.2010) (orig. proceeding); In re Deere & Co., 299 S.W.3d 819, 820 (Tex.2009) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.2004) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig. proceeding); In re Tex....