In re Estate of Rhoades

Decision Date08 September 2016
Docket NumberNO. 02-15-00353-CV,02-15-00353-CV
Citation502 S.W.3d 406
Parties Estate of Glenda Rhoades, Deceased
CourtTexas Court of Appeals

M. Keith Branyon, Colin L. Murchison, Jackson Walker L.L.P., Fort Worth, TX, for Appellant.

Josh Norrell, Norrell Law Office, Weatherford, TX, for Appellee.

PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.

BONNIE SUDDERTH, JUSTICE

I. Introduction

In two issues, appellants Norma Anderson, Paula Gilleland, Gerald Don Marrs, Joann Dycus, and Vicki George appeal the trial court's judgment for appellee Elise Kinler, arguing that the trial court erred by denying their motion for summary judgment and by granting Kinler's motion for summary judgment. We reverse.

II. Factual and Procedural Background

Article III of Glenda Rhoades's will, which she signed on October 4, 2007, made the following bequests:

• the real property constituting her residential homestead to her father, Glen Rhoades,
• all of her personal property to her father,
"all of the rest of [her] estate," to her father, but if he predeceased her, to Elise Kinler, but if Kinler should predecease her, to Kinler's son, Michael Kinler, and
"any other property that has not been disposed of under any other provision of this Will" to her heirs at law.

Rhoades also named Kinler as the independent executor of her will. See Tex. Est. Code Ann. § 401.001(a) (West 2014).1 Rhoades died on August 1, 2013, her father having predeceased her.

After Kinler filed an application to probate Rhoades's will in the Parker County Court, seeking the issuance of letters testamentary, Anderson filed an opposition to the appointment of Kinler as independent executor and an application for the appointment of a temporary administrator. See id . §§ 55.001, 256.052, 301.052, 301.101, 452.002 (West 2014 & Supp. 2016). Anderson also filed a motion to transfer the case to the county court at law in Parker County, which was granted on October 2, 2013.2

The will was initially ordered admitted to probate on December 12, 2013, but that order was subsequently set aside in a January 20, 2014 agreed order that also revoked the letters testamentary that had been issued to Kinler. An order was then issued appointing Kinler as temporary administrator with bond; letters of temporary administration were issued to her on May 19, 2014.

Both sides filed petitions for declaratory relief. Appellants sought a declaration that Rhoades's estate passed to Appellants under the residuary clause because the distributions to Rhoades's father failed. Kinler requested a declaration that the entire estate passed to Kinler because Rhoades's father predeceased her. Both Appellants and Kinler pleaded for the recovery of their respective attorney's fees.

Appellants and Kinler also filed competing motions for summary judgment, both claiming the unambiguous terms of the will justified a judgment in their favor on their respective declaratory-judgment claims. See Tex. R. Civ. P. 166a(c). Appellants also moved for summary judgment on their claim for attorney's fees, attaching summary judgment evidence proving up the requested amount of fees. Kinler did not seek the recovery of attorney's fees in her motion. On January 28, 2015, the trial court entered an order granting Kinler's summary judgment motion and denying Appellants'.

On March 24, 2015, Appellants filed a notice of nonsuit regarding their September 2013 contest. Approximately a week later, the trial court issued a new order admitting the will to probate, and two weeks after that, the trial court granted letters testamentary to Kinler. The trial court then granted the parties' agreed motion to dismiss their attorney's fee claims and transferred the case back to the county court on October 27, 2015. This appeal followed.

III. Discussion

In their first issue, Appellants argue that the trial court erred by granting Kinler's motion for summary judgment because although Kinler claimed that the will was unambiguous, "numerous edits, deletions and modifications" were required to secure the estate for her. In their second issue, Appellants argue that the trial court erred by denying their motion for summary judgment because if all of the language in the unambiguous will is harmonized with no edits, deletions, or modifications, the entire estate must pass to them.

A. Jurisdiction

Before we can reach the merits of either issue, we must address Appellants' contention that the trial court lacked jurisdiction to enter the summary judgment. Appellants argue that because at the time the trial court granted Kinler's summary judgment motion the order admitting the will to probate had been set aside, any decision with regard to the will's meaning was not ripe for consideration, and the trial court's summary judgment was merely an advisory opinion. Kinler responds that the will could be construed by declaratory judgment without being admitted to probate and that Appellants waived their ripeness complaint by filing and arguing their own motion for summary judgment during the same time period.

First, a defect in subject matter jurisdiction can be raised at any time, may be raised for the first time on appeal, and may not be waived by the parties, Tex. Ass'n of Bus. v. Tex. Air. Control Bd. , 852 S.W.2d 440, 445 (Tex.1993), and " '[r]ipeness is an element of subject matter jurisdiction.' " Levatte v. City of Wichita Falls , 144 S.W.3d 218, 222 (Tex.App.–Fort Worth 2004, no pet.) (quoting Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex.1998), cert. denied , 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999) ). Therefore, Appellants could not waive their ripeness complaint.

Having reviewed the admittedly sparse case law regarding whether a will must be admitted to probate before it becomes ripe for construction under the Uniform Declaratory Judgments Act (UDJA), this appears to be a case of first impression for our court. However, it does appear that in practice, Texas courts have construed wills under the UDJA before, during, and after admitting the will to probate.3

Although not argued or decided based upon issues of ripeness or subject matter jurisdiction, the San Antonio court, in Harkins v. Crews , has most directly addressed the issue of whether a will can be construed under the UDJA before being admitted to probate. 907 S.W.2d 51, 55–57 (Tex.App.–San Antonio 1995, writ denied). Harkins involved three wills—dated in 1983, 1987, and 1990, respectively—and five codicils. Id . at 54. After the 1990 will and codicils were offered for probate by decedent's second wife, her daughter, her grandson, and the attorney who drafted the 1990 will, the decedent's children by his first wife opposed the application, applied for probate of the 1983 will and codicils, and sought a declaratory judgment invalidating the 1987 will and codicils. Id . at 54. The jury found that the 1987 and 1990 wills and codicils were executed when the decedent lacked testamentary capacity and that the 1990 will and codicils were procured by undue influence. Id . Thereafter, the trial court admitted the 1983 will to probate, denied probate of the 1990 will and codicils, and declared the 1987 will and codicils invalid. Id . at 54–55.

On appeal, the appellants complained that the trial court had erred by rendering a declaratory judgment invalidating the 1987 will and codicils and argued that Texas law precluded the use of a declaratory judgment action to determine the validity of a will that had not been offered for probate. Id . at 55. Our sister court disagreed, observing that the trial court's action in rendering the declaratory judgment as to the invalidity of the 1987 will and codicils permitted a final determination of the rights of the parties from which the ultimate disposition of the decedent's estate could be determined, thus furthering the public policy of promoting judicial economy. Id. at 56–57. In reaching its conclusion, the court noted that the plain language of section 37.004 of the UDJA did not indicate that a will whose validity is being challenged must be one that has been offered or admitted to probate. Id. at 55–57. Compare Tex. Est. Code Ann. § 256.001 (West 2014) (stating that a will is not effective to prove title to, or the right to possession of, any property disposed of by the will until the will is admitted to probate), with id. § 101.001(a)(1), (3) (West 2014) (providing that if a person dies leaving a lawful will, all of the person's estate that is devised by the will vests immediately in the devisees and all of the person's estate that is not devised by the will vests immediately in the person's heirs at law).

Section 37.004 provides, in pertinent part, that a person interested under a will "may have determined any question of construction or validity arising under the instrument ... and obtain a declaration of rights, status, or other legal relations thereunder." Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (West 2015). Section 37.005 further provides that a "person interested" through an executor, administrator, devisee, legatee, heir, or next of kin in the administration of a decedent's estate

may have a declaration of rights or legal relations in respect to the ... estate:
(1) to ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others;
(2) to direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity;
(3) to determine any question arising in the administration of the ... estate, including questions of construction of wills and other writings; or
(4) to determine rights or legal relations of an independent executor or independent administrator regarding fiduciary fees and the settling of accounts.

Id. § 37.005 (West 2015).

As the supreme court has reminded us, the UDJA is a "remedial" statute with its stated purpose " 'to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.' " Bonham State Bank v. Beadle , 907 S.W.2d 465,...

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