In re Fannette
| Decision Date | 11 July 2013 |
| Docket Number | No. 10-12-00141-CV,10-12-00141-CV |
| Parties | IN THE MATTER OF THE MARRIAGE OF BENJAMIN & FLEETA FANNETTE |
| Court | Texas Court of Appeals |
From the 272nd District Court
Brazos County, Texas
MEMORANDUM OPINIONIn this appeal, appellant, Fleeta Fannette, challenges several orders entered by the trial court in her divorce case. Specifically, in four issues, Fleeta contends that the trial court erred in: (1) denying her motion to show authority; (2) rendering divorce without evidence of the statutory elements of insupportability; (3) enforcing a mediated settlement agreement; and (4) granting a motion to sever filed by third parties, A.L. and Robert Fannette.1 We affirm.
Fleeta and Benjamin Fannette had been married for sixty-five years when Ben filed his original petition for divorce in Brazos County, Texas, on May 18, 2011. In his divorce petition, Ben asserted that: (1) he "has been a domiciliary of Texas for the preceding six-month period and a resident of this county for the preceding ninety-day period"; (2) the parties were married on or about March 30, 1946; (3) the parties ceased living together as husband and wife on or about April 26, 2011; (4) the marriage had become insupportable because of discord or conflicts of personalities that destroyed the marriage relationship and prevented any reasonable expectation of reconciliation; and (5) the couple did not have any children. However, a couple of months after filing for divorce, Ben's health took a turn for the worse. Nevertheless, in late August 2011, the trial court ordered the parties to participate in mediation. Because his health was declining, Ben returned to a hospital in Tyler, Texas, and executed a power of attorney to his brother Andy.
The trial-court mediation occurred on September 13, 2011. Fleeta was present with her attorney, Marvin Martin, and his legal assistant. Andy attended the mediation on Ben's behalf, in accordance with the previously-executed power of attorney. In his testimony at one of the many hearings in this case, Martin described the mediator as experienced and highly respected. The record indicates a great deal of animosity between the parties. In particular, Fleeta testified that she is a Catholic and that she never wanted the divorce. She also noted that she does not trust Andy's son, Robert. Moreover, Ben and Andy's sister, Marie Fazzino, described Andy as "crooked."Because of the animosity, the mediation was conducted with the parties in separate rooms with no contact with one another.
After several hours of mediation, the parties reached an agreement. According to the mediated settlement agreement, Ben was to receive, among other things, the couple's house in Millican, Texas, subject to any indebtedness secured by the property; two tracts of land in Cherokee County, Texas; two vehicles in his possession; and a lump-sum payment of $21,745. On the other hand, Fleeta was to receive, among other things, a lump-sum payment of $61,745; 50% of Ben's retirement and annuity accounts; and a 2005 Buick in her possession. In addition, the agreement provided that Fleeta would be allowed to live in the couple's house from September 15, 2011 to January 31, 2012, rent free, so long as she timely paid all utility bills. The agreement also contained the following language:
(Emphasis in original).
Martin testified that he and Fleeta reviewed the final mediated settlement agreement for approximately thirty minutes. Afterwards, Fleeta signed the agreement.Andy also signed the agreement as Ben's representative under the power of attorney. According to Martin's testimony, Fleeta was of sound mind, understood the contents of the agreement, and was not pressured to sign the agreement.2
The following day, September 14, 2012, the attorneys appeared before the trial court for rendition of a judgment of divorce based on the agreement. Neither Ben nor Fleeta attended the hearing. Fleeta testified that she was told that she was not needed at the hearing. Martin countered that he invited Fleeta to attend, but she indicated that she had other things to do. Nevertheless, both parties, through their attorneys, stipulated to Ben's residence, the absence of any children, that the marriage had become insupportable due to discord and conflict, and that there was no chance of reconciliation. No evidence was presented at the hearing.3 At the conclusion of the September 14, 2011 hearing, the trial court pronounced that the "divorce is granted and rendered." In addition, the trial court wrote on the portion of the docket sheet corresponding with September 14, 2011. And for furtherclarification, the trial court responded to a question by Ben's counsel that: "He is divorced."
A few days later, on September 17, 2011, Ben passed away. Subsequently, on September 30, 2011, C. Patrick Meece filed a suggestion of death and a motion for withdrawal and substitution of counsel, which stated that he, rather than Martin, represented Fleeta now. Meece later objected to the trial court signing a final divorce decree, asserting that the marriage terminated on Ben's death and that the proceeding should therefore be dismissed. Meece also filed a Rule 12 Motion to Show Authority—the contents of which mirrored the earlier-filed objections to the trial court signing a final divorce decree. See TEX. R. CIV. P. 12. Ben's counsel filed responses to Meece's filings.
In the meantime, Andy allegedly initiated a probate proceeding in Cherokee County, was appointed executor of Ben's estate, and retained Ben's counsel to represent him in his capacity as executor. Thereafter, on November 18, 2011, Fleeta filed a "counterpetition" against Andy and Robert, asserting claims of fraud, threat, duress, coercion, impaired capacity, unfair tactics, mistake, breach of fiduciary duty, conversion, negligent misrepresentation, conspiracy, participatory and vicarious liability, and fraud on the community. In this "counterpetition," Fleeta argued that Andy and Robert engaged in self-dealing and sought to attack the Mediated Settlement Agreement that she had previously signed. In fact, Fleeta specifically stated that she "revokes consent to the Mediated Settlement Agreement signed on September 13, 2011 . . . ."
On November 18 and December 22, 2011, the trial court conducted hearings on Fleeta's various motions. Several witnesses testified, and at the conclusion of the December 22, 2011 hearing, the trial court signed the final divorce decree. On February 3, 2012, the trial court denied Fleeta's Motion to Show Authority and severed Fleeta's claims against Andy and Robert from this cause. The trial court also made numerous findings of fact and conclusions of law, which were entered on March 29, 2012. Fleeta filed a motion for new trial, which was overruled by operation of law. See TEX. R. CIV. P.329b(c). This appeal followed.
In her first issue, Fleeta argues that the trial court erred in denying her Motion to Show Authority because Ben's death terminated the attorney-client relationship between Ben and his attorney. As such, Fleeta contends that Ben's counsel was not authorized to file a motion to enter a final divorce decree, nor was he authorized to appear on Ben's behalf at any hearing subsequent to Ben's death.
It is well-established that an attorney-client relationship terminates upon the death of the client. Murphy v. Murphy, 21 S.W.3d 797, 798 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (per curiam) (citing Loffler v. Univ. of Tex. Sys., 610 S.W.2d 188, 189 (Tex. Civ. App.—Houston [1st Dist.] 1980, no writ); Brooks v. Hale, 457 S.W.2d 159, 164 ()). Moreover, a party's death may moot certain issues between the parties, unless property rights are affected. Id. (); see Gentry v. Credit Plan Corp. of Houston, 528 S.W.2d 571, 572-73 (Tex. 1975) (); Black v. Black, 673 S.W.2d 269, 269-70 (Tex. App.—Texarkana 1984, no writ) ( ; Shook v. Republic Nat'l Bank of Dallas, 627 S.W.2d 741, 752 (Tex. App.—Tyler 1982) (), rev'd on other grounds, 653 S.W.2d 278 (Tex. 1983) (); Verret v. Verret, 570 S.W.2d 138, 140 (Tex. Civ. App.—Houston [1st Dist.] 1978, no writ) ( to abate a husband's appeal from a divorce decree despite his death while the appeal was pending); Walsh v. Walsh, 562 S.W.2d 501, 502 n.1 (Tex. Civ. App.—San Antonio 1978, no writ) (declining to abate a husband's appeal from a...
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