In The Estate Of Ruby Renee Byrom, Deceased

• Decision Date: 16 February 2011
• Docket Number: NO. 12-09-00279-CV,12-09-00279-CV
• Parties: IN THE ESTATE OF RUBY RENEE BYROM, DECEASED
• Court: Texas Court of Appeals

IN THE ESTATE OF RUBY RENEE BYROM, DECEASED

NO. 12-09-00279-CV

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER TEXAS

Opinion delivered: February 16, 2011

APPEAL FROM THE COUNTY COURT OF CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Jerry Byrom appeals the county court's orders holding him in contempt and committing him to county jail, awarding attorney's fees, and imposing a constructive trust. On appeal, Byrom presents three issues. We dismiss in part, vacate in part, and affirm in part.

Background

Ruby Renee Byrom died on February 5, 2005, and her son, Byrom, was named in her will as the sole beneficiary and independent executor of her estate. The will was admitted to probate in the County Court at Law of Cherokee County (the probate court), and Byrom was appointed the independent executor of Ruby's will and estate without bond. A few months after Byrom was appointed, Roy Anderson and Duane L. Coker filed claims in the probate court against Ruby's estate. Anderson, who had been appointed by a Denton County court as Ruby's temporary guardian, filed a claim based on two orders from that court for payment of attorney's and temporary guardian's fees. Coker, who had been appointed as the attorney ad litem for Ruby in the guardianship proceeding, filed a claim based on an order from the Denton County court for payment of attorney's fees. Byrom, as the independent executor of Ruby's estate, denied Anderson's and Coker's claims.

Anderson filed a motion to remove Byrom as independent executor, or in the alternative, to have Byrom show cause why he should not be required to post a bond. Anderson also movedto compel an accounting and requested attorney's fees. Byrom filed an inventory, appraisement, and list of claims, and Anderson objected to it. Thereafter, the probate court removed Byrom as independent executor for cause, but did not discharge him. Further, the probate court ordered Byrom to file an accounting and deposit $85,000.00¹ into the registry of the court within thirty days. The probate court also awarded Anderson attorney's fees against Ruby's estate in the amount of $14,034.10 for prosecuting the removal of the independent executor.

Then, Anderson filed a motion to enforce the removal order by contempt and requested attorney's fees. On June 16, 2009, the probate court ordered that Byrom be held in contempt for failing to deposit $85,000.00 into the registry of the court, and ordered that Byrom be committed to the county jail until he purged himself of the contempt and complied with the probate court's orders. The probate court also awarded Anderson attorney's fees against Ruby's estate in the amount of $7,058.17 for the contempt action.

Anderson filed a motion for a constructive trust to be imposed on Byrom's real property in Mount Enterprise, Texas, and requested attorney's fees. Coker, as intervenor, filed a notice of joinder in the motion to impose a constructive trust and an application for a turnover order. On August 10, 2009, the probate court granted the motion for a constructive trust, finding that Byrom had breached his fiduciary duty to Ruby's estate.² The probate court ordered that a constructive trust in the amount of $200,000.00 be imposed on Byrom's real property, and that if that amount was not paid into the registry of the court within thirty days, the probate court would order that the property be sold. Further, the probate court awarded Anderson and Coker attorney's fees against Ruby's estate totaling $6,412.94 incurred in obtaining the constructive trust. The probate court also ordered that a writ of attachment be issued for Byrom for failing to appear at the August 10 hearing even though he was ordered to do so. Finally, the probate court ordered that Byrom be brought before the court to fulfill the terms of the order holding him in contempt.

Byrom filed an application for a writ of habeas corpus seeking bond and the probate court set his bond at $80,000.00. Byrom's attorney filed the bond and Byrom was released. After ahearing, the probate court denied Byrom's application for writ of habeas corpus, ordered Byrom taken into custody, and set his bond at $95,000.00. Byrom filed another habeas application, which was denied. This appeal followed.

Order of Contempt

In his first issue, Byrom argues that the probate court erred by finding him in contempt and committing him to the county jail for violation of its removal order requiring him to deposit $85,000.00 into the registry of the court. More specifically, Byrom contends that the June 16, 2009 contempt order violates the Texas Constitution, which forbids that a person be imprisoned or incarcerated for a debt.

A contempt order is reviewable only by a petition for writ of habeas corpus if the person held in contempt is confined. See In re Henry, 154 S.W.3d 594, 596 (Tex. 2005); Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex. App.—Fort Worth 2001, pet. denied) (citing In re Long, 984 S.W.2d 623, 625 (Tex. 1999) (orig. proceeding)). Therefore, we lack jurisdiction to review Byrom's challenge to the June 16, 2009 contempt order on appeal. See Tex. Animal Health Comm'n v. Nunley, 647 S.W.2d 951, 952 (Tex.1983); Vernon v. Vernon, 225 S.W.3d 179, 180 (Tex. App.—El Paso 2005, no pet.); see also In re Long, 984 S.W.2d at 625.

Moreover, on September 8, 2009, Byrom filed a petition for a writ of habeas corpus with this court, complaining of the June 16, 2009 contempt order. We granted Byrom's petition for writ of habeas corpus and ordered him discharged because we determined that the contempt order violated the constitutional prohibition against imprisonment for debt and therefore, was void.³ Consequently, even if the contempt order could otherwise be reviewed by appeal, the issue Byrom raises here is moot. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (stating that if a party lacks a legally cognizable interest in obtaining relief and, thus, no longer faces the unconstitutional conduct about which he complains, that party's claim is moot).

Byrom's first issue is dismissed for want of jurisdiction.

Attorney's Fees

In his second issue, Byrom contends that the probate court erred in ordering subsequent attorney's fees for failure to pay a court-ordered claim for attorney's fees. In his brief, Byromstates that there were three separate awards of attorney's fees. We will address each award of attorney's fees separately.

Removal of Independent Executor

On September 10, 2008, the probate court removed Byrom as independent executor of Ruby's estate, and awarded Anderson attorney's fees against the estate in the amount of $14,034.10 for prosecuting Byrom's removal as the independent executor.

Before addressing the propriety of the fee award, we must first determine whether the award is appealable. To do so, we consider whether the probate court's order removing Byrom as the independent executor-the order that includes the fee award-is an appealable order. Generally, an appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Probate proceedings are an exception to the "one final judgment" rule; in such cases, "multiple judgments final for purposes of appeal can be rendered on certain discrete issues." De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (quoting Lehmann, 39 S.W.3d at 192). The appropriate test for jurisdiction adopted by the Texas Supreme Court is as follows:

If there is an express statute, such as the one for the complete heirship judgment, declaring the phase of the probate proceedings to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.

Id. (quoting Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995)). In addition, courts may assess finality by determining whether the order to be challenged "dispose[d] of all parties or issues in a particular phase of the proceedings" for which it was brought. Young v. First Community Bank, N.A., 222 S.W.3d 454, 457 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (quoting De Ayala, 193 S.W.3d at 579).

Here, there is no express statute providing that an order removing an independent executor is final and appealable. See Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex. App.— Austin 2000, pet. denied). The question, then, is whether the order removing Byrom as the independent executor disposed of each issue raised in the pleadings for that part of the probate proceeding or, in other words, whether the order conclusively disposed of that phase of the proceeding. See id. Anderson filed a motion requesting that Byrom be removed as theindependent executor of Ruby's estate for cause, or in the alternative, be required to show cause why he should not be required to post a bond. Anderson also moved to compel an accounting and sought his attorney's fees. The probate court's order removed Byrom as the independent executor of Ruby's estate, but did not discharge him, ordered him to file an accounting, and awarded attorney's fees against the estate. Because the order challenged here addressed each issue raised in Anderson's motion, thereby conclusively disposing of this phase of the probate proceeding, the order removing Byrom as independent executor is a final and appealable order. See id.; De Ayala, 193 S.W.3d at 578. Therefore, the award of attorney's fees included in the order is also appealable.

Next, we must determine whether Byrom timely appealed the fee award. The removal order was signed on September 10, 2008. Byrom timely filed a motion to reform the judgment or alternatively, for new trial, complaining that the award of attorney's fees was excessive, unreasonable, and unnecessary. Therefore, Byrom was required to file his notice of appeal on or before December 9, 2008. See Tex. R. App. P. 26.1(a)(1) (stating that a...