Krumnow v. Krumnow
| Decision Date | 24 August 2005 |
| Docket Number | No. 10-04-00143-CV.,10-04-00143-CV. |
| Citation | 174 S.W.3d 820 |
| Parties | Phillip M. KRUMNOW, Jr., Individually, Phillip M. Krumnow, Jr. as Independent Executor of the Estate of Phillip M. Krumnow, Sr., Deceased and as Trustee of the Krumnow Family Trust and Trustee of the Phil Krumnow, Inc. Employees Pension Trust, Appellants, v. Pam KRUMNOW, Bettie Mendenhall, Individually and as Trustee of the Krumnow Family Trust and Norma Cora Withem, Individually and as Trustee for the Krumnow Family Trust, Lott State Bank, Stephen Boykin, Court Appointed Successive Administrator, Dona Harris, Appellees. |
| Court | Texas Supreme Court |
W. Randall Harrell, Jones, Harrell & Popelka PC, Temple, Bryan F. Russ Jr., and Molly Ann Hedrick, Palmos, Russ, McCullough & Russ, Hearne, J. David Dickson, Beard, Kultgen, Brophy, Bostwick Dickson, Waco, Stephen A. Boykin, Dona E. Harris, Franklin, for appellees.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
This is an appeal from an order of the district court regarding the Estate of Phillip Morris Krumnow, Sr. ("Phillip") and the Krumnow Family Trust ("Trust"). Appellant, Phillip M. Krumnow, Jr. ("Krumnow"), appeals in four issues: the district court abused its discretion by (1) appointing a receiver, (2) vacating a deed of trust lien and security interest, and (3) removing Krumnow as independent executor; and (4) the district court erred in denying Krumnow's plea to the jurisdiction.
Phillip died testate in 2002 leaving a Last Will and Testament ("Will") executed in 1993 and the inter-vivos Trust that had been established in 1993. Krumnow, the named independent executor in the will and the trustee of the existing Trust, commenced a probate action in the county court of Falls County, Texas. The county court signed an Order admitting the Will to probate and granted Krumnow letters testamentary. The Will provided that upon Phillip's death, all of his property would immediately pass to the Trust except for personal items bequeathed to Phillip's surviving spouse, Pamela Beth Colley Krumnow ("Pamela").
After the Will was admitted to probate, Pamela and Phillip's two daughters, Bettie Lanelle Mendenhall ("Bettie") and Norma Cora Withem ("Norma"), filed an application to remove Krumnow as independent executor and trustee and for appointment of a successor independent executor and successor trustee. Thereafter, the county court issued a transfer order to the district court under Probate Code section 5(b). TEX. PROB.CODE ANN. § 5(b) (West Pamphlet 2002).
On February 12, 2003, after the case was docketed in the district court, Krumnow filed an original counter-claim (petition) in the district court asking the court to interpret and construe the Trust. His petition alleges that the district court has jurisdiction over the probate estate and the Trust. He claims that Pamela, Bettie, and Norma are not cooperating with him as executor and trustee in creating an accounting of property belonging to the respective probate and trust estates. He requests (a) damages, (b) return and an accounting of all property belonging to the probate and trust estates, (c) an order that Pamela vacate the residence that she claims as a homestead, (d) attorney's fees, (e) interest, and (f) costs.
On March 17, 2003, the district court denied the application to remove Krumnow as independent executor and trustee and confirmed his appointment as independent executor and trustee. On March 27, Pamela filed a motion to return property, for injunctive relief, and for sanctions against Krumnow. In this motion, Pamela specifically sought removal of Krumnow as executor and appointment of a successor executor. On April 17, the district court sent a letter appointing Stephen Boykin as successor independent executor. On April 25, Norma and Bettie filed an original petition for partition. On May 14, the court signed the Order removing Krumnow as independent executor and appointing Stephen Boykin as successor executor.
On June 12, Krumnow filed a motion to set aside and vacate the order signed May 14, 2003. On April 30, 2004, the court sent notice to the attorneys for all interested parties of a hearing scheduled for May 25 for all "matters affecting the Krumnow estate and trust" including "appoint a receiver and order the property sold." On May 20, Krumnow filed a plea to the jurisdiction. The district court held a hearing on these and other motions on May 25. A trial amendment regarding appointment of a receiver was filed at the hearing, and Krumnow objected. On June 2, the district court signed an order (1) appointing Dona Harris as receiver and ordering him to sell all of the named real estate; (2) vacating the deed of trust lien and security interest Krumnow had entered into as trustee; (3) denying Krumnow's motion to set aside the May 14, 2003, order and confirming Stephen Boykin as successor executor; and (4) denying Krumnow's plea to the jurisdiction. Krumnow now appeals from this Order. Appellees include Pamela, Bettie, Norma, Lott State Bank (a creditor), Boykin, and Harris.
We must inquire into our own jurisdiction, even if it is necessary to do so sua sponte. Normand v. Fox, 940 S.W.2d 401, 402 (Tex.App.-Waco 1997, no writ). The jurisdiction of the district court, which affects our jurisdiction, has been disputed since the county court transferred the contested matter to the district court. We will address the district court's jurisdiction over the probate estate and over the trust estate and then review our jurisdiction of the interlocutory appeals.
The district court had two separate proceedings pending in a single cause number: the probate matter and the trust matter.
The constitutional county court's authority to transfer a case to a district court includes only the transfer of a "contested matter." TEX. PROB.CODE ANN. § 5(b) (West Pamphlet 2002).1 The petition filed in the county court sought removal of Krumnow as both executor of the estate and trustee of the Trust. However, the county court had no jurisdiction over any aspect of the Trust. TEX. PROP.CODE ANN. § 115.001(a) (Vernon Supp.2004-05) (district court has exclusive jurisdiction over trust proceedings). Thus, the "contested matter" before the county court, eligible for transfer, was whether to remove Krumnow as the independent executor. TEX. PROB.CODE ANN. §§ 5(b), 222 (West Pamphlet 2002). Although the petition also sought appointment of a successor representative for the estate, that issue could not come before the county court or become a contested matter until a remand of the district court's determination of the petition to remove the existing executor. Id. § 220 (West Pamphlet 2002). Thus, we find that with respect to the probate proceeding, the district court had authority to hear and determine only whether Krumnow should be removed as independent executor.
Krumnow believes that the district court did not have jurisdiction over any matters regarding the Trust because it is an inter vivos trust. He argues that the Trust is not subject to the probate jurisdiction of the district court, which is limited to contested matters regarding the probate administration. However, we find that the petition Krumnow filed on February 12, 2003, invoked the jurisdiction of the district court over all Trust matters after February 12. See TEX. PROP.CODE ANN. § 115.001(a).2 Thus, we may have jurisdiction to review issues one and two depending on a review of our jurisdiction with respect to interlocutory appeals.
Generally, we have appellate jurisdiction over an interlocutory appeal only when expressly provided by statute. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998) (per curiam); Chase Manhattan Bank v. Bowles, 52 S.W.3d 871, 878 (Tex.App.-Waco 2001, no pet.). Jurisdiction to review an interlocutory order is either specified in a particular statute or under the general interlocutory appeal provision in the Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a) (Vernon Supp.2004-05).
Issue one: Receiver
An interlocutory appeal is permitted from an order appointing a receiver. Id. § 51.014(a)(1). Thus, we have jurisdiction to review the June 2, 2004, order with respect to the appointment of the receiver (issue one).
Issue two: Deed of trust lien and security interest
Krumnow, as the trustee, executed a deed of trust lien on trust property to secure payment of legal fees. Krumnow has not asserted the applicability of any statutory provision permitting an interlocutory appeal under these facts. We find that the vacating of this trustee action by the district court does not fall within the parameters for interlocutory review under Section 51.014 of the Civil Practice and Remedies Code. Id. § 51.014(a). Thus, we do not have jurisdiction to review the June 2, 2004, order with respect to the vacating of the deed of trust lien. We dismiss issue two.
Issue four: Plea to the Jurisdiction
An interlocutory appeal from an order denying a plea to the jurisdiction is available by statute only to governmental agencies. Id. § 51.014(a)(8). Thus, we have no jurisdiction to review the June 2, 2004, order with respect to the denial of Krumnow's plea to the jurisdiction. We dismiss issue four.
Issue three: Executor
Krumnow argues that the district court, after signing the March 17, 2003, order denying the application to remove him as executor and trustee and confirming him as executor and trustee, should have transferred the case back to the county court for further proceedings consistent with its ruling because the contested issue had been resolved. He argues that ...
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