Kuhr v. Smith

• Court: Texas Court of Appeals
• Writing for the Court: Melissa Goodwin, Justice
• Decision Date: 29 April 2022
• Docket Number: 03-20-00425-CV,03-21-00114-CV,03-20-00416-CV,03-20-00583-CV
• Citation: Kuhr v. Smith, 03-20-00416-CV, 03-20-00425-CV, 03-20-00583-CV (Tex. App. Apr 29, 2022)
• Parties: McKenna Lynn Kuhr, Appellant v. Ronald Smith, Appellee

McKenna Lynn Kuhr, Appellant v. Ronald Smith, Appellee

Nos. 03-20-00416-CV, 03-20-00425-CV, 03-20-00583-CV, 03-21-00114-CV

Court of Appeals of Texas, Third District, Austin

April 29, 2022

FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY NOS C-1-PB-16-000575 & C-1-PB-19-001840 THE HONORABLE GUY S HERMAN, JUDGE PRESIDING

Before Justices Goodwin, Baker, and Smith

MEMORANDUM OPINION

Melissa Goodwin, Justice

In this Court's cause numbers 03-20-00416-CV, 03-20-00425-CV, and 03-20-00583-CV, which have been consolidated for briefing and review, McKenna Lynn Kuhr challenges the probate court's orders granting Ronald Smith's traditional motions for summary judgment on bill of review and presenting will for probate and its order admitting the will of Terry Smith (Decedent) to probate as a muniment of title only. In cause number 03-21-00114-CV, Kuhr appeals from the probate court's order on her motion to suspend enforcement of the order admitting the will to probate and to set appellate security.

In its order granting summary judgment on bill of review, the probate court vacated portions of its order closing administration of Decedent's estate. In the estate proceeding, the probate court's summary judgment ordered that the will was timely presented and after a bench trial, the probate court ordered the will to be admitted to probate as a muniment of title only.

Because we conclude that we do not have jurisdiction over this Court's cause number 03-21-00114-CV, we dismiss that appeal. Because we conclude that the probate court did not err in concluding that the will was timely presented for probate and that Ronald Smith (Smith) was not in default, we conclude that the probate court did not err in admitting the will to probate as a muniment of title only and affirm the challenged orders in the consolidated appeals.^[1]

BACKGROUND^[2]

On July 20, 2014, Decedent died leaving behind her spouse Smith and her only child Kuhr from another relationship. Decedent's October 27, 2005 will (the will) designated Smith as the sole beneficiary.^[3]

In early 2016, the Bank of New York Mellon (the Bank), a secured creditor and lienholder on the home owned by Decedent and Smith, sought to foreclose on the home and filed an application for letters of administration and to declare heirs, initiating the probate court's cause number C-1-PB-16-000575 (the estate proceeding). In May, the court-appointed attorney ad litem for the estate filed an objection to a scheduled hearing with a copy of the will. In the objection, the attorney ad litem states:

[She] TODAY was provided a copy of a will for [Decedent] (SEE EXHIBIT A) identifying her heirs and also listing her family as her choice for her estate representatives. Specifically she gave her property to her husband 100%, and appointed him as the Estate representative. . . .

Based on this new information and that the Attorney for the Bank/Applicant is in possession of the original will, the Ad Litem believes this proceeding and application pending MUST be amended. There is a will, and the decedent did identify her heirs and whom should receive her estate. It would be inappropriate to ignore this will, and proceed to appoint the current Bank/Applicant who desires to foreclose on the property and be in charge of the Estate, until and unless the heirs under the will waive that right, and also if the proceeding remains a heirship proceeding they also are entitled to seek appointment.

. . . It appears that the family members, especially the Decedent's husband, as surviving spouse is confused over the legal probate process.

About the same time that the attorney ad litem filed her objection, the Bank amended its application, sought to probate the will, and attached a copy of the will to its application. At that point, the Bank believed that it had the original of the will. In July, after learning that it did not possess the original, the Bank filed a second amended application for letters of dependent administration, representing that to the best of its "knowledge, Decedent may have left a valid Last Will and Testament dated October 27, 2005," that a copy of the will was filed with the court in May 2016, that the Bank was unaware of the whereabouts of the original or if it still existed, and that the "Administrator will either Probate the Will or file an Application to Determine Heirship."

Following a hearing in August, the probate court found that administration of the estate was needed, granted letters of dependent administration, and ordered the parties to schedule a hearing to determine Decedent's heirs or to probate the will:

It is further ORDERED that a determination of heirship hearing or a Will probate hearing shall be scheduled by the parties for a date not later than November 18, 2016, and that, if a determination of heirship is being sought, the attorney for the Dependent Administrator shall submit an heirship setting request form to the Court no later than November 1, 2016 and shall have completed before that time all requirements to be able to completely fill out the request.

It is further ORDERED that the Dependent Administrator shall file an application for determination of heirship or an application to probate the Decedent's Will and shall complete all necessary documents in sufficient time prior to the hearing so that the Court can hear the application by the date stated above.

A hearing on heirship or to probate the will, however, had not occurred when in January 2018, the probate court signed an order that approved the account for final settlement, discharged the dependent administrator, and closed the administration of the estate. In the January 2018 order, the probate court decreed that there was "no property remaining in the Estate." The Bank had completed the foreclosure of the home.

Decedent at the time of her death, however, owned assets besides the home, including non-producing mineral interests and jewelry.^[4] Smith signed leases concerning the mineral interests with an oil and gas company (the company) after Decedent's death, including a lease in September 2016. The company made bonus payments to Smith in February and March 2018 but notified Smith around August 2019 that the will had not been admitted to probate during the estate proceeding and withheld further payments. In response, Smith filed a petition for bill of review in September 2019, initiating the probate court's cause number C-1-PB-19-001840 (bill-of-review proceeding). Smith sought to revise and correct the probate court's January 2018 order in the estate proceeding "so that the mineral interest can be probated." See Tex. Est. Code § 55.251 (authorizing interested person within two years to file bill of review to have order or judgment revised and corrected on showing of error in order or judgment in probate proceeding). In October 2019, Smith filed the original of the will and an application to admit the will to probate as a muniment of title in the estate proceeding. See id. § 257.001 (authorizing court to admit will to probate as muniment of title if court is satisfied that will should be admitted to probate and that testator's estate does not owe unpaid debt other than debt secured by lien on real estate or finds for another reason that there is no necessity for administration of estate). And in January 2020, Smith filed an amended petition in the bill-of-review proceeding, seeking to revise and correct the probate court's January 2018 order and to reopen the estate proceeding to allow Smith to attempt to probate the will as a muniment of title.

Kuhr contested Smith's application to probate the will in the estate proceeding and his petition in the bill-of-review proceeding. In both proceedings, Smith filed traditional motions for summary judgment, Kuhr filed responses, and the parties filed summary judgment evidence. In July 2020, the probate court granted Smith's motions in both proceedings. In its summary judgment order in the bill-of-review proceeding, the probate court found that undistributed property remained in the estate, concluded there was substantial error in its January 2018 order "in that it states 'there is no real property remaining in the estate' and 'there is no property remaining in the Estate, '" granted Smith's petition for bill of review, and vacated its January 2018 order to the extent of its erroneous statements. In its summary judgment order in the estate proceeding, the probate court determined as a matter of law that the will was presented for probate on or before the fourth anniversary of Decedent's date of death. See id. § 256.003(a) (generally requiring will to be presented for probate before fourth anniversary of testator's death). The evidence established that Decedent died in July 2014, that the Bank filed an application to probate the will in May 2016, and that the Bank and the attorney ad litem filed copies of the will in May 2016.

A bench trial in the estate proceeding occurred in September 2020 on Smith's application to admit the will to probate as a muniment of title. The witnesses included Smith, ^[5]who testified that:

• the Bank filed an application to probate the will in May 2016;

• Smith did not consult with an attorney about probating the will or Decedent's estate before the administration of the estate closed in January 2018;

• Smith "believed" that the will had been probated during the estate proceeding^[6];

• Decedent owned mineral interests and jewelry when she died;

• Smith negotiated leases on the mineral interests after she died and received two bonus payments in February and March 2018;

• in 2019, Smith became aware that the will had not been probated when he "got a phone call" from the company that "they realized that [the will] had never been

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