Nadolney v. Taub

• Court: Texas Court of Appeals
• Writing for the Court: John S. Anderson
• Citation: Nadolney v. Taub, 116 S.W.3d 273 (Tex. App. 2003)
• Decision Date: 12 August 2003
• Docket Number: No. 14-02-00158-CV.,No. 14-02-00392-CV.,14-02-00158-CV.,14-02-00392-CV.
• Parties: Frank E. NADOLNEY d/b/a Nadolney Enterprises, Appellant, v. Carolyn C. TAUB, Executrix of the Estate of John Ben Taub, Deceased, Appellee.

116 S.W.3d 273

Frank E. NADOLNEY d/b/a Nadolney Enterprises, Appellant, v. Carolyn C. TAUB, Executrix of the Estate of John Ben Taub, Deceased, Appellee.

No. 14-02-00158-CV.

No. 14-02-00392-CV.

Court of Appeals of Texas, Houston (14th Dist.).

August 12, 2003.

Rehearing Overruled October 23, 2003.

Joseph O. Slovacek, Thomas Michael Pickford, Houston, for appellant.

Joe G. Roady, Stuart G Haynsworth, Houston, for appellee.

Panel consists of Justices ANDERSON, SEYMORE, and GUZMAN.

OPINION

JOHN S. ANDERSON, Justice.

Appellant Frank E. Nadolney d/b/a Nadolney Enterprises brings two appeals in this probate case. In appellate cause number 14-02-00158-CV, Nadolney challenges the following orders: (1) Judge Rory R. Olsen's order recusing himself, and (2) Judge Guy Herman's subsequent orders (a) granting a petition for a bill of review brought by appellee Carolyn C. Taub, Executrix of the Estate of John Ben Taub, Deceased, (b) denying Nadolney's request for a jury trial, and (c) denying Nadolney's request for a continuance. In appellate cause number 14-02-00392-CV, Nadolney challenges (1) an order for disbursal of funds from the registry and (2) an order dismissing, without prejudice, Nadolney's application for payment.¹ In appellate cause number 158, we affirm the recusal order, but reverse the order granting the petition for a bill of review and render judgment denying the petition. Accordingly, we do not address the orders denying a jury trial and denying a continuance. In appellate cause number 392, we affirm.

PROCEDURAL BACKGROUND

In his last will and testament, John Ben Taub appointed his wife, Carolyn C. Taub, as his independent executrix. John also bequeathed to Carolyn, as trustee, the "John Ben Taub Credit Shelter Trust ... the largest amount that can pass free of federal estate tax by reason of the unified credit and state death tax credit allowable...." Other than two small gifts to family employees, John bequeathed the remainder of his estate to Carolyn.²

John died April 13, 2000, and Judge Olsen decreed the will be admitted to probate on May 17, 2000. In the same decree, Judge Olsen named Carolyn as the independent executrix and appointed Nadolney as the appraiser. In July 2000, Nadolney wrote Stuart Haynsworth, the attorney who drafted the will and represented Taub in having the will probated. Nadolney requested a retainer of $35,000.

At the end of August 2000, Nadolney filed a motion requesting the court to require that Taub deposit sufficient funds to secure the expenses of the appraisal. Taub opposed Nadolney's motion, requesting the court to withdraw Nadolney's appointment and appoint Charles Baranski in Nadolney's place. On September 28, 2000, the probate court ordered Taub to pay Nadolney $30,000 directly or pay the amount into the registry of the court. Taub paid the money into the registry on October 19, 2000.

After the court granted at least three extensions, Taub filed a preliminary inventory, and the probate court approved the inventory on January 25, 2001. On February 16, 2001, Taub, in her capacity as a devisee and therefore a "person interested," filed a petition for a bill of review pursuant to Probate Code section 31, seeking the court's assistance to obtain a fair, market-based fee agreement with the court-appointed appraiser (Nadolney) or, "in the preferred alternative," to remove the court's directive that executrix employ an appraiser.³ Attached to the motion were Nadolney's estimate for doing the work along with lower estimates from three other appraisers.

In July 2001, Taub filed a motion to recuse Judge Olsen. She alleged Judge Olsen was not impartial based on (1) his appointment of an appraiser, over Taub's objection, for an estate on which no federal or state taxes would be payable, and (2) the sum of money allocated to the appraiser. On August 22, without a response from Nadolney or a hearing, Judge Olsen recused himself.

On August 29, 2001, Nadolney paid a jury fee. Apparently, Judge Herman attempted to schedule a hearing date on the bill of review on September 21, 2001, but Nadolney was unavailable. By telephone messages the week of September 3, 2001 and by letter dated October 16, 2001, the court informed Nadolney of a hearing to be held October 19, 2001.

On October 19, 2001, Nadolney filed a motion for a continuance, appeared, and announced not ready. The court denied the motion for continuance and conducted a hearing on Taub's bill of review. At the hearing, Taub introduced the federal estate tax return and the order requiring payment or deposit of $30,000. Taub and Haynsworth testified they had not requested the appointment of an appraiser. On cross-examination Haynsworth was asked about a response Haynsworth may have made to Judge Olsen about whether this was a taxable estate. Haynsworth testified, his "answer to whatever inquiry [Judge Olsen] made was that the estate had significant assets of a significant value to be taxable if other situations did not exist." Taub denied Haynsworth had told Judge Olsen the estate was taxable and had substantial real property interests.

Nadolney called Georgia Aikers, staff attorney and court coordinator for Probate Court No. 3. She testified she was present at the hearing when the will was admitted to probate. According to Aikers, when Judge Olsen asked Haynsworth whether the estate was taxable, Haynsworth responded that it was. Aikers also testified Haynsworth told Judge Olsen the estate consisted primarily of real estate, and Judge Olsen appointed an appraiser.

Taub called Haynsworth in rebuttal. Haynsworth testified he had a hearing impairment and could not understand Judge Olsen every time he spoke. Haynsworth testified he understood Judge Olsen to be asking about the total value of the estate. According to Haynsworth, he later made it known to the court the estate was not taxable and the whole purpose of the will as it was constructed was to avoid taxation.

By written orders signed November 6, 2001, the trial court granted Taub's petition for bill of review, denied Nadolney's demand for a jury trial, and denied Nadolney's motion for continuance. In a letter dated the same day, the court referred to the lack of any explanation from Judge Olsen regarding why he appointed an appraiser.⁴ The court also observed appointment of an appraiser made no sense in light of the unlimited marital deduction. The court referred to the fact that, although the estate had property in several counties, the court appointed only one appraiser, contrary to the residency requirement.⁵ Finally, the court observed acceptance and approval of the inventory on January 25, 2001 dispensed with the need for an appraiser.

Nadolney filed a motion for rehearing, a motion for new trial, and a request for findings of fact and conclusions of law. On February 4, 2002, he filed a notice of appeal from the court's November 6, 2001 orders. This appeal is appellate cause number 158.⁶

In the meantime, Taub filed a motion for an order disbursing funds in the court's registry, based on the order granting Taub's petition for bill of review. In a single document, Nadolney filed an application for payment and response to the motion for an order dispersing funds. On February 22, 2002, the trial court heard Taub's motion and Nadolney's application for payment. By bill of exception, Nadolney testified, to a reasonable degree of certainty, $50,000 was the reasonable value of the services he performed for the estate. He further testified he would not have done the work had he not been "ordered" by the court and had there not been a security deposit. Another appraiser testified Nadolney's fee was "extremely reasonable." Finally Nadolney's attorney testified regarding attorney's fees. Taub did not present evidence, but argued there is no authority in the probate code to authorize the deposit.

By written order dated February 22, 2002, the trial court granted Taub's motion and ordered the clerk withdraw from the registry and pay to Taub the $30,000 plus any accrued interest. On March 6, 2002, Nadolney filed his notice of appeal, challenging "the trial court's judgment and orders rendered on February 22, 2002." This appeal is appellate cause number 392.

By written order signed April 3, 2002, the trial court dismissed Nadolney's application for payment without prejudice. The record does not contain a notice of appeal from the April 3, 2002 order. On April 15, 2002, the trial court filed its findings of fact and conclusions of law.⁷

DISCUSSION

Point of Error One: The Bill of Review

In point of error one, Nadolney challenges the trial court's order granting Taub's petition for a bill of review. He contends there was "no evidence" or "insufficient evidence" to support a finding that the trial court's order appointing an appraiser was substantial error, or alternatively, an abuse of discretion. As discussed below, however, the gravamen of Nadolney's complaint is that, even if there was sufficient evidence to support each of the trial court's findings of fact, those findings do not support the only relevant conclusion of law.⁸

Taub's burden of proof on a section 31 bill of review. The purpose of a section 31 bill of review is to revise and correct errors, not merely to set aside decisions, orders, or judgments rendered by the probate court. Jackson v. Thompson, 610 S.W.2d 519, 522 (Tex.Civ.App.-Houston [1st Dist.] 1980, no writ). To prevail on her statutory bill of review, Taub had specifically to allege and prove the trial judge committed substantial error in appointing an appraiser. See Hoover v. Sims, 792 S.W.2d 171, 173 (Tex.App.-Houston [1st Dist.] 1990, writ denied). The errors need not have appeared on the face of the record; but, if not, Taub must have proved the errors at trial by a preponderance of the evidence. See McDonald v. Carroll, 783 S.W.2d 286, 288 (Tex.App.-Dallas 1989, writ denied).

Standard of appellate review.

In the present case, Judge Herman...