Wassmer v. Hopper

• Decision Date: 03 December 2014
• Docket Number: No. 08–12–00331–CV.,08–12–00331–CV.
• Citation: Wassmer v. Hopper, 463 S.W.3d 513 (Tex. App. 2014)
• Parties: Laura S. WASSMER and Stephen B. Hopper, Appellants, v. Jo N. HOPPER, Appellee/Cross–Appellant.
• Court: Texas Court of Appeals

463 S.W.3d 513

Laura S. WASSMER and Stephen B. Hopper, Appellants

v.Jo N. HOPPER, Appellee/Cross–Appellant.

No. 08–12–00331–CV.

Court of Appeals of Texas, El Paso.

Dec. 3, 2014.

John C. Eichman, Hunton & Williams, LLP, Dallas, TX, for JPMorgan Chase Bank, N.A.

Michael Alan Yanof, Thompson, Coe, Cousins & Irons, L.L.P., Dallas, TX, for Appellee/Cross–Appellant.

Lawrence Fischman, Mark Charles Enoch, Glast, Phillips & Murray, Dallas, TX, for Appellants.

Before McCLURE, C.J., RIVERA, not participating, and RODRIGUEZ, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice.

Stephen Hopper, Laura Wassmer and their stepmother Jo Hopper bring cross appeals from a summary judgment in a probate proceeding. The decedent, Max Hopper, married Jo Hopper in 1981. During the marriage, they purchased a home on Robledo Drive which they occupied until Max's death on January 25, 2010. Max died intestate. The couple had no children. Max's two children by a prior marriage, Stephen Hopper and Laura Wassmer, were his only heirs. JPMorgan Chase Bank, N.A. was appointed to serve as independent administrator of the estate. At the time of Max's death, the community estate approached $26,000,000. We caution here that the community “estate” is not the same thing as the decedent's “estate,” which would be half of that amount, or $13,000,000. While the issues presented are voluminous, the dispute may be drilled down to whether the heirs can force their stepmother to “buy out” their interest in Robledo¹ to avoid being “unfairly burdened” by Jo's constitutional homestead. As she suggests in her brief, this was a perfect storm.

Procedural Background

Jo filed suit seeking declaratory relief against her stepchildren and Chase. A flurry of filings followed. The heirs sought declaratory relief against their stepmother and Chase while Chase sought a declaratory judgment against Jo. Thereafter, Jo and the heirs filed competing motions for partial summary judgment seeking certain declarations. Simply stated, Jo sought the following declarations:

(1) That Robledo was community property;

(2) That immediately upon Max's death, Jo retained in fee simple title her undivided one-half community interest in Robledo while Max's undivided one-half community interest in the home passed to his children;

(3) That since Robledo was the community homestead, and since Jo elected to maintain the house as her constitutional homestead, she has the exclusive right of use and possession and that the children's interest is subject to her exclusive rights;

(4) That Robledo is not subject to administration, and may not be partitioned as long as Jo maintains it as her constitutional homestead;

(5) That Chase shall not offset Jo's share of the assets being administered by any value attributable to her right of sole use and possession of Robledo and any tangible personal property in connection therewith as a matter of law;

(6) That Jo is entitled to exclusive use, possession and enjoyment of Robledo without interference from the heirs or Chase for the remainder of her life, or until she ceases to occupy the homestead and has affirmatively and deliberately abandoned it;

(7) That Jo has not sought a non-pro rata partition of community property as set forth in § 385 of the Texas Probate Code, nor has she sought a partition of Robledo;

(8) That neither Chase nor the court may partition Robledo between Jo and the estate or the heirs whether under § 380 of the Texas Probate Code or otherwise, without Jo's consent as long as it remains her constitutional homestead, until she either dies or voluntarily abandons the property.

The heirs sought the following declarations:

(1) Chase must seek a partition and distribution of the estate under Texas Probate Code Section 150, since the heirs and their stepmother have not agreed upon distribution of the assets;

(2) A partition of the estate under Section 150 includes the entire community property estate subject to administration and is not limited to a partition of Max's separate property and his one-half interest in community property;

(3) The partition of the entire community property estate subject to administration must include Robledo, and the party that does not receive Robledo should receive assets equal in value to the full fair market value of Robledo;

(4) In the partition and distribution of the estate under Section 150, Robledo should be distributed to Jo, and assets of equal value should be distributed to the heirs; and

(5) The partition of Robledo should be decided in the context of all estate assets that were to have been partitioned and distributed under Texas Probate Code Section 150, and the heirs may not be prejudiced by the Bank's prior unlawful distributions of estate assets.

On January 31, 2012, the court heard the competing motions and entered partial summary judgment orders. At the hearing, counsel for Chase stated, “I'm not sure we need to be here on the issues that are before the Court, but we're here anyway.” The heirs' counsel pointed out that Chase did not have a summary judgment motion pending before the court.

On February 14, 2012, the court entered orders granting and denying declaratory relief, including declarations not specifically requested by the summary judgment motions. It granted Issue Numbers One, Six, and Seven of Jo's motion for partial summary judgment (Robledo was community property; Jo is entitled to exclusive use, possession and enjoyment of Robledo for the remainder of her life, or until she moves or abandons it; and that Jo has not sought partition). The court denied the remainder of the relief Jo sought. It granted Issue Numbers Two and Three in the heirs pleadings (a partition of the estate includes the entire community property estate subject to administration and is not limited to a partition of Max's separate property and his one-half interest in community property; the partition must include Robledo and the party not receiving Robledo should receive assets equal to its fair market value). The court denied the remainder of the relief sought by the heirs. It further declared that Chase may distribute Robledo in undivided interests subject to Jo's homestead rights; that Chase may require the return of some community property previously distributed (“clawback”) if circumstances warranted it; that the return of distributions would be at Chase's discretion; and that the distributions that had already been made were not “unlawful.”

On April 13, 2012, the court heard motions for reconsideration, new trial, clarification, and, alternatively, severance. And on May 18, it entered orders on summary judgment in which the court again granted Issue Numbers One, Six, and Seven of Jo's motion for partial summary judgment (Robledo was community property; Jo is entitled to exclusive use, possession and enjoyment of Robledo for the remainder of her life, or until she moves or abandons it; and that Jo has not sought partition) and denied the remainder of the relief she had sought. This time, it denied all of the relief sought by the heirs.² It declared that Chase could distribute Robledo in undivided interests subject to Jo's homestead rights and the outstanding mortgage, “to-wit 50% to Jo N. Hopper and 25% each to Decedent's two [heirs].” Finally, it reiterated its declarations with regard to Chase.

More filings ensued and on August 15, 2012, the court entered a second revised summary judgment order granting essentially the same relief previously granted. In a separate order, it set out additional declarations:

(1) That the parties would share the expenses of casualty insurance on Robledo, with Jo paying one half and Stephen and Laura each paying one fourth.

(2) That the parties would all be included on the insurance policies and pay for same in the proportion of ownership, with due regard for Jo's homestead rights.

The court granted severance with regard to Chase's claims. This appeal proceeds with regard to the heirs' appeal and Jo's cross-appeal.

HOMESTEAD RIGHTS

The Texas Constitution provides:

On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and occupy the same.

Tex. Const. art. XVI, § 52. These constitutional provisions are also embodied in Texas Probate Code Sections 283 and 284. Tex. Prob.Code Ann. § 283 (When a decedent leaves a surviving spouse, the homestead shall descend and vest in like manner as other real property of the deceased and shall be governed by the same laws of descent and distribution.);³ Tex. Prob.Code Ann. § 284 (homestead shall not be partitioned among the heirs of the deceased during the lifetime of the surviving spouse, or so long as the survivor elects to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased is permitted, under a court order).⁴

When a spouse dies intestate, if a child of the deceased spouse survives and is not a child of the surviving spouse, one-half of the community estate is retained by the surviving spouse, the other one-half passes to the deceased spouse's children or descendants, and the community estate passes charged with the debts against it. See Tex. Prob.Code Ann. § 45(b).⁵ The term “estate” encompasses the real and personal property of a decedent. See Tex. Prob.Code Ann. § 3(1) ; Tex. Gov't Code Ann. § 311.005(4) (West 2013).⁶ At the time of Max's death, the Probate Code provided that upon the creation of an independent administration of a decedent's estate, the entry of the order appointing the independent executor, the filing of an inventory,...