Opinion
No. 04-16-00504-CV
03-07-2018
IN RE ESTATE OF Alvilda Mae AGUILAR, Deceased
MEMORANDUM OPINION
From the Probate Court No. 2, Bexar County, Texas
Trial Court No. 2012-PC-2802
Honorable Tom Rickhoff, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Irene Rios, Justice DISMISSED FOR LACK OF JURISDICTION IN PART; AFFIRMED IN PART
This appeal arises from two probate court orders entered by Bexar County Probate Court No. 2 on May 27, 2016 and July 13, 2016. On appeal, appellant Anthony C. Aguilar challenges whether the probate court had subject matter jurisdiction to enter the orders. Anthony also contends that assuming the probate court had subject matter jurisdiction to enter the orders, the probate court abused its discretion in entering the May 27, 2016 order because the order violated his due process rights. Additionally, Anthony asserts the probate court erred in entering the July 13, 2016 order because it failed to find Anthony to be a vexatious litigant. We hold the probate court had jurisdiction to enter both orders. However, because the May 27, 2016 order is not a final, appealable order, this court does not have jurisdiction to consider an appeal of that order. With regard to the July 13, 2016 order, we affirm.
Many of these same issues have been raised by Anthony and his brother, Michael Aguilar, in a companion appeal, Cause No. 04-16-00503-CV, In the Estate of Ramiro Aguilar, Jr. Deceased.
BACKGROUND
This dispute originates from a probate matter that has come before our court multiple times. The following sets forth the factual and procedural history of the case necessary to place the orders being appealed in context.
See In re Estate of Aguilar, No. 04-16-00382-CV, 2017 WL 4158090 (Tex. App.—San Antonio Sept. 20, 2017, pet. denied) (mem. op.); In re Estate of Aguilar, No. 04-16-00250-CV, 2016 WL 3944817 (Tex. App.—San Antonio July 13, 2016, no pet.) (mem. op.) (per curiam); In re Estate of Aguilar, 521 S.W.3d 389 (Tex. App.—San Antonio 2017, no pet.); In re Estate of Aguilar, 492 S.W.3d 807 (Tex. App.—San Antonio 2016, pet. denied); In re Aguilar, No. 04-16-00027-CV, 2016 WL 402292 (Tex. App.—San Antonio Feb. 3, 2016, orig. proceeding) (per curiam); In re Estate of Aguilar, 435 S.W.3d 831 (Tex. App.—San Antonio 2014); In re Estate of Aguilar, No. 04-13-00368-CV, 2014 WL 631285 (Tex. App.—San Antonio Feb. 19, 2014, pet. denied) (mem. op.); In re Aguilar, No. 04-13-00425-CV, 2013 WL 4501435 (Tex. App.—San Antonio Aug. 21, 2013, orig. proceeding) (mem. op.).
Three siblings — Anthony, his brother Michael, and their sister, Margaret Morales — have been involved in ongoing litigation since the death of their mother, Alvilda Mae, who passed away in the summer of 2012 approximately a month after her husband, Ramiro. On September 17, 2012, Alvilda's and Ramiro's wills were admitted to probate in Bexar County Probate Court No. 2, and Morales was appointed independent executrix of both of their estates.
On December 9, 2015, Morales filed an Account for Final Settlement and a Petition for Declaratory Judgment. In her petition, Morales sought to be discharged from any liability involving matters relating to the administration of Alvilda's estate. On January 27, 2016, following a hearing on the final accounting, the probate court rendered an Order Approving Final Account.
In 2016, Anthony and his brother (hereinafter, "the Aguilars") began filing a series of lawsuits in both Bexar County and El Paso County against their sister and her attorneys as well as other individuals involved in the administration of the estate. Pertinent to this appeal, on February 22, 2016, the Aguilars filed a Counterclaim and Third-Party Claim in Bexar County Probate Court No. 2, naming Morales and her attorneys, William Leighner and Arthur Bayern, as defendants. In that pleading, the Aguilars alleged Morales hid estate assets, and they sought a constructive trust on the attorney's fees paid to Leighner and Bayern. The brothers also filed litigation in the 384th District Court of El Paso County, again naming Morales, her attorneys, and other individuals involved in the administration of the estate as defendants.
Thereafter, on March 3, 2016, Morales filed her First Amended Petition for Declaratory Judgment in the Bexar County probate court. The Aguilars then filed a motion to recuse Judge Tom Rickhoff, who was presiding over the probate proceeding. On March 25, 2016, Morales filed a motion pursuant to Chapter 11 of the Texas Civil Practice and Remedies Code, seeking to declare Anthony a vexatious litigant and to require him to furnish security for costs and a pre-filing order. On May 21, 2016, Judge David Peeples denied the Aguilars' recusal motion and entered a written order on May 27, 2016. Thereafter, the Aguilars attempted to appeal the probate court's order denying the recusal motion. We ultimately dismissed that appeal for lack of jurisdiction. See In the Estate of Aguilar, No. 04-16-00382-CV, 2017 WL 4158090, at *4-*5 (Tex. App.—San Antonio Sept. 20, 2017, no pet.) (mem. op.).
Presiding Judge Guy Herman assigned Judge David Peeples to hear the recusal motion.
On June 7, 2016, Bexar County Probate Court No. 2 entered an order transferring the El Paso lawsuit to the probate court for further proceedings. That same day, the Bexar County probate court granted Morales's motion seeking to declare Anthony a vexatious litigant. Morales then filed a motion to dismiss pursuant to section 11.056 of Texas Civil Practice and Remedies Code, arguing the counterclaim filed by the Aguilars against her should be dismissed because Anthony failed to furnish security as ordered by the probate court in its June 7, 2016 order declaring Anthony a vexatious litigant. See TEX. CIV. PRAC. & REM. CODE § 11.056 (West 2017). Thereafter, the probate court granted Morales's section 11.056 motion by order dated July 13, 2016. This appeal followed.
ANALYSIS
On appeal, Anthony raises ten separate issues challenging the probate court's May 27, 2016 and July 13, 2016 orders. For the purposes of clarity, we have restated Anthony's complaints as follows: (1) whether the probate court had subject matter jurisdiction to enter the orders; (2) assuming the probate court had subject matter jurisdiction, whether it abused its discretion in entering the May 27, 2016 order because it failed to call Judge Rickhoff as a material witness and the order violated Anthony's due process rights; and (3) assuming the probate court had subject matter jurisdiction, whether it erred in entering the July 13, 2016 order because it failed to find Anthony to be a vexatious litigant.
Probate Court's Jurisdiction (Issues 1 , 2 , 3 , 5 , 6 , and 7)
In six issues on appeal, Anthony contends the probate court did not have subject matter jurisdiction to enter the May 27, 2016 order denying his recusal motion and the July 13, 2016 order dismissing the claims he and his brother filed against Morales. Specifically, Anthony contends the probate court lacked subject matter jurisdiction because the estate was closed at the time the orders were entered.
Standard of Review and Applicable Law
"Probate courts are courts of limited jurisdiction." Stauffer v. Nicholson, 438 S.W.3d 205, 213 (Tex. App.—Dallas 2014, no pet.). It is well-established that "[s]ubject matter jurisdiction is essential to a court's authority to decide a case." Id. at 213-14 (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000) and Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,443 (Tex. 1993)). "Whether a court has subject matter jurisdiction is a question of law[,]" and we review questions of law de novo. Id. at 214; see In the Matter of Estate of Lindsay, No. 08-14-00232-CV, 2017 WL 4324973, at *1 (Tex. App.—El Paso Sept. 29, 2017, no pet.) (mem. op.).
This court has recognized that "[t]he jurisdiction of a probate court attaches at the time an application for the probate of a will is filed." In re Blankenship, 392 S.W.3d 249, 257 (Tex. App.—San Antonio 2012, no pet.). "Once the probate court's jurisdiction attaches, it continues until the estate is closed." Id. Relevant to this case, section 405.004 of the Texas Estates Code provides that an independent executrix, such as Morales, may close the independent administration of an estate by filing with the court a closing report or a notice of closing the estate:
when all of the debts known to exist against the estate have been paid, or when they have been paid so far as the assets in the independent executor's possession will permit, when there is no pending litigation, and when the independent executor has distributed to the distributees entitled to the estate all assets of the estate, if any, remaining after payment of debts....TEX. EST. CODE ANN. § 405.004 (West 2014).
Application
Here, the probate court's jurisdiction attached when the application to probate Alvilda's will was filed in Bexar County Probate Court No. 2 on August 31, 2012. See In re Blankenship, 392 S.W.3d at 257. Anthony contends, however, that the estate was closed before the probate court entered the May 27, 2016 and July 13, 2016 orders. We disagree for the reasons explained in our recent opinion, In the Estate of Aguilar. See 2017 WL 4158090, at *1-*3. In the prior appeal, the Aguilars appealed three orders entered by the probate court. Id. at *1. Just as in the instant appeal, the Aguilars asserted the estate was closed based on the following events: (1) the entry of the Order Approving Final Account on January 27, 2016; (2) the complete distribution of the estate's assets to each of the beneficiaries as evidenced in Leighner's letter to the probate court dated February 5, 2016; and (3) the inclusion of the "Mother Hubbard" clause in the probate court's June 7, 2016 order declaring Anthony a vexatious litigant. See id. at *1-*3.
In addressing each of these events, we first held the entry of the Order Approving Final Account did not operate as an event that closed the estate because it did not constitute either a closing report or a notice of closing of the estate. Id. at *2; see TEX. EST. CODE ANN. § 405.004 (stating independent executrix may close estate by filing closing report or notice of closing estate). In reaching this holding, we noted the order specified additional actions that needed to be accomplished to achieve final settlement and the closing of the estate. 2017 WL 4158090, at *2. We further noted the order recognized Morales's petition for declaratory judgment remained pending and nothing in our record indicated the probate court had entered an order disposing of the claims asserted in Morales's petition. Id.; see TEX. EST. CODE ANN. § 405.004 (identifying when an independent executrix may close an estate, specifically stating when there is no pending litigation). Similarly, nothing in the appellate record in this appeal indicates the probate court has entered an order disposing of the claims asserted in Morales's petition. See 2017 WL 4158090, at *2. Accordingly, we hold our decision in the prior appeal controls, compelling us again to hold the Order Approving Final Account does not constitute an event that closed the estate. See id.
Turning to Anthony's argument that the complete distribution of the estate's assets to each of the beneficiaries constituted an event that closed the estate, we also hold our previous decision controls. Id. at *2-*3. In our previous opinion, the Aguilars asserted — just as Anthony does here — that Leighner's letter to the probate court dated February 5, 2016 constituted evidence that all the assets in the estate had been distributed to the beneficiaries. Id. at *3. However, upon reviewing the letter, we noted the letter did not contain any assertions that a "complete distribution" had been made. Id. We also noted that Morales's Account for Final Settlement did not indicate all distributions had been made, and, as previously stated, the probate court's Order Approving Final Account contemplated additional steps needed to be taken before the closing of the estate. Id. Accordingly, in absence of evidence establishing that a complete distribution of the estate's assets has been made, we again hold the estate was not closed. See id.
As to Anthony's final contention that the "Mother Hubbard" clause contained in the probate court's June 7, 2016 order declaring Anthony a vexatious litigant constituted an event that closed the estate, we again hold our previous decision controls. Id. According to Anthony, the clause contained in the June 7, 2016 order constituted the closing of the estate because the clause specifically stated "[a]ll other relief requested, be and hereby is Denied," signaling the finality of the probate proceedings. As we noted in our prior opinion, however, "[t]he standard Mother Hubbard clause is used in interlocutory orders so frequently that it cannot be taken as any indication of finality." Id. (quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001)). We further explained the probate court's order addressed only Morales's motion seeking to declare Anthony a vexatious litigant, and thus, it did not constitute a final order with respect to any of the other outstanding parties or claims involved in the probate proceedings. Id. Therefore, for those same reasons, we again hold the "Mother Hubbard" clause contained in the June 7, 2016 order declaring Anthony a vexatious litigant does not constitute an event that closed the estate. See id.
Based on the foregoing, we hold the events outlined above do not constitute events that closed the estate. See id. at *1-*3. Moreover, nothing in the appellate record in this appeal affirmatively demonstrates the estate was closed when the probate court entered the May 27, 2016 and July 13, 2016 orders. See TEX. EST. CODE ANN. § 405.004 (detailing independent executrix may file a closing report or notice of closing to close estate). Accordingly, because the probate court had subject matter jurisdiction to enter the May 27, 2016 and July 13, 2016 orders dismissing the Aguilars' claims against Morales, we overrule Anthony's issues on appeal that challenge the probate court's subject matter jurisdiction. See Stauffer, 438 S.W.3d at 213; Blankenship, 392 S.W.3d at 257-58.
May 27 , 2016 Order (Issues 8 , 9 , and 10)
Having addressed Anthony's issues implicating the probate court's jurisdiction, we next turn to Anthony's complaints regarding the May 27, 2016 order. The Aguilars filed their motion to recuse Judge Rickhoff pursuant to section 25.00255 of the Texas Government Code on March 21, 2016. TEX. GOV'T CODE ANN. § 25.00255 (West Supp. 2017). The motion to recuse was denied by Judge Peeples on May 21, 2016 and a written order was subsequently entered on May 27, 2016. In three issues on appeal, Anthony contends the probate court abused its discretion in entering the May 27, 2016 order because it failed to call Judge Rickhoff as a material witness and the order violates his due process rights.
Before addressing the Anthony's challenge to the May 27, 2016 order, we must first consider whether we have jurisdiction to consider any of his complaints. We addressed this same jurisdictional concern in In the Estate of Aguilar. See 2017 WL 4158090, at *4-*5. In that opinion, we noted an appeal generally may be taken only from a final judgment. 2017 WL 4158090, at *4 (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001)). However, "[p]robate 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.'" Id. (quoting De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006)). To determine whether a probate court order is final for purposes of appeal, we first give controlling effect to an express statute if one exists. Id.
Section 25.00255 of the Texas Government Code sets out the requirements for recusal or disqualification of a statutory county court judge. TEX. GOV'T CODE ANN. § 25.00255. Section 25.00256 further provides that, "The denial of a tertiary recusal motion is only reviewable on appeal from final judgment." Id. § 25.00256
As we noted in our prior opinion, a final judgment has not been entered in the underlying proceeding. See 2017 WL 4158090, at *4-*5 (citing Estate of Aguilar, No. 04-16-00655-CV, 2017 WL 603632 (Tex. App.—San Antonio Feb. 15, 2017, no pet.)). Accordingly, Anthony's complaints regarding the May 27, 2016 order denying his motion to recuse are not properly before this court. Thus, each of these challenges — Issues 8, 9 and 10 — are dismissed for lack of jurisdiction. See id.
July 13 , 2016 Order (Issue 4)
Finally, Anthony challenges the July 13, 2016 order, which dismissed the counterclaim the Aguilars filed against Morales in the Bexar County probate court. As stated above, the Aguilars filed a counterclaim and third-party claim against Morales and her attorneys. The record reflects that on June 7, 2016, the probate court declared Anthony a vexatious litigant, ordering him to furnish security for Morales's reasonable expenses in the amount of $150,000.00 on or before June 21, 2016. When that security was not furnished, Morales filed a motion to dismiss pursuant to section 11.056 of Texas Civil Practice and Remedies Code, seeking to dismiss the counterclaim against her. On July 13, 2016, the probate court granted Morales's motion.
"A court shall order the plaintiff to furnish security for the benefit of the moving defendant if the court, after hearing the evidence on the motion, determines that the plaintiff is a vexatious litigant." TEX. CIV. PRAC. & REM. CODE § 11.055(a).
"The court shall dismiss a litigation as to a moving defendant if a plaintiff ordered to furnish security does not furnish the security within the time set by the order." TEX. CIV. PRAC. & REM. CODE § 11.056.
As part of his challenge to the July 13, 2016 order, Anthony attacks the June 7, 2016 order that declared him to be a vexatious litigant. Anthony first asserts the probate court did not have subject matter jurisdiction to enter the underlying June 7, 2016 order. However, as we explained above, a probate court's jurisdiction continues until the estate is closed and there is nothing in the record demonstrating the estate has been closed. We therefore hold the probate court had jurisdiction to enter both the June 7, 2016 order and the July 13, 2016 order. See Blankenship, 392 S.W.3d at 257.
Anthony further asserts the probate court abused its discretion in dismissing his counterclaim against Morales because the underlying June 7, 2016 order that declared Anthony a vexatious litigant and ordered him to deposit security was error. We recognize Anthony raised this argument in In the Estate of Aguilar. See 2017 WL 4158090, at *5. In that opinion, we dismissed his complaint for lack of jurisdiction because there was no evidence the order declaring Anthony a vexatious litigant was final. Id. We noted "that [t]he record in [that] appeal [did] not show Anthony Aguilar failed to post security or that his action was dismissed." Id. at *5. Here, however, the July 13, 2016 order is final for purposes of appeal because it ends a discrete phase of the proceedings declaring Anthony to be a vexatious litigant and dismissing his counterclaim against Morales after he failed to post security. See De Ayala, 193 S.W.3d at 578; see also In the Estate of Aguilar, 2017 WL 4158092, at *5. We therefore will consider Anthony's complaints.
According to Anthony, the probate court erred in declaring Anthony to be a vexatious litigant because it failed to find that Anthony had commenced at least five litigations in the seven-year period immediately preceding the date that Morales filed her vexatious litigant motion. Anthony asserts that although he had initiated eight actions — recognizing the filings of his lawsuits, appeals, and original proceedings — against Morales over a seven-year period, the eight actions comprise three litigations. For support, Anthony relies on section 32.001(d) of the Texas Estates Code, which provides all proceedings incident to a probate proceeding are considered one proceeding for purposes of jurisdiction. See TEX. EST. CODE ANN. § 32.001(d) ("The administration of the estate of a decedent, from the filing of the application for probate and administration, or for administration, until the decree of final distribution and the discharge of the last personal representative, shall be considered as one proceeding for purposes of jurisdiction.").
Chapter 11 of the Texas Civil Practice and Remedies Code addresses vexatious litigants—persons who abuse the legal system by filing numerous, frivolous lawsuits. TEX. CIV. PRAC. & REM. CODE ANN. §§ 11.001-11.056. Under this chapter, one of the requirements necessary for a trial court to find that a plaintiff is a vexatious litigant is that the defendant must show the plaintiff has prosecuted, maintained, or commenced at least five other litigations that have been determined adversely to him within the seven-year period preceding the defendant's motion. Id. § 11.054. We review a trial court's declaration of a vexatious litigant under an abuse of discretion standard. Aubrey v. Aubrey, 523 S.W.3d 299, 309 (Tex. App.—Dallas 2017, no pet.) A trial court abuses its discretion only if it acts in an arbitrary or capricious manner without reference to any guiding rules and principles. Id.
Anthony does not dispute that he initiated at least eight matters against Morales within the seven-year period, and that those matters were determined adversely against him. Rather, Anthony contends the eight matters constitute only three litigations because the matters that concern the same probate proceeding should be considered as one litigation. Section 11.001(2) of the Texas Civil Practice and Remedies Code defines "litigation" as meaning "a civil action commenced, maintained, or pending in any state or federal court." TEX. CIV. PRAC. & REM. CODE ANN. § 11.001(2). The statute does not specify that matters involving the same case should be considered one litigation, and we decline to do so. See id; see also Restrepo v. All. Riggers & Constructors, Ltd., No. 08-15-00348-CV, 2017 WL 4216249, at *17 (Tex. App.—El Paso Sept. 22, 2017) (mem. op.) (considering three interlocutory appeals involving the same case as three separate litigations and three original proceedings involving the same case as three separate litigations). Here, it is undisputed Anthony initiated eight matters — comprising civil actions, appeals, and original proceedings — against Morales within the seven-year period preceding the filing of Morales's vexatious litigant motion, and each of those matters were determined adversely against him. See Restrepo, 2017 WL 4216249, at *17; see also Retzlaff v. GoAmerica Commc'ns Corp., 356 S.W.3d 689, 700 (Tex. App.—El Paso 2011, no pet.) (counting involuntary dismissals and mandamus actions toward total litigations required to satisfy second prong of section 11.054(1)(A)). Accordingly, we hold the probate court did not abuse its discretion in finding Anthony to be a vexatious litigant, and we overrule Anthony's final issue on appeal.
CONCLUSION
For the reasons stated above, the appeal of the May 27, 2016 order is dismissed for lack of jurisdiction, and the July 13, 2016 order is affirmed.
Marialyn Barnard, Justice