Jonathan B. Shoebotham, Abe Dunn, Houston, TX, FOR APPELLANT
Joe G. Roady, Margaret G. Mirabal, Celia Nathan, Houston, TX, FOR APPELLEE
Charles Price, Associate Justice
Appellants Lillian Taylor Sobel and Saul Taylor appeal from a pre-trial protective order by the District Court regulating control of certain documents pursuant to a motion for Protection of Documents. They also appeal the provision of that same order which enjoined the payment by appellants during the pendency of trial of attorney fees exceeding $25,000.00 in connection with the defense of the case from the assets of the Eva Spero Estate. Appellants contend that both provisions of the order constitute a temporary injunction that was improperly granted for failure to comply with the Texas Rules of Civil Procedure for injunctions. We hold that the order relating to the protection of documents is not an appealable temporary injunction, but rather is a non-appealable pre-trial protective discovery order. We further hold the trial court erroneously granted a temporary injunction for nonpayment of attorney's fees without compliance with Tex. R. Civ. P. 682, 683 and 684.We dissolve that temporary injunction.
This suit was filed by in District Court by appellee Dr. Irving Taylor against appellants Lillian Taylor Sobel and Saul Taylor, individually, and as co -- trustees of the Eva Spero Trust and as Independent Co-Executors of the Eva Spero Estate. Appellee also sued attorney Abe Dunn and Freda Beier, neither of whom is involved in this appeal. Appellee Irving Taylor, appellants Lillian Taylor Sobel and Saul Taylor and Freda Beier are the children of Eva Spero, deceased. Lillian Taylor Sobel and Saul Taylor were co-trustees of a trust known as the Eva Spero Trus which terminated on her death of August 27, 1975, and are also Independent Co -- Executors of the Estate of Eva Spero, deceased.
Appellants were sued for alleged breaches of fiduciary duties owed to appellee while appellants were in control of finances and property of their mother during her lifetime under a Power of Attorney and Trust Instrument. Appellee claims appellants were guilty of fraud, breaches of fiduciary duties and self -- dealing while acting in their capacities as attorneys in fact and trustees for Eva Spero during her lifetime. Appellee seeks an accounting and asks for actual and exemplary damages, and also seeks rescission of a June 30, 1975, Equalization Agreement between the parties executed during the lifetime of Eva Spero. Appellee additionally alleges breach of fiduciary duties by appellants as Independent Co-Executors and asks for actual and exemplary damages for these actions as well as an accounting. He does not seek removal of appellants as Independent Co-Executors.
Appellants contend the portions of the order appealed from constitute a temporary injunction and was granted in response to the appellee's filing of a Motion For The Protection Of Documents and Motion for Order Directing Non-Payment Of Funds Out Of The Estate. The documents referred to in the appellee's protective motion and the trial court's order are various documents formerly in the custody and control of appellants which were produced pursuant to an order of the trial court for the purpose of inspection and copying by appellee for a period of 45 days.
Hearing was held on September 21, 1981, on Defendant's (Appellant's) Motion To Require Return Of Documents, Plaintiff's (Appellee's) Motion For Protection of Documents and Motion For Order Directing NonPayment Of Funds Out Of Estate as well as appellant's responses to appellee's motions. The portions of the order from which appeal has been perfected read as follows:
2. Defendants Lillian Taylor Sobel and Saul Taylor are hereby enjoined, pending trial on the merits or further orders of this Court, from disturbing the present order of such documents and are further directed to make such documents available to the attorney for the Plaintiff upon reasonable notice. The attorneys for the Defendants are directed to maintain the documents in question in their offices in their present order, and to maintain a log reflecting the removal of any documents from the file, the identity of the person removing same, the identity of the documents so removed and the dates the same are removed from and returned to the file.
3. Defendants Lillian Taylor [sic] and Saul Taylor are further enjoined, pending trial on the merits or further orders of this Court, from paying attorney's fees incurred by them in connection with the defense of this case from the assets of the estate should such attorney's fees in the aggregate exceed $25,000.
In his ninth point of error, appellants assert the trial court did not have jurisdiction to issue the order complained of because the order related to matters incident to the Estate of Eva Spero. Appellants contend that under Tex. Prob. Code Ann. § 5 (c) and (d) (Vernon 1980) the issuance of such order was within the exclusive jurisdiction of Probate Court Number 3 of Harris County in which the administration of the Estate of Eva Spero is still pending. This point is first raised on appeal by appellant is fundamental error. Tex. Prob. Code Ann § 5 (c) and (d) (Vernon 1980) provide in pertinent part:
(c) In those counties where there is a statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding probate, administrations, guardianships, and mental illness matters shall be filed and heard in such courts and the constitutional county court, rather than in the district courts, unless otherwise provided by the legislature, and the judges of such courts may hear any such matters sitting for the judge of any of such courts... (emphasis added)
(d) All courts exercising original probate jurisdiction shall have the power to hear all matters incident to ...