From the County Court at Law No. 1, Webb County, Texas Trial Court No. 2010-PB4-000054 Honorable Alvino (Ben) Morales, Judge Presiding From the County Court at Law No. 2, Webb County, Texas Trial Court No. 2010-PB4-000096 Honorable Alvino (Ben) Morales, Judge Presiding
The opinion of the court was delivered by: Catherine Stone, Chief Justice
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Marialyn Barnard, Justice Rebeca C. Martinez, Justice
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
This appeal arises from a tragic vehicular accident in which Pedro Arizola, Sr.'s son and grandson, Manuel and Romen Arizola, were killed. Pedro Sr. appeals numerous orders entered in two probate proceedings. His complaints generally concern the appointment of the administrators, the alleged disqualification of the administrators' attorney, the denial of discovery, and the ratification of a settlement.
We affirm the trial court's orders: (1) appointing the administrators; (2) denying the motions to remove the administrators; (3) denying the motions to disqualify the administrators' attorney; and (4) denying the motions to set aside an employment contract. We reverse the trial court's orders denying the motions to compel discovery and granting the motions to ratify the settlement, and we remand the cause to the trial court for further proceedings on those motions.
On July 3, 2010, Robert Fergason was driving a tractor trailer owned by Tutle & Tutle Trucking, Inc., when he crossed a median, struck an oncoming car, and killed Manuel Arizola, his girlfriend, Joanna Sandoval, and their son, Romen Arizola. The accident also left Manuel's sister, V.A., permanently injured and in need of lifetime institutional care. At the time of the accident, Manuel was twenty-one-years-old, V.A. was thirteen, and Romen was eleven months.
Pedro Sr. is Manuel's father and Romen's grandfather. Pedro Sr. is also V.A.'s biological father; however, his parental rights to V.A. were terminated over a year prior to the accident. The parental rights of V.A.'s biological mother also were terminated. At the time of the accident, V.A. was living with Manuel.
B. Probate and Liability Proceedings
On July 14, 2010, Manuel's brother, Rogelio Arizola, filed an application for letters of administration in Webb County. Rogelio's application did not list Pedro Sr. as one of Manuel's heirs. The application was properly served by posting citation. Manuel's mother, Marisa Garcia, signed a waiver and renunciation of right to letters of administration.
On July 19, 2010, Rogelio filed an application in Bexar County seeking to have David G. Balmer appointed as the permanent guardian of V.A.'s estate. Rogelio's older brother, Pedro Jr., signed a waiver and renunciation of the right to be appointed guardian. Balmer was subsequently appointed as V.A.'s permanent guardian.
On July 26, 2010, the Webb County court signed an order appointing Rogelio as administrator of Manuel's estate. The court also signed an order ratifying an employment contract entered into on July 7, 2010, by Rogelio, on behalf of Manuel's estate, and the "Law Offices of Hernandez and Castillo, P.C., Law Offices of John R. Solis, and Guerra and Mask."
Manuel's estate, Romen's estate, V.A., and others sued Tutle & Tutle in La Salle County District Court. Before trial, the parties discussed settlement, and a mediation was scheduled. Pedro Sr. was present at the mediation in relation to the wrongful death claim he asserted in connection with Manuel's death. The estates and the ward reached a settlement with Tutle & Tutle. Pedro Sr. did not settle his wrongful death claim.
On November 9, 2010, the Bexar County probate court approved the settlement. On December 1, 2010, Dora Sandoval, Romen's maternal grandmother, filed an application in Webb County for letters of administration, seeking appointment as the administratrix of Romen's estate. Pedro Sr. was listed as an heir in the application, and the application was properly served by posting citation. On December 14, 2010, the Webb County court signed an order appointing Dora as administratrix. On December 15, 2010, the La Salle County District Court signed: (1) a final judgment approving the settlement; and (2) an order dismissing with prejudice the claims of the estates and the ward against Tutle & Tutle. Rogelio and Dora did not obtain the Webb County court's approval of the settlement agreement before the La Salle County District Court entered its judgment and dismissal order; however, they subsequently filed motions requesting the Webb County court to ratify the settlement.
C. Pedro Sr.'s Appeals of Probate Orders and Liability Settlement
Pedro Sr. filed appeals in the La Salle County, Bexar County, and Webb County proceedings, challenging the settlement, the appointments, and other orders.*fn1 Pedro Sr. also filed numerous motions in each of the Webb County proceedings, including a motion to compel discovery, a motion to remove Rogelio and Dora as administrators, a motion to disqualify Balmer as Rogelio and Dora's attorney, a motion to set aside the employment contract retaining the attorneys to represent the estates in the La Salle County proceeding, and an objection to the ratification of the settlement.
With regard to Pedro Sr.'s restricted appeal of the Webb County court's order appointing Rogelio as administrator of Manuel's estate, we dismissed the appeal for lack of jurisdiction, holding the order was interlocutory and not appealable. In re Estate of Arizola, No. 04-11- 00059-CV, 2011 WL 1852969 (Tex. App.--San Antonio May 11, 2011, no pet.) (mem. op.). This court also dismissed the appeal from the Webb County proceeding involving Romen's estate. In re Estate of Arizola, No. 04-11-00066-CV, 2011 WL 2150346 (Tex. App.--San Antonio June 1, 2011, no pet.) (mem. op.).
On December 16, 2011, the Webb County court held a hearing on Pedro Sr.'s pending motions and on the motions to ratify the settlement. With regard to the motions to compel discovery, Pedro Sr.'s attorney argued that Dora and Rogelio had been served with interrogatories, a request for production, and notice of deposition. Pedro Sr.'s attorney argued the discovery was necessary with regard to the terms of the settlement and whether the settlement was in the estates' best interests. Rogelio and Dora's attorney responded that Pedro Sr. was represented at the mediation with regard to his personal wrongful death claim and had all of the information he needed. Rogelio and Dora's attorney also argued that the administrators had the sole authority to settle the estates' claims; therefore, Pedro Sr., as an heir of the estate, was not entitled to discovery in relation to the settlement.
D. Allegations of Barratry and Conflict
With regard to the motion to set aside the employment contract retaining counsel to represent the estates in the La Salle County proceeding, Pedro Sr.'s attorney argued that the employment contract was a product of barratry referring to an affidavit of Pedro Jr. for support. Dora and Rogelio's attorneys responded that Pedro Jr. had renounced his affidavit and had pointed out to Pedro Sr.'s attorney, who drafted the affidavit, that it contained untruthful statements. Pedro Sr.'s attorney admitted during the hearing that he no longer represented Pedro Jr.
In relation to his motion to disqualify Balmer as the attorney representing Dora and Rogelio as administrators in the Webb County proceedings, Pedro Sr.'s attorney argued that Balmer had a conflict of interest because he also was the guardian of V.A.'s estate. With regard to his motion to remove Dora and Rogelio as administrators, Pedro Sr.'s attorney argued that they failed to obtain the Webb County court's approval of the settlement before the judgment was entered in the La Salle County proceeding. In his testimony at the hearing, Balmer clarified that he did not represent the estates in the La Salle County proceeding; instead, the estates had independent counsel. Balmer further testified that the Webb County court's prior approval of the settlement was not required since the court could ratify the settlement. Finally, Balmer noted that even if a conflict existed, the clients could waive the conflict.
At the end of the hearing, the trial court took all of the motions under advisement. With regard to the motion to ratify, the following discussion occurred at the conclusion of the hearing:
MR. RODRIGUEZ [Pedro Sr.'s counsel]: Okay. Hold on, Judge. I want to make sure that we're -- I don't want to get an order ratifying it, Judge. Because if the Court is going to take up the ratification --
THE COURT: I'm going to take it up on another day. Didn't ...