Court of Appeals of Texas, Fourth District, San Antonio
the Probate Court No. 2, Bexar County, Texas Trial Court No.
2012-PC-2800 Honorable Tom Rickhoff, Judge Presiding.
Angelini, Justice Luz Elena D. Chapa, Justice Irene Rios,
appeal arises from six probate court orders,  which appellants
Anthony C. Aguilar and Michael Aguilar argue Probate Court
No. 2 lacked jurisdiction to enter. Appellants raise
twenty-two issues,  arguing Probate Court No. 2 lacked
jurisdiction to enter the complained-of orders because the
estate was closed at the time the orders were entered.
Appellants argue, in the alternative, the probate court erred
by entering the orders. Because we conclude the complained-of
orders are not properly before this court, we dismiss this
appeal for lack of jurisdiction.
purposes of this appeal, a detailed rendition of the
underlying facts is unnecessary. Accordingly, we provide only
those facts necessary for context.
dispute originally arises from a probate matter between
siblings - appellants and their sister, Margaret Morales.
Their father, Ramiro Aguilar, Jr., died in the summer of
2012. On August 31, 2012, Anthony Aguilar, an attorney, filed
an application on behalf of Morales to probate their
father's will in Statutory Probate Court No. 2 of Bexar
County. On September 15, 2012, Morales retained new counsel.
The will was admitted to probate, and Morales was appointed
independent executrix on September 17, 2012.
December 9, 2015, Morales filed an Account for Final
Settlement and a Petition for Declaratory Judgment with
Probate Court No. 2. On January 27, 2016, following a hearing
on the final accounting, Probate Court No. 2 entered an Order
Approving Final Account, which ordered that outstanding debts
and expenses be paid and the remaining estate property be
distributed prior to Probate Court No. 2's consideration
of Morales's petition for a declaration that she be
discharged and the estate closed.
February 22, 2016, appellants filed a Counterclaim and
Third-Party Claim in Probate Court No. 2 naming as defendants
Morales and attorneys William Leighner and Arthur Bayern.
Appellants also filed litigation in the 384th District Court
of El Paso County naming Morales, Leighner, Bayern, Rene
Pena, and Lillian Eller as defendants, alleging fraud and
breach of fiduciary duty. Bayern and Leighner jointly filed a
motion in the 384th District Court, as well as in Probate
Court No. 2, to dismiss the claims against them as baseless
pursuant to Texas Rule of Civil Procedure 91a. On March 11,
2016, Morales filed a motion to transfer the cause before the
384th District Court to Probate Court No. 2 because the
causes of action were related to the probate proceeding.
Probate Court No. 2 granted the motion and entered an order
transferring the cause to Probate Court No. 2 on June 7,
2016. The following day, the 384th District Court orally
pronounced an order denying Bayern and Leighner's motion
to dismiss pursuant to Rule 91a. Probate Court No. 2 entered
an order on June 9, 2016, setting aside the 384th District
Court's oral pronouncement. Also on June 9, 2016, Probate
Court No. 2 entered an order consolidating the hearings of
the Rule 91a motions filed in Probate Court No. 2 and in the
cause transferred from the 384th District Court. Probate
Court No. 2 granted Bayern's and Leighner's joint
motion to dismiss on June 9, 2016.
on March 3, 2016, Morales filed her First Amended Petition
for Declaratory Judgment. On March 21, 2016, appellants filed
a motion to recuse Judge Rickhoff, which was denied by Judge
David Peeples on May 21, 2016. On March 25, 2016, Morales filed
a motion to declare Anthony Aguilar a vexatious litigant and
require security for costs and a pre-filing order. Probate
Court No. 2 granted the motion, and on June 7, 2016, entered
an order declaring Anthony Aguilar a vexatious litigant.
raise several issues concerning the closing of the estate and
whether Probate Court No. 2 continued to have jurisdiction to
enter orders and award attorney's fees.
of the Estate - Estates Code Section 405
argue Probate Court No. 2 lacked jurisdiction to enter the
complained-of orders because Probate Court No. 2's
January 27, 2016 Order Approving Final Account closed the
estate. Appellants also contend the "final"
distribution of assets closed the estate.
Texas Estates Code provides that an independent executor may
close the independent administration of an estate by filing
with the court a closing report or a notice of closing of the
[w]hen 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).
Approving Final Account
first argue Morales's Account for Final Settlement
operated as a closing report or notice of closing estate, and
therefore, Probate Court No. 2's Order Approving Final
Account closed the estate.
January 27, 2016 order specifies additional actions that must
be accomplished to achieve final settlement and the closing
of the estate. Specifically, Probate Court No. 2 ordered
that the outstanding debts and expenses "shall be
paid" and further ordered that the remaining property
"after payment of all debts and expenses shall be
delivered to the beneficiaries" as directed in the will,
subject to any withholding. Probate Court No. 2 then ordered
that upon distribution of the estate, the court would
consider Morales's petition for a declaration that she
"be discharged and the administration of this [e]state
our review of the docketing statements and the clerk's
record filed in the pending appeals arising from the
underlying cause shows the Independent Executor's
Petition for Declaratory Judgment was pending at the time of
the January 27, 2016 order. Neither the record nor the
docketing statement ...