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In re Estate of Aguilar

Court of Appeals of Texas, Fourth District, San Antonio

September 20, 2017

IN THE ESTATE OF Ramiro AGUILAR Jr., Deceased

         From the Probate Court No. 2, Bexar County, Texas Trial Court No. 2012-PC-2800 Honorable Tom Rickhoff, Judge Presiding.

          Karen Angelini, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

          MEMORANDUM OPINION

          IRENE RIOS, JUSTICE

         This appeal arises from six probate court orders, [1] which appellants Anthony C. Aguilar and Michael Aguilar argue Probate Court No. 2 lacked jurisdiction to enter. Appellants raise twenty-two issues, [2] 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.

         Background

         For purposes of this appeal, a detailed rendition of the underlying facts is unnecessary. Accordingly, we provide only those facts necessary for context.

         This 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.

         On 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.

         On 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.

         Meanwhile, 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.[3] 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.

         This appeal followed.

         Probate Court's Jurisdiction

         Appellants 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.

         Closing of the Estate - Estates Code Section 405

         Appellants 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.

         The 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 estate

[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).

         Order Approving Final Account

         Appellants 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.

         The January 27, 2016 order specifies additional actions that must be accomplished to achieve final settlement and the closing of the estate.[4] 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 be closed."

         Further, 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 ...


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