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In re Estate of Nunu

Court of Appeals of Texas, Fourteenth District

June 28, 2018

IN THE ESTATE OF ROSE FARHA NUNU, DECEASED

          On Appeal from the Probate Court No. 1 Harris County, Texas Trial Court Cause No. 416, 781

          Panel consists of Christopher, Busby, and Jewell Justices.

          MEMORANDUM OPINION

          Tracy Christopher Justice

         Before us for the third time is a continuing dispute between siblings concerning the probate of their mother's estate. See In re Estate of Nunu, 542 S.W.3d 67 (Tex. App.-Houston [14th Dist.] 2017, pet. denied) ("Nunu I"); In re Nunu, No. 14-17-00106-CV, 2017 WL 1181364 (Tex. App.-Houston [14th Dist.] Mar. 30, 2017, orig. proceeding [mand. denied]) (per curiam) (mem. op.) ("Nunu II").[1] In this appeal, Paul Nunu challenges three trial court orders that (1) accepted the conditional resignation of Paul's sister Nancy Nunu Risk as independent executrix and appointed third party Howard M. Reiner as successor dependent administrator; (2) overruled Paul's objections both to the creation of a dependent administration and to Reiner's appointment; (3) denied Paul's application to be appointed as successor independent executor; and (4) denied his motion to compel an accounting from Nancy. Because Paul's appeal of the trial court's first order is untimely and the trial court's second and third orders are partly refusals to reconsider the first order and partly non-appealable interlocutory rulings on new matters, we dismiss the appeal for want of jurisdiction.

         I. Nunu I

         In Nunu I, Paul alleged that his sister Nancy, in her capacity as independent executrix of their mother's estate, had committed breach of fiduciary duty, negligence per se, gross negligence, gross mismanagement, gross misconduct, and fraud. Nunu I, 542 S.W.3d at 72. He asked the trial court to remove Nancy as independent executrix of their mother's estate, compel distribution of the estate, award him exemplary damages, declare Nancy's inheritance forfeit, declare Nancy's attorneys' fees forfeit, and enforce an alleged partition agreement. See id. at 72-73. On the third day of the jury trial, Paul nonsuited his claims to remove Nancy or to enforce the forfeiture in his mother's will, reserving only his claims to compel distribution of the estate and to contest and seek forfeiture of Nancy's attorneys' fees. Id. at 72. Regarding Paul's motions to compel distribution of the estate, we noted that "unless the court finds a continued necessity for administration of the estate, the court shall order its distribution by the independent executor to the persons entitled to the property." Id. at 85 (quoting Act of May 29, 1987, 70th Leg., R.S., ch. 565, § 1, 1987 Tex. Gen. Laws 2246, 2246 (amended 2011 and 2013) (current version at Tex. Est. Code § 405.001(b))).

         In response to Paul's second application to compel distribution, the trial court failed to find a continued necessity for administration. See id. at 86. On November 2, 2017, we affirmed that portion of the judgment, but held that the trial court erred in failing to rule on the extent to which Nancy's expenses and legal fees incurred in the removal action are to be paid from the estate's assets and in failing to order distribution of the estate in accordance with the terms of the will. See id. at 89. We remanded the case to the trial court with instructions to the trial court (1) to determine the amount of Nancy's reasonable and necessary expenses and attorneys' fees incurred in that action to be paid from the estate's assets; (2) to authorize Nancy to make such payments from the estate's assets and to order her to reimburse the estate to the extent that her expenses and legal fees incurred in that action and already paid with estate funds exceeds the amount of reasonable and necessary expenses and fees found by the trial court; (3) to compel distribution of the estate in accordance with the will of Rose Farha Nunu; and (4) if any portion of the estate is incapable of distribution without prior partition or sale, to order partition and distribution, or sale, in the manner provided for the partition and distribution of property incapable of division in estates administered under the county court's direction.[2] Id. at 89-90. We further pointed out that the trial court is not required to compel distribution of the estate's assets in accordance with the terms of any partition or settlement agreement that had not been signed by all of the estate's beneficiaries. See id. at 87. After the denial of Paul's motion for rehearing and his petition for review to the Supreme Court of Texas, our mandate issued in that case on May 17, 2018.[3]

         II. The Trial Court's Orders and Nunu II

         In the meantime, however, events had taken a different course in the trial court. The trial court signed three orders, each of which addressed at least one document filed by Paul containing various objections, applications, or motions. For clarity and consistency, we refer to these documents respectively as the trial court's First, Second, and Third Orders, which respectively addressed Paul's First, Second, and Third Objections.

         A. Paul's First Objections and the Trial Court's First Order

         While the appeal of Nunu I was pending, Nancy applied to the trial court to resign as independent executrix on the condition that she or a qualified third party be appointed as dependent administrator of the estate. Paul responded by filing his First Objections.[4]

         In his First Objections, Paul argued that Nancy had not supported her conditional resignation with a verified accounting as required by Texas Estates Code section 361.001. See Tex. Est. Code Ann. § 361.001 (West 2014) ("A personal representative who wishes to resign the representative's trust shall file a written application with the court clerk, accompanied by a complete and verified exhibit and final account showing the true condition of the estate entrusted to the representative's care."). Although this section addresses the documents to be included in a personal representative's application to resign, Paul nevertheless asked the trial court to accept Nancy's resignation, characterizing his objection instead as an objection to the appointment of a dependent administrator.

         In addition, Paul argued that the application to resign and for appointment of a successor dependent administrator violated (1) the part of his mother's will that provided, "I direct that no action shall be taken in any court in the administration of my estate other than probating and recording of this Will and the return of an inventory appraisement and list of claims of my estate"; (2) the terms of the final judgment rendered on November 27, 2012, which similarly stated, "It is ORDERED that . . . no other action shall be had in this Court other than the return of an Inventory, Appraisement, and List of Claims as required by law"; and (3) Texas Estates Code section 401.001(a), which authorizes an independent administration. See id. § 401.001(a).[5] Paul further argued that the application interfered with this Court's jurisdiction in the then-pending Nunu I because it potentially would moot the appeal by disposing of estate assets before that appeal was decided.[6] Regarding Nancy's request to be reappointed as successor dependent administrator, Paul objected on the same grounds that were later decided against him in Nunu I.[7]

         On January 12, 2017, the trial court signed an order accepting Nancy's conditional resignation and appointing third party Howard M. Reiner as dependent administrator ("the First Order").

         B. Paul's Second Objections and the Trial Court's Second Order

         One week after the trial court granted Nancy's resignation and appointed Reiner, Paul filed his Second Objections, in which he moved for a rehearing of the trial court's First Order.[8] Paul again objected that Nancy's application to resign was fatally defective for failing to include a verified final account. He also argued that the Texas Estates Code section 404.005 authorizes the appointment of a successor independent executor but does not authorize the appointment of a successor dependent administrator.[9] He argued that the only relief that the trial court had discretion to grant in response to Nancy's applications was to condition the acceptance of her resignation on a satisfactory accounting and to appoint Paul as successor independent executor.[10] On the other hand, Paul also argued that the appointment of a successor to Nancy was time-barred under Texas Estates Code section 301.002-an argument that, if correct, also would bar his own appointment. See Tex. Est. Code Ann. § 301.002 (West Supp. 2017) (with certain exceptions, "an application for the grant of letters testamentary or of administration of an estate must be filed not later than the fourth anniversary of the decedent's death").[11] In addition, Paul applied for the first time to be appointed as successor independent executor.

         Nancy filed a response in which she asserted that letters testamentary already had been issued to her and that the Texas Estates Code does not require letters testamentary to be issued to a successor personal representative within four years of the decedent's death. As for appointing Paul as successor independent executor, Nancy pointed out that all of the estate's distributees had not agreed to his appointment. See id. § 404.005(a) (West 2014) (stating that if no independent executor or successor named in the will is willing to serve as a successor independent executor, then "all of the distributees of the decedent" may apply to the probate court for an order appointing a qualified person, firm, or corporation as successor independent executor) (emphasis added).

         On February 3, 2017, the trial court signed the Second Order, in which it denied Paul's Second ...


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