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In re Estate of Calkins

Court of Appeals of Texas, First District

May 30, 2019


          On Appeal from the Probate Court No. 2 Harris County, Texas Trial Court Case No. 441165

          Panel consists of Justices Keyes, Higley, and Landau.


          Sarah Beth Landau Justice.

         Richard Stephen Calkins and his sister Carolyn, who is not a party in this appeal, have litigated, for years, the question of who should manage the assets of their mother Mary Olive Hull Calkins.[1] Now that Mary Olive is deceased, her children are litigating the probate of her estate.

         Maurice Bresenhan is the estate's court-appointed administrator. When Calkins, through his attorney Susan Norman, declined to provide Bresenhan certain information he asserted was necessary for preparation of Mary Olive's final individual and the estate's income tax returns, Bresenhan moved for an order compelling both Calkins and Norman to produce the information. The probate court granted the motion, but, when the production deadline came, Calkins and Norman did not turn anything over to Bresenhan and instead jointly moved to dismiss Bresenhan's "legal action" under the Texas Citizens Participation Act (TCPA or the "Act"). See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. Calkins and Norman argued that Bresenhan sought the tax information as retribution for their exercise of protected rights of speech, association, and petitioning in previous litigation about whether to establish a guardianship for Mary Olive. The probate court denied the motion to dismiss and did not award Bresenhan, as the respondent, any attorney's fees. See id. § 27.009(b). Calkins, Norman, and Bresenhan all appealed.

         In this interlocutory appeal under Section 51.014(a)(12) of the Civil Practice and Remedies Code, [2] Calkins and Norman contend the underlying probate proceeding must be dismissed, in its entirety, because (1) the probate judge presiding at the time was constitutionally disqualified and therefore lacked authority to act; (2)the probate proceeding was filed prematurely before Mary Olive's death; and (3)their TCPA motion should have been granted. Bresenhan challenges the probate court's failure to award him attorney's fees.

         Finding no error in the probate court's ruling, we affirm.


         Because the facts giving rise to the Calkins family dynamics, the pre-death application for a guardianship of Mary Olive, and, ultimately, this probate proceeding have been detailed in earlier appellate opinions, [3] only those facts necessary for resolution of the issues currently before the Court are included here.

         Though Calkins and Carolyn disagree about the specific time of their mother's death, there is no dispute that Mary Olive died at some time on July 8, 2015.[4] That day, Carolyn filed an application to probate a will executed by Mary Olive in November 2002. Calkins answered and filed a will contest, offering a competing, later-executed will and two codicils.

         The probate court appointed Bresenhan as the administrator of Mary Olive's estate and, according to Bresenhan, ordered him to file income tax returns for Mary Olive individually and the estate. Bresenhan sent two emails and one letter to Norman, as Calkins's attorney, between April 2016 and November 2017, asking that she provide copies of documents to aid his preparation of the tax returns.

         Norman refused to provide the documents, responding that Bresenhan's appointment as administrator was void, that he lacked authority to file a tax return on behalf of either Mary Olive individually or her estate, and that he would violate federal law by misrepresenting his authority on a tax return. Although not explicit in her correspondence, Norman's reference to Bresenhan's "void" appointment seemingly concerns Calkins's contention that the then-sitting judge, the Honorable Mike Wood, could not preside over any case involving the Calkins family because he either was disqualified or had recused in a previously filed guardianship case involving Mary Olive.[5]

         Bresenhan filed a "Motion for Tax Information" requesting an order compelling Calkins "and/or his counsel to provide the necessary tax information." The appellate record does not indicate whether Calkins or Norman filed a written response. About one month later, Judge Wood granted the motion and ordered both Calkins "and his counsel" to provide Bresenhan the following:

1) any testamentary and trust documents executed by Mary Olive before her death;
2) a list of all stocks and bonds held by Mary Olive at the time of her death;
3) records of any bank accounts, notes, and cash at the time of Mary Olive's death;
4) the previous eight years of Mary Olive's tax returns;
5) the name and contact number of Mary Olive's accountant before and at the time of her death;
6) a list of any insurance on Mary Olive's life;
7) a list of any real property owned by Mary Olive at the time of her death; and
8) any other "files of matters" necessary to help Bresenhan determine the status of the estate's assets.

         Calkins and Norman did not produce any documents. Instead, on the day the production was due, they jointly moved to dismiss Bresenhan's "legal action" under the TCPA. In their motion to dismiss, Calkins and Norman argued that the allegations in Bresenhan's motion for tax information were based on, related to, or in response to the various pleadings and motions filed by Norman on Calkins's behalf in the guardianship case. They asserted that by ordering Norman, individually, to comply with its production mandate, the probate court interfered with the attorney-client relationship, denied Norman the exercise of her right to associate with Calkins as a client, and denied Calkins his right to associate with Norman as his preferred counsel. They further asserted that the order prohibited Calkins's petitioning activity and speech related to his "objections to actions taken by a disqualified/recused judge."

         To their motion to dismiss, Calkins and Norman attached: (1) printed docket sheets from the Harris County Clerk's website providing the case information and status for the previous guardianship case and the underlying probate proceeding; (2) Mary Olive's death certificate; (3) the Local Rules of the Harris County probate courts; (4) information related to Judge Wood's disqualification or recusal in the guardianship case;[6] (5) the transcript for the hearing on a motion to transfer the underlying probate case; and (6) the transcript for the hearing on Bresenhan's motion for tax information, along with the motion itself and the probate court's order. In addition, Calkins and Norman each submitted an affidavit, wherein they set out the history of the Calkins family litigation and their respective roles in it.

         Bresenhan responded and argued that Calkins and Norman's TCPA dismissal motion, filed more than two years after the probate began, was untimely and, as a result, frivolous or dilatory so as to trigger an award of attorney's fees to him under TCPA Section 27.009(b). See Tex. Civ. Prac. & Rem. Code § 27.009(b) ("If the court finds that a motion to dismiss filed under this chapter is frivolous or solely intended to delay, the court may award court costs and reasonable attorney's fees to the responding party."). Bresenhan requested fees in the amount of $10, 880 for responding to the dismissal motion; $20, 000 in the event of an unsuccessful appeal to an intermediate appellate court; and an additional $10, 000 in the event of an unsuccessful petition for review in the Texas Supreme Court.

         As was observed at the hearing on the TCPA motion, however, Bresenhan filed his request for attorney's fees the night before the hearing, prompting this exchange in which Bresenhan withdrew his fees request:

BRESENHAN: And we have asked for attorney's fees on the Motion to Dismiss. We filed an ...

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