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Haight v. Koley Jessen PC, LLC

Court of Appeals of Texas, Tenth District

June 12, 2019

TINA LEA HAIGHT, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF GRADY MARTIN HAIGHT, DECEASED, Appellants
v.
KOLEY JESSEN PC, LLO, DAVID DVORAK, AND DAVID MAYER, Appellees

          From the 40th District Court Ellis County, Texas Trial Court No. 91058

          Before Chief Justice Gray, [*] Justice Davis, and Justice Neill.

          MEMORANDUM OPINION

          JOHN E. NEILL JUSTICE.

         Appellants, Tina Haight, individually and as Executrix of the Estate of Grady Martin Haight, and Mark Fankhauser, as the Dependent Administrator with Will Annexed of the Estate of Grady Martin Haight, filed suit against Appellees, Koley Jessen P.C., L.L.O., David Dvorak, and David Mayer[1] for legal malpractice. The trial court granted Appellees' traditional motion for summary judgment. We affirm.

         Background Facts

         Tina Haight and Grady Martin Haight (Marty) married in December 1998, and Tina filed for divorce in May 2009. Marty passed away on March 27, 2014, and at the time of his death the divorce proceedings were still pending. The Haights owned several businesses, including a roofing business and other businesses related to repair of storm damaged properties. Marty ran the Haight businesses, and he hired the law firm of Koley Jessen P.C., L.L.O. to represent some of the Haight businesses. Marty and Tina were each represented by separate counsel for the divorce proceedings.

         After Marty's death, David Dvorak and David Mayer, partners in the Koley Jessen firm, began communicating with Tina and her personal lawyers concerning the sale of the Haight businesses. At the time Marty's will was admitted to probate, Tina was appointed Independent Executor of Marty's estate. Tina later resigned as Independent Executor of the estate, and Mark Fankhauser was appointed as Temporary Administrator of the estate. Fankhauser was later appointed Administrator with Will Annexed of the Estate of Grady Martin Haight, deceased. Fankhauser was substituted as a party in this cause of action. Tina eventually entered into an agreement for the sale of her interest and the estate's interest in all of the Haight businesses. After the agreement was finalized, Tina Haight, individually and as Executrix of the Estate of Grady Martin Haight, filed suit in district court against Appellees and others for legal malpractice. Tina ultimately settled her disputes with the other defendants.

         Issues on Appeal

         Tina brings four issues on appeal. She argues that 1) the trial court lacked jurisdiction to hear the appeal; 2) the trial court erred in granting Appellees' motion for summary judgment; 3) the trial court erred in striking her summary judgment evidence; and 4) the trial court erred in granting summary judgment on all claims if it could only be sustained on conclusively negating reliance. Fankhauser brings four issues on appeal and argues that 1) summary judgment evidence was not properly before the court; 2) Appellees' failure to comply with Rule 1.07 of the Texas Disciplinary Rules of Professional Conduct precludes summary judgment in their favor; 3) the trial court improperly granted summary judgment because there was conflicting testimony; and 4) Appellees cannot rely on quasi-estoppel as a basis for summary judgment.

         Tina's issues on appeal

         Jurisdiction

         In the first issue, Tina argues that the district court did not have jurisdiction over the case. Ellis County does not have a statutory probate court. The Texas Estates Code provides that a probate proceeding includes any matter related to the settlement, partition, or distribution of an estate. See Tex. Est. Code Ann. § 31.001 (West 2014). A matter related to a probate proceeding in a county in which there is no statutory probate court, but in which there is a county court at law exercising original probate jurisdiction, includes a claim brought by a personal representative on behalf of an estate. See Tex. Est. Code Ann. § 31.002 (West 2014).

         Tina contends that the present case is a matter related to the Haight probate proceeding because she brought the suit on behalf of herself as well as in her capacity as the Independent Executor of the Estate of Grady Martin Haight. Tina argues that because Ellis County Court, the County Court at Law of Ellis County, and the County Court at Law No. 2 of Ellis County are the only courts with original probate jurisdiction in Ellis County, the District Court lacked jurisdiction to hear this case.

         In In re Hannah, relator had a relationship with the decedent and was named in his 2009 and 2010 wills. In re Hannah, 431 S.W.3d 801 (Tex. App.-Houston [14th Dist.] 2014, orig. proceeding). However, decedent executed a will in 2012 that did not include relator. In re Hannah, 431 S.W.3d at 804. After the death of the decedent, the 2012 will was admitted to probate and relator did not contest the will. In re Hannah, 431 S.W.3d at 805. Relator filed suit in district court for tortious interference with inheritance, slander, and conspiracy. Id.

         In In re Hannah, the court held that a cause of action brought in the district court was not a "matter related to a probate proceeding" within the scope of Section 31.002 of the Estates Code. In re Hannah, 431 S.W.3d at 809. The court focused on the nature of the damages sought, and held that because the suit sought damages which would, if awarded, be satisfied from the defendant's individual assets rather than from any ...


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