Court of Appeals of Texas, Twelfth District, Tyler
IN RE: JOHN DOGGETT, M.D., INDEPENDENT EXECUTOR OF THE ESTATE OF JERRY LLOYD DOGGETT, RELATOR
ORIGINAL
PROCEEDING
Panel
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
MEMORANDUM OPINION
James
T. Worthen, Chief Justice.
John
Doggett, M.D., independent executor of the Estate of Jerry
Lloyd Doggett, filed this original proceeding seeking a writ
of mandamus directing Respondent to vacate a 2019
order.[1] We conditionally grant the writ.
Background
In
November 2004, Marilyn Doggett Stasila, the Real Party in
Interest, filed an application to probate the will of Elwyn
O. Doggett, her father, and issuance of letters testamentary.
The will was admitted to probate and Marilyn was appointed
independent executor. In September 2014, John, Marilyn's
nephew and the executor of his father Jerry's estate,
filed a petition for declaratory judgment on grounds that
Elwyn's will needed to be construed with the will and
codicils of Elwyn's wife, Mary Leone Langdon Doggett.
Jerry is a beneficiary under the wills of Elwyn and Mary, his
parents. John also filed an application to remove Marilyn as
independent executor for gross misconduct or gross
mismanagement, i.e., failure to pay property taxes that led
to a tax lawsuit. He alleged that Marilyn failed to furnish a
requested accounting. In an amended application, John also
alleged that Marilyn failed to fund the testamentary trust
under Elwyn's will.
The
parties reached a mediated settlement agreement (MSA) in
March 2015, which awarded Marilyn certain real property, a
parcel of which was awarded to John. The MSA provided for a
survey of John's parcel and set forth certain boundary
line requirements, and required that the parties execute
special warranty deeds upon the survey's completion and
within fifteen days from presentment. The MSA required the
parties to use Thompson & Associates Surveyors. Marilyn
subsequently objected to the "Thompson Survey" and
hired James Crawford with RMC Surveying to conduct another
survey. In December 2015, Marilyn filed a motion for judgment
on mediated settlement agreement and application for
injunctive relief to enjoin binding arbitration. The motion
explained that a post-mediation dispute arose regarding the
"Thompson Survey." At a hearing on January 7, 2016,
Marilyn's counsel, Chris Day, told Respondent that he did
not believe there were any contested issues because the
parties "intend to accept what we call the Crawford
survey." John's counsel responded, "[W]e've
agreed to accept that survey [the Crawford Survey] as the
survey that is - controls in the MSA."
Crawford
signed a metes and bounds description on January 27. Marilyn
filed an amended motion for judgment on mediated settlement
agreement on November 4. She alleged that despite agreeing
that the Crawford Survey would be used, John objected to the
proposed allocation line in the survey plat and requested
that it be changed. On December 2, Respondent signed a
judgment on the MSA. The following paragraph of the judgment
is marked out:
THE COURT FINDS that on January 7, 2016, the parties
announced in open court that they agreed not to use the
survey and field notes prepared by Thompson & Associates
Surveyors, as originally required per the MSA, and instead
use the survey plat and field notes prepared by James
Crawford of RMC Surveying dated October 8, 2015. Attached as
Exhibit C, incorporated herein and made a part hereof, is a
true and correct copy of the agreed-upon survey plat prepared
by James Crawford of RMC Surveying dated October 8, 2015.
Respondent also marked out language ordering the parties to
each pay half of the RMC surveying fees.
On
April 6, 2018, Marilyn filed a motion for enforcement and
contempt and, alternatively, breach of contract under a Rule
11 agreement made in open court. She alleged that Respondent
had continuing, exclusive jurisdiction. According to Marilyn,
John objected to the allocation line of the property to be
partitioned. Attached to her motion is a letter, dated
January 30, 2018, from Monty Shank, the general manager for
the Upper Neches River Municipal Water Authority to
John's attorney. The letter states that the Authority is
in receipt of John's counsel's letter. Shanks further
states that the Authority wanted the parties to reach an
agreement as to the waterfront allocation line, but it
appears the parties could not agree. Accordingly, the
Authority established the allocation line "to be the red
dash line on the attached Ground Condition Detail Sketch,
dated March 25, 2015 (Thompson & Associates, Tyler,
TX)." Marilyn contended that John violated the MSA, the
Rule 11 agreement, and the judgment by rejecting the agreed
upon survey and seeking to have the boundary line moved. She
further asserted breach of contract regarding the agreement
in open court and the MSA, for which she sought specific
performance.
At a
hearing on Marilyn's motion, Day testified that John
agreed to use the Crawford Survey. He did not recall any
reservations, exceptions, or objections to using the survey.
He testified that John accepted the survey "as the
controlling survey for purposes of the MSA." He did not
believe that the MSA referenced an allocation line. The
allocation line became an issue after the January 2016
hearing and was discussed in his first amended motion, which
Respondent heard on December 2, 2016.
Marilyn
testified that she objected to the entire Thompson Survey, in
part because of the allocation line. At the end of the
January 2016 hearing, she believed that the entire Crawford
Survey was accepted because John did not object to any line
of it. This included the survey plat with a proposed
allocation line. She and Day both testified that
Respondent's 2016 judgment did not include a finding that
the allocation line in the Thompson Survey was correct.
Marilyn stated that the judgment reflects general acceptance
of the Crawford Survey and contains no formal ruling that the
Crawford Survey is not controlling. She recalled a meeting
during which Shank stated that the Authority could deny
access to the water front for both parties absent an
agreement. She took issue with Shanks's statement that
there was no agreement. She also learned that the Authority
received a copy of the Thompson Survey after the January 2016
hearing. Because of John's attorney's letter to
Shank, representing the absence of an agreement, and use of
the Thompson Survey, Marilyn believed John formally breached
their agreement.
John
testified that he did not recall any agreement on the lake
front allocation line. He explained that the Thompson Survey
stated a proposed agreed lake allocation line, but Marilyn
objected to the Thompson Survey. He did not recall any
specific objection or written objection to the allocation
line itself. John testified that he instructed his counsel to
agree to the Crawford Survey, but not the allocation line. He
denied either intending to agree to the Crawford Survey's
allocation line at the January 2016 hearing or actually
agreeing to that allocation line. He acknowledged that the
Crawford Survey was accepted for purposes of governing the
MSA. He also acknowledged that his attorney sent a letter to
Shank on January 24, 2018, which indicated that no agreement
existed as to the allocation line. He denied bypassing the
agreement to have the Authority set the line he wanted.
Craig
Adams, one of John's attorneys, testified that the MSA
never mentioned a lake allocation line, the lake allocation
line was never discussed until after the January 2016
hearing, and no problem with the Thompson Survey's lake
allocation line was ever expressed to him. Adams maintained
that using the Crawford Survey for purposes of preparing the
deeds was unrelated to the lake allocation line. He
acknowledged that the allocation line in the Thompson Survey
differs from that in the Crawford Survey. He testified that
the MSA states, "The western boundary of the property
that borders Lake Palestine shall be divided equally with
each party getting approximately 129 feet of lake
frontage." According to Adams, both surveys do so.
Kenneth Raney, another of John's attorneys, stated that
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