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Pounds v. Rohe

Court of Appeals of Texas, First District

December 19, 2019

WADE POUNDS AND RAY J. BLACK, JR., INDEPENDENT ADMINISTRATOR OF THE ESTATE OF THOMAS W. POUNDS, DECEASED, Appellants
v.
REVA JEAN ROHE, Appellee

          On Appeal from the Probate Court No.1 Harris County, Texas Trial Court Case No. 444, 171-401

          Panel consists of Justices Keyes, Goodman, and Countiss.

          OPINION

          GORDON GOODMAN JUSTICE

         Wade Pounds and Ray J. Black, Jr., independent administrator of the estate of Thomas J. Pounds, deceased, filed this interlocutory appeal from the trial court's order denying their motion to compel arbitration. We affirm.

         BACKGROUND

         Settlement of Estate Litigation

         After Thomas J. Pounds, Jr. passed away, his common-law wife, Reva Jean Rohe, and his son, Wade Pounds, became embroiled in litigation over the estate. They eventually settled their dispute. Their settlement agreement included an arbitration clause:

If a dispute arises with regard to the interpretation and/or performance of this agreement or any of its provisions, the parties agree to resolve the dispute by a phone conference with the mediator who facilitated the settlement. If the parties cannot resolve their differences in this manner, then the parties agree to binding arbitration with Judge Ray.

         The trial court incorporated the settlement agreement into an agreed final judgment disposing of the litigation between Rohe and Pounds. The agreed judgment appointed Ray J. Black, Jr. as the estate's independent administrator. The judgment ordered Black to pay all claims and administrative costs and comply with the terms of the settlement agreement.

         Petition for Accounting and Distribution

         In September 2018, Rohe filed a petition for accounting and distribution in the probate court. Among other things, she asserted a right to reimbursement from the estate for mortgage payments she made to prevent foreclosure on real property the deceased gave to her in fee simple. She alleged that Black failed to comply with the terms of the settlement agreement by failing to reimburse her from the estate for these payments.

         In October 2018, Pounds answered. He opposed Rohe's request for reimbursement for the mortgage payments from the estate. As the beneficiary of the estate's remaining funds, any reimbursement made to Rohe effectively would have been at his expense. Pounds also contemporaneously filed a motion for summary judgment seeking to have Rohe's reimbursement claim denied on the merits. Rohe responded to his summary-judgment motion in November 2018.

         The trial court heard the summary-judgment motion in November 2018. Pounds filed supplemental briefing in December 2018. The trial court denied his motion that month.

         Current Lawsuit

         At some point before the trial court had denied Pounds's summary-judgment motion, it informed Rohe that a separate action against the estate or administrator would be necessary to pursue a claim for reimbursement of the mortgage payments in lieu of her petition for an accounting and distribution. See Harris Cty. Probate Ct. Local Rules 2.4, 2.5, 2.6 (providing that claim against administrator for rejection of claim is ancillary matter to be assigned cause number distinct from estate administration); see also Henderson v. Shanks, 449 S.W.3d 834, 840-41 (Tex. App.-Houston [14th Dist.] 2014, pet. denied) (discussing these local probate rules). Accordingly, in December 2018, Rohe filed a claim against the estate for reimbursement of the mortgage payments. Per the local probate rules, this separate action, cause number 444, 171-401, was made a sub-file of the estate administration, cause number 444, 171.

         In January 2019, Black denied Rohe's claim for reimbursement.

         In March 2019, Rohe sued as to Black's refusal to reimburse her from the estate for the mortgage payments. Black answered in April.

         In July 2019, Pounds filed a motion to compel arbitration of Rohe's reimbursement claim under the prior settlement agreement. Black joined Pounds's motion. Rohe filed a response in opposition.

         The trial court heard Pounds's motion to compel arbitration in July 2019. At the hearing, Rohe argued that Pounds had not invoked the arbitration clause when she initially made her claim and that he already had unsuccessfully sought summary judgment as to her right to reimbursement. Rohe noted that her claim for reimbursement had been pending for about eight months before Pounds moved for arbitration and that it was not fair to do so at this point. She explicitly invoked the defense of waiver, reiterating that a motion for summary judgment as to this very issue had been filed, heard, and decided.

         The trial court denied Pounds's motion to compel arbitration. The trial court ruled that Pounds had waived his right to arbitration by substantially invoking the judicial process, specifically by filing a ...


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