                                   NO. 12-14-00055-CV

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

IN THE MATTER OF THE ESTATE                        §      APPEAL FROM THE

OF ARLETTA TURNER,                                 §      COUNTY COURT AT LAW

DECEASED                                   §   VAN ZANDT COUNTY, TEXAS
                                   MEMORANDUM OPINION
       Van Zandt Health Care Property, Inc., d/b/a Anderson Nursing Center (VZHCP), through
its representative, Walter Cook, appeals from the trial court’s order granting a partial summary
judgment in favor of Mary Redd and Rodney Redd in the probate proceedings of Arleta Turner,
deceased. In its sole issue, VZHCP contends the trial court erred in denying its claim against
Turner’s estate. We affirm.


                                           BACKGROUND
       In October 2009, Turner was admitted to Anderson Nursing Center, which is owned by
VZHCP. She remained there until her death about a year later. She owed the nursing home
about $20,000.00 when she died. Turner owned a home and some acreage but she did not leave
a will. In July 2012, VZHCP, through Cook, filed an application for letters of administration.
The trial court granted the application and appointed Cook, authorized representative of VZHCP,
as administrator. Cook filed an inventory on February 8, 2013, listing only one tract of land
valued at $22,128.00 and stating that no claims are due and owing to the estate. Cook arranged
to sell the property, but the sale was never finalized.
       Mary and Rodney, Turner’s children, objected to the sale of the property and to the
administrator’s inventory. Cook eventually filed three amended inventories. On September 4,
2013, VZHCP presented its claim against the estate. The following day, Cook approved the
claim. In November 2013, Mary and Rodney filed a motion for a partial summary judgment
asking for an accounting, complaining of the inventory, contending that VZHCP did not timely
file its claim against the estate, and asserting that Cook did not have the authority to approve
VZHCP’s claim. The trial court granted the motion, ordering that VZHCP’s claim against the
estate is barred because it was not filed within the applicable limitations period. VZHCP,
through Cook, appealed the trial court’s order denying its claim.1 Thereafter, Cook moved to
resign as administrator.


                                                  LIMITATIONS
        In its sole issue, VZHCP contends that it has a valid claim against the estate, which has a
four year limitations period. It asserts that its claim was filed within four years of Turner’s
breach and that Estates Code Section 355.001 authorizes the claim if it is not barred by the
general statutes of limitations.2 It argues that it “seems illogical and warped that if a creditor
becomes a representative of the estate, by opening the estate, that its statute of limitations to
pursue a contract claim is shortened to six (6) months.” Further, it asserts, the argument that the
limitations period has been shortened to six months is “disingenuous” because the real intent of
Section 355.201 is to control a situation where the claim is approved by the creditor.
Standard of Review
        We review the trial court’s decision to grant summary judgment de novo. Tex. Mun.
Power Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 192 (Tex. 2007). The movant for
traditional summary judgment has the burden of showing that there is no genuine issue of
material fact concerning one or more essential elements of the plaintiff’s claims and that it is
entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548 (Tex. 1985).                Once the movant has established a right to summary
judgment, the nonmovant has the burden to respond to the motion and present to the trial court
any issues that would preclude summary judgment. See City of Houston v. Clear Creek Basin
Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). Review of a summary judgment requires that the

        1
           The order granting summary judgment in this probate proceeding is considered final and appealable even
though it does not dispose of the entire proceeding because it is conclusive of the issue of the viability of VZHCP’s
claim against the estate. See TEX. EST. CODE ANN. § 32.001(c) (West 2014); Fischer v. Williams, 331 S.W.2d 210,
213 (Tex. 1960).
        2
            The Texas Probate Code was recodified as the Texas Estates Code while this matter was pending in the
trial court. The new code became effective January 1, 2014. The trial court rendered its order on the motion for
partial summary judgment on January 22, 2014. The text of the applicable statutes was not substantively changed.


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evidence presented by both the motion and the response be viewed in the light most favorable to
the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and
disregarding all contrary evidence and inferences unless reasonable jurors could not. Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Nixon,
690 S.W.2d at 548-49.
Applicable Law
       Statutory construction is a legal question, which we review de novo. Tex. Lottery
Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); City of Rockwall
v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). In construing statutes, our primary objective is to
give effect to the legislature’s intent. Tex. Lottery Comm’n, 325 S.W.3d at 635. Where text is
clear, text is determinative of that intent. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d
433, 437 (Tex. 2009). We construe the statute’s words according to their plain and common
meaning. City of Rockwall, 246 S.W.3d at 625. The word “shall” in a statute imposes a duty.
TEX. GOV’T CODE ANN. § 311.016 (West 2013).
Analysis
       The estates code provides that a claim against the estate may be presented at any time
before the estate is closed if suit on the claim has not been barred by the general statutes of
limitations. TEX. EST. CODE ANN. § 355.001 (West 2014). Assuming that VZHCP’s claim
accrued upon Turner’s death, the four year limitations period applicable to breach of contract
claims would ordinarily end in October 2014.            However, that claim is a claim by an
administrator. Section 355.201, which speaks to such claims specifically, references provisions
of the code regarding the presentment of claims against a decedent’s estate including Section
355.001 and differentiates claims made by personal representatives. See TEX. EST. CODE ANN.
§ 355.201(a) (West 2014).        The more specific Section 355.201, referencing claims of
representatives, controls over Section 355.001, which applies to claims against estates in general.
See TEX. GOV’T CODE ANN. § 311.026 (West 2013).
       Accordingly, Section 355.201(a) says that Section 355.001, which would allow a creditor
to rely on the general four year statute of limitations, does not apply if that creditor is a personal
representative, such as VZHCP. A personal representative, like VZHCP, “shall file” its claim in
the probate court within six months after the representative has qualified, or the claim is barred.
TEX. EST. CODE ANN. § 355.201(b) (West 2014). By use of the word “shall,” the legislature



                                                  3
imposed a duty on creditor administrators to file their claims within a much shorter time frame
than nonadministrator creditors. See TEX. GOV’T CODE ANN. § 311.016.
         Furthermore, the only reason VZHCP applied to open Turner’s estate was to collect the
$20,000.00 owed for Turner’s care. Otherwise, settlement of the estate was of no concern to
VZHCP. Section 355.201, while recognizing the rights of creditors, provides some protection to
the estate. It is the duty of the personal representative to pay claims against the estate as speedily
as possible, consistent with the rights and interests of all the parties interested. White v. Pope,
664 S.W.2d 105, 108 (Tex. App.–Corpus Christi 1983, no writ). The legislature clearly sought
to have creditors who took on the role of personal representative to take care of their business
expeditiously. As an estate protection measure, this is consistent with the prohibition against the
personal representative approving his own claim. See TEX. EST. CODE ANN. § 355.201(b), (c)
(West 2014).
         VZHCP, through Cook, qualified on August 14, 2012. It presented its claim against the
estate on September 4, 2013. The language of Section 355.201 is clear. See Summers, 282
S.W.3d at 437. VZHCP did not timely present its claim against the estate. See Jackson v.
Fielder, 15 S.W.2d 557, 558 (Tex. 1929) (held claim barred where there was no evidence that
administrator filed his claim on a note against the estate within six months after his
qualification). The trial court correctly construed and applied Section 355.201. Mary and
Rodney showed that VZHCP’s claim is barred by limitations and they are entitled to judgment
on that issue as a matter of law. See Nixon, 690 S.W.2d at 548. We overrule VZHCP’s sole
issue.
                                                    DISPOSITION

         We affirm the trial court’s order.

                                                                  JAMES T. WORTHEN
                                                                     Chief Justice

Opinion delivered August 6, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)



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                                      COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                               JUDGMENT
                                               AUGUST 6, 2014


                                             NO. 12-14-00055-CV


                                 IN THE MATTER OF THE ESTATE
                                 OF ARLETTA TURNER, DECEASED



                                   Appeal from the County Court at Law
                             of Van Zandt County, Texas (Tr.Ct.No. 14,185)


                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
trial court’s order.
                       It is therefore ORDERED, ADJUDGED and DECREED that the trial court’s
order granting a partial summary judgment in favor of MARY REDD AND RODNEY REDD
below be in all things affirmed, and that all costs of this appeal are hereby adjudged against
appellant, VAN ZANDT HEALTH CARE PROPERTY, INC. d/b/a ANDERSON
NURSING CENTER, for which execution may issue, and that the decision be certified to the
court below for observance.

                       James T. Worthen, Chief Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
