                                                                                                    ACCEPTED
                                                                                                05-15-00432-CV
                                                                                     FIFTH COURT OF APPEALS
                                                                                                DALLAS, TEXAS
                                                                                            5/5/2015 8:57:00 AM
                                                                                                     LISA MATZ
                                                                                                         CLERK

                                   NO. 05-15-000432-CV


                               IN THE COURT OF APPEALS                         FILED IN
                                FOR THE FIFTH DISTRICT                  5th COURT OF APPEALS
                                   AT DALLAS, TEXAS                         DALLAS, TEXAS
                                                                        5/5/2015 8:57:00 AM
                                                                              LISA MATZ
                                   J. STACY DAVIDSON,                           Clerk
                                          Appellant
                                              V.


                                      JUDYE GREMM,
                                          Appellee



                              On Appeal from the Probate Court
                                    Dallas County, Texas
                                  Cause No. PR-09-3999-1
                                  (Honorable Judge Peyton)


   APPELLANT'S RESPONSE TO APPELLEE'S MOTION TO DISMISS PORTION OF
                                          APPEAL




TO THE HONORABLE JUSTICES OF THE FIFTH CIRCUIT COURT OF APPEALS:
       Appellant asks this Court todeny the Appellant's Motion to Dismiss Portion ofAppeal
and allow the Appellant's Appeal to proceed before this Honorable Court as plead.

                                        A. Introduction


   1. Appellant is JOHN STACY DAVIDSON, former Independent Co-Executor ofthe Estate
       ofFriley S. Davidson. Appellee isJudye Gremm, former beneficiary ofthe Estate ofFriley
       S. Davidson, and now Administratorwith Will Annexed of said Estate.

   2. This appeal is taken from two Orders entered in the above referenced Probate Court for
       Dallas County:
      a. The Order Granting Motion for Partial Summary Judgment and Removing

           Independent Co-Executors, dated February 22,2013, and

      b. The Order Granting Motion for Judgment on Verdict and Motion for Judgment Non

           Obstante Veredicto, dated January 30,2015.


                            B. Facts and Procedural History


3. Friley Davidson died on December 10,2009, leaving a valid written Will dated December

   11,2008.

4. The Application for Probate was filed immediately, December 14,2009, and the Will was

   probated on December 30,2009.

5. As both Co-Executors are, and remain, residents of Mississippi, the Court approved

   attorney David Bell as their registered agent in Texas.

6. On or about January 18, 2010, the Co-Executors, through counsel, sent their Rule 128A

   letter to the beneficiaries advising them that the Will had been entered into probate, that

   they were named beneficiaries, provided the names and addresses of the personal

   representatives, and provided them a copy ofthe Will and the Order Admitting the Will to

   Probate.

7. The Co-executors filed their rule 128A Affidavit on March 30, 2010 and their Inventory

   on May 20, 2010. The Inventory was approved on May 21, 2010, by the Honorable John

   B. Peyton.

8. Judye Gremm, a named beneficiary, filed a Petition to Remove Co-Executors on May 25,

   2011.


9. Discovery proceeded in this matter imder Tex. R. Civ. P. Rule 190.3. The discovery,

   however, that took place was narrow in scope, including Requests for Disclosure, oral
   depositions of the Co-Executors only, and interrogatories propounded to the Plaintiff.

   Neither the other beneficiaries, nor the Plaintiff, were deposed.

10. Eventually, Judy Gremm filed her Plaintiffs Motion for Partial Summary Judgment on

   January 23, 2013, seeking removal of the Co-Executors for seven alleged breaches of the

   Texas Probate Code.

11. The alleged breaches were "evidenced" by the following attachments to that Motion, which

   constitutes the whole of the Plaintiffs evidence in support of Partial Summary Judgment:

       a. The Order Admitting Will to Probate and Authorized Letters Testamentary; Oaths

          ofthe Independent Co-Executors; the Inventory, Appraisement, and List of Claims;

          the Order Approving Inventory, Appraisement, and List of Claims; and the

          Affidavit of Compliance with Section 128A Texas Probate Code;

       b. The Last Will and Testament of Friley S. Davidson as admitted to Probate;

       c. The Affidavit of Keith Staubus; a demand letter for full disclosure; a copy of the

          Decedent's Comerica bank account statement; a demand letter for documentation

          reconciling the discrepancy between the Inventory and the bank account;

       d. Portions of the depositions of each Co-Executor;

       e. The Affidavit of L. Henry Alterman; his demand letter for an Accounting; a copies

           ofthe Appointment of Registered Agent, the Co-Executor's Application to Probate

           Will and for Letters Testamentary, and the Court's docket sheet showing that no

           proofs of publication or service had been filed with the Court.

12. On February 13, 2013, Defendant's filed their Response to Plaintiffs Motion for Partial

   Summary Judgment, contesting each of the alleged violations of the Texas Probate Code

   and including proper evidence in support thereof.
13. On February 22, 2013, the Honorable Brenda Hull Thompson, presiding over this matter

   at the time, entered the Order Granting Motion for Partial Summary Judgment and

   Removing Independent Co-Executors in the above captioned matter. (See EXHIBIT A).

14. This matter proceeded to trial on the issue of damages. A trial by jury was held on

   December 8, 2014 through December 10, 2014. Following the trial, on January 30,2015,

   the court granted the Plaintiffs Motion for Judgment on Verdict and Motion for Judgment

   Non Obstante Veredicto.

15. The Defendant therein. Appellant herein, filed his Motion for New Trial on February 25,

   2015, which was denied by the court on March 6, 2015. Appellant's Notice of Appeal

   followed on March 30,2015.

16. Appellee filed the current Motion to Dismiss Portion of Appeal on April 16,2015.

                                 C. Standard of Review


17. The Appellant asserts that an appellate court reviews questions ofjurisdiction under Texas

   Rules of Appellate Procedure, Rule 42.3, de novo. Saleh v. Hollinger, 335 S.W.3d 368,

   370 (Tex. App. - Dallas 201 l)(citing Mayhew v. Town ofSunnyvale, 964 S.W.2d 922,928

   (Tex. 1998).

                               D. Argument and Authoritv


18. Respondent relies on Eddins v. Borders, 71 S.W.3d 368,371 (Tex. App. - Tyler 2001, pet.

   denied) for the proposition that the Petitioner's Notice of Appeal, as to the Order Granting

   Partial Summary Judgment, is untimely, as said Notice was filed more than 30-days after

   the Order was entered. That case, however, is distinguishable from the present because

   Eddins involved the appeal of a summary judgment order, after which a severance was

   granted.
19. A full treatment of the "severance trap" is found in Lehmann v. Har-Con Corporation, 39

   S.W. 3d 191 (Tex. 2001). The Court there found that partial summary judgments are not

   entitled to receive the "presumed disposition" treatment that conventional trials on the

   merits of a case receive. Id. This case also stands for the proposition that a partial summary

   judgmentordermay become a "finaljudgment" if severance occurred after the entrance of

   the order, wherein a separate cause of action was initiatedas to the remaining claims.

20. Here, there was no severance. The order itself declares its own interlocutory nature. The

   caselaw strongly supports a finding of interlocutory status. Further, the Ordergranting the

   Partial Summary Judgment explicitly says that "JUDYE GREMM'S remaining claims

   against the Defendants are still pending in this proceeding." The Order itselfdeclares its

   natureas an interlocutory judgment, and not as a finaljudgment on the merits.

21. Next, the Respondent relies on In re Estate of Washington for the assertion that an order

   removing a personal representative of an estate and appointing a successor is a final

   appealable order. 262 S.W.3d 903, 905 (Tex. App. - Texarkana 2008). Thatcase is also

    distinguishable because there, the order removing the administrator was entered after a

    hearing on the matter. The court there noted specifically, "[i]t appears that [the order of

    removal] was not rendered based merely on the summary judgment pleadings, but aftera

    hearing. A hearing was conducted concerning the administrator..." Id. at 906.

22. The Respondent further relies on Pine v. Deblieux, wherein the court implied thatan order

    removing an executor, after a hearing onthematter, is a final appealable order. 360S.W.3d

    45,46 (Tex. App. - Houston 2011). Thatcourt doesn't directly state that suchorders, even

    aftera hearing on the matter, are finally appealable, but cites In re Estate of Vigen for the

    proposition that "[a]n order settling someone's rights as an Executor is generally a final.
   appealable Order." (Appellee's Motion to Dismiss at 3, para. 9)(citing In re Estate ofVigen,

   970 S.W.2d 597, 599 (Tex. App. - Corpus Christi 1998). The court in Vigen, however,

   considered the removal ofa representative due to a conflict of interest at the very beginning

   of the probate proceeding, thus preventing the Appellant from appointment as

   administrator. Vigen, 970 S.W.2d 597 at 598.

23. The Vigen court further supported its finding of finality by finding that "[t]here are no

   ongoing proceedings relevant to this issue, and no 'pleadings also part of that proceeding'

   concerning 'issues or parties not disposed of.'" Id. at 598 (citing Spies v. Milner, 928

   S.W.2d 317, 318-319 (Tex. App. - Fort Worth 1996)).

24. The Petitioner asserts that these authorities are irrelevant to the case at bar. The Petitioner

   contends that, as a general principle, partial summary judgments orders are not entitled to

    receive the "presumed disposition" treatment that conventionaltrials on the merits ofa case

    receive. Lehmann, 39 S.W.3d 191 at 191. More specifically, a partial summary judgment

    granted by a probate court is expressly an interlocutory imder section 5(g) of the Probate

    Code and thus appeal is only proper once all of the issues have been decided in a Final

    Order. In re Estate ofWillett^ 211 S.W. 3d 364,365 (Tex. App. - San Antonio 2006).

25. Further, the Petitioner contends that the "One Final Judgment Rule," as found in Okumu v.

    Wells Fargo Bank, N.A., is applicable in this case. 2010 WL 87735 (citing De Ayala v.

    Mackie, 193 S.W.3d 575, 578 (Tex. 2006)). The One Final Judgment Rule is made

    applicable in the probate context as, "[t]he probate court conducts its business in a

    continuing series of events. The nature of "administration" contemplates decisions to be

    made on which other decisions will be based. There must be a practical way to review

    erroneous, controlling, intermediate decisions before the consequences of the error do
   irreparable injury." Vineyard v. /rvm, 855 S.W.2d 208, 210 (Tex. App. - Corpus Christi

   1993)(citing Christensen v. Harkins, 740 S.W.2d 69, 74 (Tex. App. - Fort Worth 1987)).

26. The Petitioner argues, however, that the language ofthese cases limits the operationofthe

   probate exception to the "One Final Judgment Rule" to only those orders or judgments

   rendered as partof the ongoing administration ofthe estate.Looking to factsof thosecases,

   they all involve specific transactions, such as the sale of certain estateproperty, that were

   controverted in the probate court. The court in Vineyard refersto the compound nature of

   the decisions made during estate administration, how one transaction entered into by the

   representative effects future transactions. The need for finality is thus necessaryto prevent

   one bad transaction from leading to others and ultimately causing harm to the estate as an

   ongoing concern. The Okumu case illustrates this concept by its holding, "[t]he action of

   the court in confirming or disapproving a report of saleshall have the force andeffect of a

    final judgment; and anyperson interested in theestate... shall have the rightto have such

    decrees reviewed as in other final judgments in probate proceedings.

27. Therefore, the probateexception does not apply to Petitions for Removal of Executors, as

    such actions arenot partof the normal, day-to-day decisions involved in the administration

    of estate affairs. Removal of representatives is of a different character entirely thanthatof

    the routine disposition of estate assets and affairs. The case law indicates the availability

    of appeal of court orders during the pendency of a probate proceeding in order to prevent

    the compounding of harmful transactions undertaken inthe course ofestate administration,

    not for the removal of the administrators themselves.
   28. Such was the case in the current matter. The various orders of the Probate Court entered

      prior to the Petition to Remove the Co-Executors, filed by the Appellee herein, were

      properly appealable within 30 days of entrance. Instead, the Petition to Remove was filed.

   29. Also, the action to remove the Independent Co-Executors was accompanied by a second

      motion for Partial Summary Judgment requesting damages related to the administration of

      the estate under the former Executors, including attorney's fees up to and including the

      removal of the Executors. This Motion resulted in the subsequent trial, beginning on

      December 08,2014. The Appellant avers that this is indicative ofthe ongoing nature ofthe

      underlying Partial Summary Judgment removing the Co-Executors.

   30. As such, the caselaw and facts at hand warrant the appeallability of the Order Granting

      Partial Summary Judgment and Removing the Independent Co-Executors of February 22,

      2013.



   WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court to Deny the

Appellee's Motionto Dismiss Portion of Appeal and allowthe Appeal to go forward.

RESPECTFULLY SUBMITTED, this the 4th day of May, 2015.


                                                   /s/ James 0. McGee. Jr.
                                                   James G. McGee, Jr.
                                                   State Bar of Texas Number 24051025
                                                   Email: jmcgee@mcgeetaxlaw.com
                                                   Law Office of James G. McGee, Jr. PLLC
                                                   6440 N. Central Expressway
                                                   Suite 203
                                                   Dallas, Texas 75206
                                                   Phone: (214) 706-9929
                                                   Fax: (214) 706-9956

                                                   ATTORNEY FOR APPELLANT
                                                   JOHN STACY DAVIDSON
                               CERTIFICATE OF SERVICE


       I do hereby certify that a true and correct copy of the forgoing was served upon P. Keith

Staubus,attorney for Appellee via electronic service at pks@srllD.com on May 4,2015.

                                                    /s/ James G. McGee. Jr.
                                                    James G. McGee, Jr.
                                                    State Bar of Texas Number 24051025
                                                    Email:jmcgee@mcgeetaxlaw.com
                                                    Law Office of James G. McGee, Jr. PLLC
                                                    6440 N. Central Expressway
                                                    Suite 203
                                                    Dallas, Texas 75206
                                                    Phone: (214) 706-9929
                                                    Fax: (214) 706-9956
EXHIBIT A
                                               CWSE NO. PR-09-3999-1

     IN THE ESTATE                                       §             THE PROBATE COURT
                                                         §
     FRILEY S.DAVIDSON,                                  §                         OF
                                                         §
     DECEASED                                            §           DALLAS COUNTY, TEXAS
                ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT
                             ANn REMOVING INDEPENDENT CQ-EXECUTORS

     On the 21®' day of February, 2013, came on to be considered the Plaintiffs Motion for Partial
     Summary Judgment. After considering the Motion, the Defendants' Response, and the timely
     filed summary judgment proof, the Court makes the following findings.
     1.         The Independent Co-Executors failed to return within ninety (90) days after qualification
                       A n J . 1                                                               1j
     aitovStory ofthe property ofthe Estate and List ofClaims that came into their knowledge or an
     Affidavit In Lieu ofthe Inventory, Appraisement and List ofClaims;

     2.         Sufficient grounds appear to support the belief that the Independent C<vE^cutors have
     misapplied^^^S^of^Tthey are about to misapply oP«li^^^^^OT^partofthe
     property committed to their care;

     3.         The Independent Co-Executors failed to make an accounting which was required by law,
     being Texas Probate Code §149A, to be made;
      4.         The Independent Co-Executors failed to timely file the Affidavit or Certificaterequired by
X/    Section 128A ofthe Texas Prob^e Code;
                                                                           been guilty of gross miccond<tft

      ec gross mismanagement in the performance of their duties,
      6.         The Independent Co-Executors have become incapable of properly performing the
      Independent Co-Executors' fiduciary duties due to amaterial conflict ofinterest;
                 The Partial Summary Judgment should be granted.                     ' Pft-oo-o3889-r
                                                                                     ' COOR
                                                                                       ORorn
                                                                                     . 26308

          Cause No.» PR^9.3999-1   Estate of Friley S.       5"^^^
          OPDRR GRANTING MOTION FOR PARTIAL SUMMARY WPCMISirn'-
        IT IS, THEREFORE, ORDERED AND DECREED that L. STACY DAVIDSON and
JOHN STACY DAVIDSON arehereby removed as Independent Co-Executors of this Estate.

       IT IS FURTHER ORDERED that all Letters Testamentary issued to L. STACY

DAVIDSON and JOHN STACY DAVIDSON shall be surrendered and that all Letters

Testamentary are hereby cancelled of record.

       IT IS FURTHER ORDERED that JUDYE OREMM'S remaining claims against the

Defendants are still pending in this proceeding.

        SIGNED this                  Febniary, 2013.




                                                             JUDfiBPRESIDrNG




 Cause No.: PR-09-3999-1   EstateofFrileyS. Davidson, Deceased
 OftPER GRANTING MOTION FOR PARTIAL ffV^ARY JUDGMENT-                               B
