                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00285-CV

   IN THE ESTATE OF HENRIETTA CANNON STONE, DECEASED



                           From the 278th District Court
                              Madison County, Texas
                          Trial Court No. 09-11985-278-10


                                     OPINION


       The Probate Code, now the Estates Code, provides a detailed procedure for the

sale of an estate’s property by a dependent administrator or executor. That was done in

this case. The administratrix of Henrietta Stone’s estate found one buyer for a portion

of the Estate’s property, and after a delay, found another buyer for the same property.

The delay worked to the benefit of the Estate. A hearing was held in the trial court to

determine which contract would be confirmed; and the court, not surprisingly, selected

and confirmed the contract for sale of the Estate’s property that was best for the Estate.

Because the trial court did not err in confirming one contract and setting aside the other,

the trial court’s Decree Confirming Sale of Real Property is affirmed.
BACKGROUND

        Henrietta Stone passed away in 2008. She gave the residuary of her estate to

Trinity University and The Sons of Hermann. Pursuant to the will, Stone’s tangible

property was to be sold and the funds delivered to these beneficiaries. A settlement

agreement which modified the percentages to be distributed to the agreed

“beneficiaries” resolved a will contest.

        Stone owned three tracts of land at the time of her death that were to be sold.

The Dependent Administratrix, Patricia Orozco-Hardy, filed an application for sale of

the three tracts, and the trial court ordered the sale. Orozco-Hardy found a buyer for

one of the tracts, a 150 acre tract. That buyer was Ronald R. Johns, Sr. A contract was

entered into where Johns would buy the 150 acre tract including the mineral interest.

Two years later, Orozco-Hardy found another buyer for the 150 acre tract, C.M.

Hadash. Hadash agreed to buy only the surface estate of the tract for a slightly higher

price than the Johns contract price. The mineral interest under the Hadash contract was

to remain with the Estate, and, as will be explained, ultimately distributed in-kind to

the beneficiaries. A report of each “sale” was proffered to the trial court, and after a

hearing, the trial court confirmed the sale of the property to Hadash and cancelled the

Johns contract.

SALE OF ESTATE PROPERTY-LAW

        The legislature has created a comprehensive statutory scheme that governs estate


In the Estate of Stone                                                            Page 2
administration proceedings to sell estate property. In re Estate of Bendtsen, 229 S.W.3d

845, 848 (Tex. App.—Dallas 2007, no pet.); see TEX. PROB. CODE ANN. §§ 331-358 (West

2003 & Supp. 2012), repealed by Acts 2009, 81st Leg., ch. 680 (H.B. 2502), § 10(a),

effective January 1, 2014.; see also In re Estate of Hill, 2013 Tex. App. LEXIS 13975 (Tex.

App.—Beaumont Nov. 14, 2013). After the filing of a report of sale, which most persons

dealing with contemporary conveyances of real property would actually refer to as a

contract for sale, the trial court must inquire into the manner of the sale and hear

evidence for or against the report, and determine the sufficiency or insufficiency of the

representative's general bond, if any. See TEX. PROB. CODE ANN. § 355 (West 2003),

repealed by Acts 2009, 81st Leg., ch. 680 (H.B. 2502), § 10(a), effective January 1, 2014.

This is referred to as a “section 355 hearing.” If the trial court determines that the sale

was for a fair price, proper, and in conformity with the law and has approved any

increased or additional bond deemed necessary to protect the estate, the trial court

confirms the sale and authorizes the conveyance of the property upon the purchaser's

compliance with the terms of the sale. Id. Otherwise, the trial court sets the sale aside

and orders a new sale. Id.

        We review the action of the trial court in either confirming or setting aside a sale

for an abuse of discretion. Hirshfield v. Davis, 43 Tex. 155, 161 (Tex. 1875) (“much weight

is due to the large discretion which is unquestionably entrusted to the District Court.”).

The action of the trial court should be that demanded by the equity of the case and the


In the Estate of Stone                                                                Page 3
best interests of the estate.    Id. at 161-162.   If the land was sold for an unfair or

inadequate price, the sale was not "fairly made," and for that reason, should not be

confirmed. James v. Nease, 69 S.W. 110, 111 (Tex. Civ. App. 1902, writ dism’d). Further,

the purchaser has no title to the property unless the sale is confirmed; and, if there is a

conflict between his interest and that of the estate, the preference must ordinarily be

given in favor of the estate. Hirshfield, 43 Tex. at 162; Nease, 69 S.W. at 111.

THE JOHNS CONTRACT

        Taking his second issue first, we note that Johns contends the trial court erred by

not confirming his contract for sale of the property. Specifically, Johns argues that had

Orozco-Hardy filed a report of sale in 2010, when the contract was signed, the sale

would have been approved because it was for a fair price at that time.

Designation of Expert

        Because it could impact the remainder of our review of this issue if sustained, we

will address Johns’ sub-issue that the trial court erred in allowing the testimony of

Trinity’s expert, James Hodges.       Specifically, Johns argues that Hodges’ testimony

should have been excluded because Trinity, although being served with a request for

disclosure early in the proceedings, waited until after the section 355 hearing was set to

designate Hodges as an expert, thus failing to timely designate Hodges. See TEX. R. CIV.

P. 193.5(b); 193.6.

        Johns filed a motion to exclude evidence in the week prior to the section 355


In the Estate of Stone                                                               Page 4
hearing in which, among other things, he complained about Trinity’s lack of timely

response to Johns’ request for disclosure.          The motion was heard and denied

immediately prior to the hearing. When Hodges testified, however, no objection to his

testimony based on Trinity’s untimely designation was made. Thus, because Johns did

not object again at the time Hodges testified, his complaint on appeal is not preserved.

See TEX. R. APP. P. 33.1; Wilson v. Rice, 807 S.W.2d 836, 839 (Tex. App.—Waco 1991, writ

denied) (objection to testimony of witness at trial is waived by failure to object when

witness testifying; motion to exclude presented and heard immediately prior to trial

preserves nothing for review). See also Clark v. Trailways, Inc., 774 S.W.2d 644, 647-648

(Tex. 1989) (by failing to object when an undisclosed witness is offered at trial, a party

denies the trial court the opportunity to review and correct a prior ruling); Srite v.

Owens-Illinois, 870 S.W.2d 556, 565 (Tex. App.—Houston [1st Dist.] 1993), rev’d on other

grounds by Owens-Illinois, Inc. v. Estate of Burt, 897 S.W.2d 765, (Tex. 1995).

        Accordingly, we overrule Johns’ sub-issue and will consider Hodges’ testimony

in our review of Johns’ second issue.

Evidence

        In 2010, the 150 acre tract had been appraised by Alex Cannon who determined

the market value of only the surface interest to be $2,875 per acre, or $432,000 for the

entire tract. The value of the mineral estate was not appraised and was not included in

the total value of the land. Johns offered $432,000 for the fee simple property, both


In the Estate of Stone                                                              Page 5
surface and mineral interests.    Cannon testified at the section 355 hearing that, as

between Johns’ offer and an offer by Hadash, which was for $435,000 for the surface

interest only and the minerals were retained by the Estate, the offer by Hadash was a

more favorable offer for the Estate because of the mineral activity in the area. James

Hodges, an oil and gas consultant who had appraised mineral interests for 15 to 20

years, analyzed the mineral formations and production in the area and appraised the

minerals of the property at a range of $1,143 to $6,853 per mineral acre. He opined that

if he owned a tract of land and it was going to be sold, he would not sell the minerals

with it.

        Johns’ expert, Professor Stanley Johanson, agreed that an estate with the

potential for producing minerals would be more valuable than an estate with no such

potential. He also agreed that if this Estate sold the surface and mineral interests to

Johns for the same price as it could sell the surface interest only to Hadash, the Estate

would lose the benefit of retaining the minerals. Although Johanson testified that the

will only gave the beneficiaries the right to the proceeds of the sale of the property, not

a portion of the interest in the property such as the mineral interest, he agreed that it

was the responsibility and power of the probate court to decide whether a sale of estate

property was for a fair price.

        Johns’ certified real estate appraiser, Matthew Whitney, evaluated the property

in 2011 and in 2012 and determined a fair market value of the property to be $3,000 an


In the Estate of Stone                                                               Page 6
acre, or $450,000 for the entire tract. He believed Johns’ offer of $432,000 to be within a

reasonable range. He further testified that he adjusted the value of the land for the

minerals but also agreed that he was unable to separately evaluate the mineral interest

because mineral interests were rarely sold in the area. He also stated that he had no

training to appraise only the value of oil and gas minerals in place.

        At the section 355 hearing, Orozco-Hardy recommended that the trial court

accept the Hadash offer because Hadash was willing to pay the appraised value for the

surface only and the beneficiaries would be able to retain the minerals. Orozco-Hardy

also testified she had never been instructed by the beneficiaries to include any part of

the minerals in the sale of the property.        When Orozco-Hardy signed the Johns

contract, she was assured by the real estate agent, Don Lasiter, that the contract did not

convey any minerals to Johns. Later, when she was told that the contract did not

reserve any minerals to the estate, she sent an email to Johns the same day informing

him that the minerals were not intended to be conveyed. She testified that she did not

file a report of sale because of the problem with the mineral conveyance.

        Deposition testimony of Johns which was introduced at the section 355 hearing

showed that before the contract was signed, Johns knew the minerals were not to be

conveyed with the property. A series of emails introduced between Johns and Lasiter

showed that Lasiter reminded Johns that from the start, Johns knew no minerals were to

be conveyed and informed Johns that the contract provision including the conveyance


In the Estate of Stone                                                               Page 7
of the minerals was “an honest mistake.” Further, the Johns contract, introduced into

evidence, shows it became “null and void” on October 24, 2010, before the end of the 30

day period in which Hardy would have filed a report of sale pursuant to section 353 of

the Probate Code. See TEX. PROBATE CODE ANN. § 353 (West 2003), repealed by Acts

2009, 81st Leg., ch. 680 (H.B. 2502), § 10(a), effective January 1, 2014.

Argument

        Johns contends the sale to him should have been confirmed because Orozco-

Hardy was required to file a report of sale within 30 days from the date of the “sale”

and did not, and his contract was for a fair price in the relevant year of 2010. See TEX.

PROBATE CODE ANN. §§ 353, 355 (West 2003), repealed by Acts 2009, 81st Leg., ch. 680

(H.B. 2502), § 10(a), effective January 1, 2014.

        It was said long ago by the Texas Supreme Court that

        The mere fact of failure to return the account of sale within thirty days, as
        directed by the statute, unaccompanied by any circumstances showing
        that the delay of a few days had produced any injury or disadvantage to
        the estate or purchaser, could hardly be entertained as a ground of setting
        aside the sale. The important matter in this requisition of the statute is,
        that an account of sale shall be returned to the court for its action; the time
        of thirty days, which is fixed upon during which the administrator is
        required to perform this act, is directory, and may become material in
        reference to other circumstances; but not in the abstract, as presented in
        this case.

Brown v. Hobbs, 19 Tex. 167, 169 (Tex. 1857). Johns distinguishes this passage from

Brown because the delay here was two years and, he argues, he was injured or

disadvantaged because Trinity’s expert would not have been able to testify about the
In the Estate of Stone                                                                    Page 8
value of the mineral interest at that time. We disagree with Johns’ argument.

        There is no reason to believe that, had there been a report of sale and a section

355 hearing in 2010, Trinity would not have hired an expert to specifically evaluate the

mineral interest at that time. Orozco-Hardy testified that she did not know Johns had

accepted her counter offer until late September or early October 2010. She also testified

that there was not enough time at that point to notice all the parties and set a section 355

hearing within 30 days. Further, once she learned of a problem with the mineral

interest conveyance, which was counter to the instructions by the beneficiaries, she

decided not to file the report of sale. Additionally, the Johns contract expired within 30

days from the time Orozco-Hardy knew Johns had accepted her counter offer. Further,

Johns knew from the beginning of negotiations that the mineral interest would not be

conveyed with the property. Thus, from this evidence, there was no showing that Johns

was injured or disadvantaged by the failure to file the report of sale within 30 days.

Conclusion

        Although it seems obvious when stated, because the trial court could have

determined that a sale that included the surface and mineral interests at the appraised

value of the surface only would not be in the best interest of the Estate, the trial court

could have found that the Johns contract was not “fairly made” or was made for an

inadequate price.

        Accordingly, the trial court did not abuse its discretion in not confirming the


In the Estate of Stone                                                                Page 9
Johns contract. Johns’ second issue is overruled.

THE HADASH CONTRACT

        In his first issue, Johns argues that the trial court erred in confirming the Hadash

contract because it was not in compliance with the law, the will, or the procedures

pursuant to the Texas Probate Code.

        According to the Probate Code, once a report of sale is made, the court inquires

into the manner in which the sale was made, hears evidence in support of or against

such report, and determines the sufficiency or insufficiency of the representative’s

general bond, if any, and if “satisfied that the sale was for a fair price, was properly

made and in conformity with the law,” the court renders a decree confirming the sale.

TEX. PROBATE CODE ANN. § 355 (West 2003), repealed by Acts 2009, 81st Leg., ch. 680

(H.B. 2502), § 10(a), effective January 1, 2014.

        Johns’ argument takes issue with only the “in conformity with the law” prong of

the section 355 confirmation of sale to Hadash and complains that because the provision

for disbursement in the will was not followed and the application and order for sale

contemplated the sale of 100% of the property interest, that being both surface and

mineral interests, the trial court had no authority to confirm the Hadash contract which

was for the surface interest only. We disagree with Johns’ argument.

The Will

        The will of Henrietta Stone provided that her beneficiaries would receive the


In the Estate of Stone                                                               Page 10
proceeds from the sale of the residuary of her tangible property.              A settlement

agreement entered into by the beneficiaries did not alter this arrangement. However,

there is nothing within section 355 that requires compliance with the disbursement

provisions in a will within the phrase, “in conformity with the law.” Section 355

provides only that the decree confirming the sale show conformity with the “foregoing

provisions of the Code” which we interpret to mean the provisions regarding the sale of

property. Id. Johns has cited us to no case authority, and we have found none, that

requires a sale be in conformity with the will before a sale can be confirmed.

        Further, Johns has no standing to question the decision of the administratrix to

disburse the Estate in a manner contrary to the will. According to longstanding Texas

law,

        Any person interested in an estate may, at any time before any issue in
        any proceeding is decided upon by the court, file opposition thereto in
        writing and shall be entitled to process for witnesses and evidence, and to
        be heard upon such opposition, as in other suits.

TEX. PROB. CODE ANN. § 10 (Vernon 2003), repealed by Acts 2009, 81st Leg., ch. 680 (H.B.

2502), § 10(a), effective January 1, 2014; In re Estate of Bendtsen, 230 S.W.3d 832, 833 (Tex.

App.—Dallas 2007, pet. denied). The code defines "interested persons," in relevant part,

as “heirs, devisees, spouses, creditors, or any others having a property right in, or claim

against, the estate being administered . . .” Id. § 3(r), repealed by Acts 2009, 81st Leg.,

ch. 680 (H.B. 2502), § 10(a), effective January 1, 2014. Johns does not fall within any of

these statutory categories, nor does he have any pecuniary interest in the Estate, which
In the Estate of Stone                                                                 Page 11
Texas law requires. See In re Estate of Bendtsen, 230 S.W.3d at 834, citing Logan v.

Thomason, 202 S.W.2d 212, 215 (Tex. 1947) ("The interest referred to must be a pecuniary

one, held by the party either as an individual or in a representative capacity, which will

be affected by the probate or defeat of the will.").

        Thus, the fact that the disbursement of the proceeds of the estate is contrary to

the provision of the will is of no consequence in this § 355 hearing.

The Application for Sale and Order for Sale

        Johns also argues that because the application for sale and the order for sale

contemplate the sale of the entire 150 acre tract, including both surface and mineral

interest, the court could not confirm a sale of only the surface interest of the tract. He

relies on the opinions in Walker, Vineyard, and Andrews for the proposition that in this

particular fact pattern, the confirmation would be invalid. In Walker, no order of sale

was ever entered; thus the decree confirming the sale was invalid. Walker v. Sharpe, 807

S.W.2d 448, 451 (Tex. App.—Corpus Christi 1991, writ denied).           In Vineyard, the

question for the appellate court to answer was whether an order of sale was a final,

appealable order. Vineyard v. Irvin, 855 S.W.2d 208 (Tex. App.—Corpus Christi 1993, no

writ). In Andrews, the question was whether the probate court had the authority to

correct the confirmation order and the deed from the administrators. Andrews v. Koch,

702 S.W.2d 584 (Tex. 1986).      In reaching its conclusion, the Texas Supreme Court

determined that both an order of sale and a confirmation of the sale are necessary for a


In the Estate of Stone                                                             Page 12
valid transfer of property from an estate. Id. at 586. None of these cases support Johns’

argument.

        Here, we have an application, an order, and a decree confirming the sale. The

Application for Sale of Real Property describes three separate tracts of land to be sold

and lists the Estate’s interest in each tract as 100%. It does not, as Johns argues, request

the sale of 100%, all surface and mineral interests, of the Estate property. Further, the

Order of Sale of Real Property orders that the property described in the order, the three

tracts of land with no percentage indicated, be sold at a private sale for cash. It does

not, as Johns also argues, require the sale of the fee simple interest, 100%, in essence

surface and mineral interests, of each tract. Just as the Probate Code does not require

the sale of all property listed in an application and an order to one buyer, there is no

statutory prohibition to confirming a sale of a lesser interest in property when a fee

simple interest is listed in the application and the order for sale as being owned by the

Estate. Cf. Carson v. Estate of Carson, 601 S.W.2d 171, 174 (Tex. App.—Corpus Christi

1980, writ ref’d n.r.e.) (“There is nothing in the Texas Probate Code which requires that

the minerals be severed from the surface and that either the surface or the minerals be

sold separately.”). To follow Johns’ argument to its logical extension, neither Johns’ nor

Hadash’s contracts could be confirmed because neither were for a purchase of 100% of

the Estate’s real property, in essence, all three tracts of land identified in the application

to sell and the order of sale. Thus, the trial court could confirm a sale of less than the fee


In the Estate of Stone                                                                 Page 13
simple interest owned by the Estate in any tract identified in the order of sale.

        Accordingly, the trial court had the authority to confirm the Hadash contract,

and Johns’ first issue is overruled.

CONCLUSION

        Having determined that the trial court did not abuse its discretion in failing to

confirm the Johns contract and that the trial court had the authority to confirm the

Hadash contract, we affirm the trial court’s Decree Confirming Sale of Real Property

which confirmed the sale of the 150 acres of surface interest only to Hadash.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 2, 2014
[CV06]




In the Estate of Stone                                                              Page 14
