                                                                                 ACCEPTED
                                                                            06-14-00020-cv
                                                                  SIXTH COURT OF APPEALS
                                                                       TEXARKANA, TEXAS
                                                                        1/5/2015 3:35:28 PM
                                                                            DEBBIE AUTREY
                                                                                     CLERK

                       No. 06-14-00020-CV
________________________________________________________________
                                                           FILED IN
                                                    6th COURT OF APPEALS
                   In the Court of Appeals of Texas   TEXARKANA, TEXAS
                             Sixth District         1/5/2015 3:35:28 PM
                           Texarkana, Texas             DEBBIE AUTREY
                                                            Clerk
________________________________________________________________

           WENDOLYN MESSNER, DEPENDENT ADMINISTRATOR
                           Appellant

                                 v.

 MARK L. BOON, BOON SHAVER ECHOLS COLEMAN & GOOLSBY, P.L.L.C.,
                            Appellees
________________________________________________________________

                         On Appeal from the
              County Court at Law of Rusk County, Texas
                         Hon. Chad Wes Dean
                   Trial Court Cause No. 02-043 A
________________________________________________________________

                APPELLANT’S MOTION FOR REHEARING
________________________________________________________________

                                      PAUL W. TURNER
                                      Texas Bar No. 24037619
                                      400 S. Alamo, Suite A
                                      Marshall, Texas 75670
                                      (903) 935-0135 (phone)
                                      (903) 935-0235 (facsimile)
                                      pturner@thelawofficeofpwt.com
                                      COUNSEL FOR APPELLANT




                                  1
                                               TABLE OF CONTENTS

Cover ....................................................................................................................... 1

Table of Contents ..................................................................................................... 2

Index of Authorities ................................................................................................. 3

Issues Presented for Review .................................................................................... 5

Misstatements of Facts and Law in the Court’s Opinion ........................................ 6

Argument ............................................................................................................... 14

Prayer ..................................................................................................................... 21

Certificate of Compliance and Certificate of Service ............................................ 22

Appendix Table of Contents .................................................................................. 23




                                                              2
                                      INDEX OF AUTHORITIES

CASES

Belt v. Oppenheimer, Blend, Harrison & Tate, Inc.,
   192 S.W.3d 780, 787 (Tex. 2006) ......................................................... 11, 18-19

Borissoff v. Taylor & Faust,
  15 Cal. Rptr.3d 735, 739 (Cal. 2004) ............................................................... 19

Bookman v. Davidson,
  136 So. 3d 1276, 1278-80 (Fla. 1st DCA 2014) ............................................... 19

Brightwell v. Barlow, Gardner, Tucker & Garsek,
   619 S.W.2d 249, 251 (Tex. Civ. App.—Fort Worth 1981, no writ) ................ 12

Isaacs v. Schleier,
      356 S.W.3d 548, 559 (Tex. App.—Texarkana 2011, pet. denied) ........ 14-15

Hall v. Huff,
  957 S.W.2d 90, 95 (Tex. App.—Texarkana 1997, pet. denied) ....................... 16

Huie v. DeShazo,
  922 S.W.2d 920, 925 (Tex. 1996) .................................................................... 12

Limestone Prods. Distrib., Inc. v. McNamara,
   71 S.W.3d 308, 311 (Tex. 2002) ........................................................................ 9

NationsBank of Tex., N.A. v. Akin, Gump, Hauer & Feld, L.L.P.,
  979 S.W.2d 385, 391 (Tex. App.—Corpus Christi 1998, pet. denied) ............ 12

Overton v. Bengel,
  139 S.W.3d 754, 759 (Tex. App.—Texarkana 2004, no pet.) .......................... 12

Read v. United States ex rel. Department of Treasury,
  169 F.3d 243, note 8 (5th Cir. 1999) .................................................................. 6

Smith v. O’Donnell,
  288 S.W.3d 417, 420-21 (Tex. 2009) ...................................................... 6, 16-18


                                                     3
Vinson & Elkins v. Moran,
   946 S.W.2d 381, 387, 398
   (Tex. App.—Houston [14th Dist.] 1997, writ dism'd) ............................... 11, 19

STATUTES

I.R.C. §2010 ............................................................................................................. 6

I.R.C. §2056 ............................................................................................................. 6

I.R.C. §2505 ............................................................................................................. 6

Tex. Estates Code §351.054 .................................................................................. 17

Tex. Estates Code §351.151 .................................................................................. 17

Tex. Estates Code §361.153 .................................................................................. 18

Tex. Prob. Code §224 ............................................................................. 5, 11, 17-20

Tex. Prob. Code §233 ............................................................................................ 17

Tex. Prob. Code §233A ......................................................................................... 17

SECONDARY SOURCES

American College of Trust and Estate Counsel,
  Commentaries on the Model Rules of Professional Conduct
  (4th ed., 2006), 1.13 .......................................................................................... 12

Julie E. Bennett, “You Do Not Represent the Estate,”
   Minnesota Lawyer (September 7, 2009) .......................................................... 12

Elias Clark, et al.,
   Cases and Materials on Gratuitous Transfers: Wills, Intestate Succession,
   Trusts, Gifts, Future Interests and Estate and Gift Taxation
   (West Group 1999), p. 845, 897 ......................................................................... 6




                                                             4
                            ISSUES PRESENTED FOR REVIEW

1. The Court did not address the contention of Appellant Wendolyn Messner,
   Dependent Administrator (“Wendolyn”) that Appellee Mark L. Boon (“Boon”)
   breached his fiduciary duty when he gave false testimony at his deposition in an
   attempt to mitigate his failure to marshal the assets of Trust C for the benefit of
   the estate of Delbert M. Messner (“Delbert”) and to assist his friend, Jim
   Hughey.1

2. Can Wendolyn bring a claim against Boon on behalf of Delbert’s estate for
   legal malpractice that occurred after Delbert’s death and during the
   administration of the prior personal representative of Delbert’s estate, Juanita
   Bengel (“Bengel”)?2

3. The Court did not address the argument of Wendolyn that pursuant to Section
   224 of the Texas Probate Code, the rights and powers of the original personal
   representative of Delbert’s estate, Bengel, flowed to Wendolyn as successor
   personal representative.3




1
  C.R. 26-28, 158; Appellant’s Brief, p. 39-40.
2
  Wendolyn is not waiving her claim that the basis for the Court’s decision was improper because
this ground for summary judgment was not made in the motions for summary judgment.
3
  C.R. 156-57; Appellant’s Brief, p. 37-38.

                                               5
          MISSTATEMENTS OF FACTS AND LAW IN THE COURT’S OPINION

       There are several misstatements facts and law that need to be corrected in

the Court’s Opinion. To facilitate communication, Wendolyn shall use the

abbreviated terms found in the Opinion (e.g., “University” means “LeTourneau

University,” “Smith” means “Smith v. O’Donnell, 288 S.W.3d 417 (Tex. 2009)”).

       On page 3 of its Opinion, the Court states that “Decedent’s Trust B … was

designed to take advantage of the available marital deduction.” Later, on page 4,

the Court states that “the marital deduction in 2000 was $675,000.00.” These two

statements are incorrect. According to the Statement of Facts in Appellant’s Brief,

which Boon conceded as being “substantially correct,”4 Trust B “was to contain

property worth $675,000.00, the exclusion amount for estate tax purposes in

2000.”5 The exclusion amount is the value of the cumulative taxable transfers that

a person may make without incurring a tax on the transfers.6 The exclusion amount

is not the same as the marital deduction. The marital deduction is unlimited now

and was unlimited in 2000.7 In other words, a decedent can transfer as much

property as she wishes to her spouse without incurring any tax liability.8 The Court


4
  Boon Appellees’ Brief, p. 3.
5
  Appellant’s Brief, p. 12.
6
  I.R.C. §§ 2010, 2505; Elias Clark, et al., Cases and Materials on Gratuitous Transfers: Wills,
Intestate Succession, Trusts, Gifts, Future Interests and Estate and Gift Taxation (West Group
1999), p. 845.
7
  I.R.C. §2056; Clark, Gratuitous Transfers, p. 897; C.R. 334-35.
8
  I.R.C. §2056(a). Read v. United States ex rel. Department of Treasury, 169 F.3d 243, note 8
(5th Cir. 1999); C.R. 217.

                                                6
needs to modify its opinion to show that Trust B was designed to take advantage of

the exclusion amount which was $675,000.00 in 2000.

       Wendolyn believes that the Court should clarify the undisputed meaning of

the acronym “GPOA” on page 6 of its Opinion. GPOA means “general power of

appointment.”9

       On page 6 of its Opinion, the Court states that Boon testified at some point

in his deposition that in 2005 Bengel wrote a $293,241.77 check to the University,

and this check “was for Trust C assets.” Later, on page 23 of its Opinion, the Court

repeats its belief that “Boon testified that Bengel herself wrote a check to the

University for Trust C assets.” Boon did not testify that the check for $293,241.77

“was for Trust C assets.”10 Moreover, any such testimony would have been

erroneous since the value of the assets assigned to Trust C was $188,586.00 and

not $293,241.77.11 Consequently, the Court should strike any statements in its

Opinion that Boon testified Bengel wrote a check in the amount of $293,241.77 to

the University for Trust C assets.

       On page 8 of its Opinion, the Court states: “On May 16, 2011, the

University, Hughey, and successor trustee, Ben March, filed suit against all the

beneficiaries of Delbert’s estate, among others …” This statement is incorrect.


9
  Appellant’s Brief, p. 15; C.R. 230.
10
   C.R. 229-31, 294, 304-05.
11
   C.R. 227, 304, 312; Appellant’s Brief, p. 13.

                                                   7
Only the University filed suit in May 2011, as stated in the Statement of Facts in

Appellant’s Brief.12 Jim Hughey, trustee, and Ben March, as successor trustee, later

joined or were joined to the lawsuit.13

       Boon has alleged that the beneficiaries of Delbert’s estate filed

counterclaims in the LeTourneau Litigation that are substantially identical to the

claims that Wendolyn has brought in this litigation.14 Boon’s factual allegation has

no evidentiary support, as Wendolyn pointed out in response to the summary

judgment motions and in her brief.15 There is no evidence in the record showing

that all of the beneficiaries brought counterclaims that are substantially identical to

Wendolyn’s claims.16 To underscore this point, Wendolyn showed it was

impossible for all of the beneficiaries to have brought counterclaims in the

LeTourneau Litigation because one of the beneficiaries, Masonic Lodge, did not

even make an appearance in that lawsuit.17 But the Court appears to have

misinterpreted Wendolyn’s observations because on page 8 of its Opinion, the

Court erroneously states: “In response to the … [LeTourneau Lawsuit], the

beneficiaries of Delbert’s estate, except for the Masonic Lodge … countersued,

arguing that Hughey never distributed the assets in Trust A and Trust C to


12
   Appellant’s Brief, p. 16-17; C.R. 26, 213-14, 285-86, 296-97.
13
   C.R. 94, 120.
14
   C.R. 43-44, 131, 133; Boon Appellees’ Brief, p. 28-29.
15
   C.R. 152, Appellant’s Brief, p. 17, 33-34.
16
   C.R. 152; Appellant’s Brief, p. 17, 33-34.
17
   Appellant’s Brief, p. 17; C.R. 38, 85, 94-96, 116-23, 152, 294-95.

                                                8
Delbert’s beneficiaries and that he had instead used all of the assets to fund the

Delbert and Barbara Messner Scholarship Trust …” The evidence in the record

shows that only Michele and Oil Field Girls, Ltd. filed this type of counterclaim in

the LeTourneau Lawsuit.18 There is no evidence in the record showing that

Michael T. Messner, the Masonic Home for Aged Mason, the Masonic Home and

School of Texas, or the Perritte Memorial Methodist Church brought counterclaims

in the LeTourneau Litigation that are substantially the same as the ones that

Wendolyn has brought in this litigation. Moreover, the Court can reasonably infer

that Michael did not bring such counterclaims because he did not join Michele and

Oil Field Girls, Ltd. (which succeeded to only Michael’s mineral interests and not

to any other property he inherited from Delbert’s estate)19 in the pleading in which

his co-defendants asserted these counterclaims even though he was represented by

the same attorney.20Therefore, the Court should correct the statements made on

pages 8 and 10 of its Opinion that Wendolyn’s claim in this litigation are “similar

to the counterclaims filed by the LeTourneau Defendants.”

       On pages 8-9 of its Opinion, the Court states: “After the LeTourneau

Defendants filed an expert report concluding that Delbert had the general power of

appointment and that it was validly exercised, all remaining claims arising out of

18
   C.R. 85-91, 95-96, 152; Appellant’s Brief, p. 17, 33-34.
19
   Appellant’s Brief, p. 17, 33; C.R. 97-98, 295.
20
   Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); C.R. 85-91,
297.

                                              9
the LeTourneau lawsuit were settled.” There is nothing in the record showing that

the LeTourneau Defendants filed such an expert report. There is, however, an

expert report of Ronald R. Cresswell.21 But this report was prepared only for

Samson Lonestar, LLC, one of the defendants in the LeTourneau Litigation.22

Finally, there is nothing in the record showing that the report, prepared in October

2012,23 somehow precipitated or was a major factor contributing to the Settlement

of April 2013.24

       The Court states on page 10 of its Opinion that Wendolyn “hired the same

attorney that represented the LeTourneau Defendants.” This statement is wrong.

Instead, the record reveals: Paul W. Turner represented only Michael, Michele, and

Oil Field Girls, Ltd.;25 E. McAlister Benchoff was the attorney for the Masonic

Home for Aged Mason and the Masonic Home and School of Texas;26 and Bill

Pedersen, Jr. was the attorney for the Perritte Memorial Methodist Church.27

       On page 19 of its Opinion, the Court states Wendolyn argued that “she

stepped into Bengel’s shoes as the successor trustee [emphasis added].” The term

“trustee” is incorrect. Bengel was never a trustee of any trusts established by the



21
   C.R. 328-47.
22
   C.R. 328.
23
   C.R. 330.
24
   C.R. 92, 104-115.
25
   C.R. 121.
26
   C.R. 122.
27
   C.R. 123.

                                        10
Trust Agreement.28 Instead, Wendolyn has argued that she stepped into Bengel’s

shoes as the successor “personal representative” of Delbert’s estate.29 More

importantly, for her metaphor, Wendolyn relies more on Section 224 of the Texas

Probate Code as well as Vinson & Elkins v. Moran, 946 S.W.2d 381, 398 (Tex.

App.—Houston [14th Dist.] 1997, writ dism'd) than Belt.

       In its discussion of Boon’s limitations defense on page 23 of its Opinion, the

Court states that “Boon testified … that the [2005] accounting was available to the

beneficiaries at Stringer’s office.” Although Boon did give such testimony,30 this

evidence was not presented at the trial court level for Wendolyn to challenge.31

Instead, in their motions for summary judgment, Boon and Stringer did not offer

any evidence to show what “accounting records were available in 2006 to review,”

much less any evidence to show that they were available to the beneficiaries.32

Wendolyn pointed out this lack of evidence in her response to the Boon and

Stringer’s motions for summary judgment.33 Therefore, the Court should strike its

statement that the 2005 accounting was available to the beneficiaries in Stringer’s

office.


28
   C.R. 164, 188. Bengel was, however, trustee of some testamentary trusts that were terminated.
C.R. 233.
29
   C.R. 156-57; Appellant’s Brief, p. 37-38, note 122 (quoting for support Vinson & Elkins v.
Moran, 946 S.W.2d 381, 398 (Tex. App.—Houston [14th Dist.] 1997, writ dism'd).
30
   C.R. 234.
31
   C.R. 32-33, 132.
32
   C.R. 39.
33
   C.R. 148.

                                              11
       On page 24 of its Opinion, the Court states: “There is nothing in the record

showing that Boon, who represented Bengel, was also representing the estate …”

This statement seems to be saying that Delbert’s estate could have been Boon’s

client just as Bengel was his client. Under Texas law, an attorney represents the

personal administrator of the estate and not “the estate,”34 although the language in

some court opinions would suggest to the contrary—“the attorney for the estate”35

or “the attorney … who now represents the estate.”36 Consequently, no evidence

could be submitted showing that Boon was providing legal services to the estate as

well as Bengel.

       There is a second problem on page 28 of the Opinion. The Court writes:

“Boon … argues that the estate was not included as a party to the LeTourneau

[L]awsuit because ‘[i]t has long been settled that the ‘estate’ of a decedent is not a

legal entity and may not sue or be sued as such.’” Boon has never made this

argument. Nor has Wendolyn or Stringer. Instead, in her response to the motions

for summary judgment, Wendolyn cited the rule that an estate cannot sue or be

sued in response to Boon and Stringer’s motions for summary judgment in which


34
   American College of Trust and Estate Counsel, Commentaries on the Model Rules of
Professional Conduct (4th ed., 2006), 1.13; Huie v. DeShazo, 922 S.W.2d 920, 925 (Tex. 1996);
NationsBank of Tex., N.A. v. Akin, Gump, Hauer & Feld, L.L.P., 979 S.W.2d 385, 391 (Tex.
App.—Corpus Christi 1998, pet. denied); Julie E. Bennett, “You Do Not Represent the Estate,”
Minnesota Lawyer (September 7, 2009).
35
   Overton v. Bengel, 139 S.W.3d 754, 759 (Tex. App.—Texarkana 2004, no pet.).
36
   Brightwell v. Barlow, Gardner, Tucker & Garsek, 619 S.W.2d 249, 251 (Tex. Civ. App.—Fort
Worth 1981, no writ).

                                             12
they had argued that “the Estate,” (i.e., Delbert’s estate) should have learned of its

claims against them by 2006.37 Consequently, the Court should remove this portion

of its Opinion in which it purports to recount an argument made by Boon.




37
     C.R. 38-40, 43-44, 147, 152.

                                         13
                                        ARGUMENT

1. Boon breached his fiduciary duty by giving false testimony.

       On pages 11 and 12 of its Opinion, the Court points out that Wendolyn has

alleged two grounds for finding that Boon had breached his fiduciary duty. First, a

jury could find that he gave false testimony at his deposition when he stated that he

had always been concerned about the validity of Delbert’s power of appointment,

though he never expressed this concern to anyone and, understandably due to the

plain language of the Trust Agreement, had difficulty giving a good reason for this

concern.38 Alternatively, a jury could find that Boon breached his fiduciary duty by

not disclosing this concern to Delbert or Bengel.39 The Court addressed the

alternative grounds for Boon’s alleged breach of fiduciary duty, Boon’s failure to

disclose his concerns, and found that this theory of liability does not “allege the

type of dishonesty or intentional deception that will support a breach-of-fiduciary-

duty claim.”40 But the Court did not address the other grounds alleged by

Wendolyn for finding that Boon had breached his fiduciary duty, namely, Boon’s

false testimony at his deposition.

       The allegation that Boon lied at his deposition involves the type of

dishonesty or intentional deception that will support a claim for breach of fiduciary

38
   C.R. 26-27, 54-55, 157-58; 246, 277, 342; Appellant’s Brief, p. 18, 20, 39.
39
   C.R. 26-27, 54-55, 157-58, 277; Appellant’s Brief, p. 20, 39.
40
   Opinion, p. 14-18 (citing Isaacs v. Schleier, 356 S.W.3d 548, 559 (Tex. App.—Texarkana
2011, pet. denied).

                                             14
duty.41 Moreover, by giving testimony designed to create the impression that

Delbert might not have had a power of appointment over Trust C, Boon also

engaged in self-dealing at the expense of Delbert, his former client.42 In other

words, he simultaneously tried to minimize his fault in not obtaining the assets of

Trust C for Delbert’s estate43 and frustrated the explicit instruction of Delbert that

he wanted as little trust property to go to the University and as much to go to the

beneficiaries of his estate.44 Finally, this false testimony supported the claim of his

personal friend, Jim Hughey, that the University, Hughey’s employer, was the

ultimate beneficiary of the assets in Trust C.45 In short, Wendolyn has alleged that

Boon lied in order to put his own interest ahead of that of his former client,

Delbert. The Court’s Opinion fails to address Wendolyn’s initial allegation

supporting a claim for breach of fiduciary duty.

2. Wendolyn can bring claims against Boon on behalf of Delbert’s estate for
   legal malpractice that occurred after Delbert’s death and during Bengel’s
   administration.

       On page 20 of its Opinion, the Court states that “claims alleging that Boon

failed to properly advise Bengel in her role as administrator of Delbert’s estate are

not based on injury to Delbert … instead, the injury, if any, was to Bengel.” Then,


41
   Opinion, p. 17; Isaacs v. Schleier, 356 S.W.3d 548, 559 (Tex. App.—Texarkana 2011, pet.
denied).
42
   Isaacs v. Schleier, 356 S.W.3d 548, 559 (Tex. App.—Texarkana 2011, pet. denied).
43
   C.R. 27, 55, 158, 251, 276; Appellant’s Brief, p. 39.
44
   C.R. 25, 53, 202-03, 217; Appellant’s Brief, p. 13.
45
   C.R. 157-58; Appellant’s Brief, p. 15, 20.

                                             15
in note 6, also on page 20 of the Opinion, the Court mentions “the trial court’s

grant of summary judgment on claims asserted against Bengel.” There is no

evidence in the record showing an injury or damages to Bengel or that any claims

were ever asserted against Bengel,46 whom the Court observed could not even be

sued for negligence due to the exculpatory clause in Delbert’s will that Boon

drafted.47 Instead, there is much evidence showing that while Boon was

representing Bengel as the administrator of Delbert’s estate, he was negligent in his

admitted duty of assisting Bengel in marshaling some of the assets of Delbert’s

estate, specifically Trusts A and C, thereby causing injury or damages to Delbert’s

estate.48 Finally, although Boon raised a straightforward privity defense (i.e.,

Wendolyn could not sue Boon because he was never her attorney), the Court’s

novel basis for affirming the trial court’s summary judgment (i.e., Wendolyn

cannot sue Boon because any negligence on his part was an injury only to Bengel)

is improper because it was not raised at the trial level or even in Boon’s brief.49

       The language found on page 20 of the Opinion appears to be due to the

Court’s misreading of Smith. According to the Court, although Bengel and

Wendolyn can sue Boon on behalf of Delbert’s estate for a negligent act that

occurred during Delbert’s life, only Bengel (or the personal representative of
46
   C.R. 22-29, 50-57.
47
   Opinion, p. 27; C.R. 142-43.
48
   C.R. 251, 275-77, 337-42.
49
   C.R. 133-35; Appellee Boon’s Brief, p. 5-8; Hall v. Huff, 957 S.W.2d 90, 95, note 11 (Tex.
App.—Texarkana 1997, pet. denied).

                                               16
Bengel’s estate) can sue Boon for a negligent act that occurred after his death and

during her administration provided Bengel (or her estate) suffers damages.50

Although the second fact pattern is what happened in Smith,51 the Texas Supreme

Court does not state or even imply in its opinion that this inefficient, domino-like

process is procedurally necessary in order for a personal representative or his

successor to bring a claim on behalf of the estate that is directly injured or

damaged by a negligent act. In fact, under the Court’s analysis on page 20 of its

Opinion, anyone who caused damages to Delbert’s estate during Bengel’s

administration (at least anyone with whom Bengel contracted including Stringer)

could not be sued by a successor personal representative of Delbert’s estate. But

Sections 224, 233, 233A of the Texas Probate Code give personal representatives

and their successors the authority “to collect all claims and debts due the estate”

regardless of whether the wrongful conduct giving rise to the claim occurred

during the decedent’s life or after death … and without waiting for a beneficiary to

sue or settle with them.52 In distinguishing claims that a personal representative

may bring for damages or harm to the estate based on when the negligent act

occurred (before or after the decedent’s death), the Court ignores the near identical

interests of the decedent and his estate: “An estate’s interests … mirror those of the


50
   Opinion p. 20, note 6.
51
   Smith v. O’Donnell, 288 S.W.3d 417, 420-21 (Tex. 2009).
52
   Tex. Prob. Code §§233, 233A (now Tex. Estates Code §§351.054, 351.151).

                                            17
decedent”53 and “a decedent's interests should mirror those of his estate.”54 In

summary, the statements on page 20 of the Opinion reflect an improper and novel

view of Texas law, which explains why neither Boon nor Stringer raised it in the

trial court.55

3. Section 224 of the Texas Probate Code gives Wendolyn the right to pursue
   claims for legal malpractice against Boon that Bengel herself could have
   brought.

       On page 18-21 of its Opinion, the Court discusses Boon’s argument that

Wendolyn’s lack of privity bars her claims for negligence against him. To defeat

Boon’s argument, the Court states that Wendolyn “cites to Smith v. O’Donnell, 288

S.W.3d 417, 419 (Tex. 2009).” But Wendolyn never cited to or discussed Smith,

and neither did Boon.56 More importantly, the Court never considered her principal

argument for overcoming Boon’s privity defense: Section 224 of the Texas Probate

Code.57 According to that statute, a successor personal representative, like

Wendolyn, has “all rights, powers, and duties of his predecessor,” unless otherwise

specified in the decedent’s last will and testament.58 Moreover, in her brief,

Wendolyn cited to a Texas case in which the Fourteenth Court of Appeals

interpreted the statute to mean that a successor personal representative could sue a

53
   Smith v. O’Donnell, 288 S.W.3d 417, 421 (Tex. 2009).
54
   Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780, 787 (Tex. 2006).
55
   C.R. 30-48, 133-35.
56
   C.R. 133-35, 155-57; Appellant’s Brief, p. 6; Appellee’s Brief, p. v.
57
   C.R. 155-57; Appellant’s Brief, p. 36-38, notes 122-24.
58
   Tex. Prob. Code §224 (now Tex. Estates Code §361.153); C.R. 156; Appellant’s Brief, p. 37,
Appendix Page 80.

                                              18
law firm for legal malpractice that had occurred during a predecessor’s

administration of an estate.59 Wendolyn also noted that the California Supreme

Court relied on a statute similar to Section 224 of the Texas Probate Code to

overcome a law firm’s defense of lack of privity.60 Very recently, in May 2014, a

Florida appellate court also held that a statute similar to Section 224 of the Texas

Probate Code overcame an attorney’s defense of lack of privity to a malpractice

claim brought by a successor personal representative.61 Finally, as the Texas

Supreme Court noted in Belt, the rationale for the privity barrier “does not apply

when an estate's personal representative seeks to recover damages incurred by the

estate itself.”62 In this case, Wendolyn seeks to recover damages incurred by

Delbert’s estate itself due to Boon’s negligence;63 and she does so without relying

on extrinsic evidence but on the documents prepared by Boon himself and his own

admissions at his deposition.64 In summary, the Court should address Wendolyn’s

counter-argument based on Section 224 of the Probate Code and reconsider its



59
   Appellant’s Brief, notes 122, 128; Vinson & Elkins v. Moran, 946 S.W.2d 381, 387, 398 (Tex.
App.—Houston [14th Dist.] 1997, writ dism'd) (noting that although not assignable, legal
malpractice claims passed from the executors, who had hired Vinson & Elkins to assist them in
administering an estate, to a successor representative because the successor “stepped into the
shoes” of his predecessors pursuant to Section 224 of the Texas Probate Code).
60
   C.R. 156; Appellant’s Brief, notes 126-27; Borissoff v. Taylor & Faust, 15 Cal. Rptr.3d 735-37
(Cal. 2004) (citing Section 8524(c) of the California Probate Code).
61
   Bookman v. Davidson, 136 So. 3d 1276, 1278-80 (Fla. 1st DCA 2014) (citing Section 733.614
of the Florida Statutes).
62
   Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780, 787 (Tex. 2006).
63
   C.R. 53-56.
64
   C.R. 141-43, 202-22, 217, 342; Appellant’s Brief 13-14.

                                               19
holding that Wendolyn cannot bring claims against Boon for legal malpractice

occurring during Bengel’s administration.




                                       20
                                     PRAYER

      For the reasons states in this motion, Wendolyn asks the Court to grant this

motion for rehearing, withdraw its opinion, correct its misstatements of law and

facts, address her argument concerning Boon’s breach of fiduciary duty for giving

false testimony at his deposition, and address her argument that Section 224 of the

Texas Probate Code overcomes Boon’s defense of privity whose rationale does not

apply in this case.



                                             Respectfully submitted,

                                             /s/ Paul W. Turner____________
                                             Paul W. Turner
                                             Texas Bar No. 24037619
                                             400 S. Alamo, Suite A
                                             Marshall, Texas 75670
                                             903-935-0135 (phone)
                                             903-935-0235 (facsimile)
                                             pturner@thelawofficeofpwt.com
                                             Counsel for Appellant




                                        21
                         CERTIFICATE OF COMPLIANCE

       This motion for rehearing complies with Texas Rule of Appellate Procedure
9.4(i) because it contains 4,457 words (excluding the parts of the motion exempted
by this rule).

      Signed on January 5, 2015.

                                             /s/ Paul W. Turner____________
                                             Paul W. Turner


                            CERTIFICATE OF SERVICE

       I certify that on January 5, 2015, I served a copy of Appellant’s Motion for
Rehearing on counsel for Appellees listed below by electronic service and the
electronic transmission was reported as complete. My email address is
pturner@thelawofficeofpwt.com.


Michael L. Dunn
Smead, Anderson & Dunn
2110 Horseshoe Lane
Longview, Texas 75605
Counsel for Appellees Mark L. Boon and
Boon Shaver Echols Coleman & Goolsby, P.L.L.C.

                                             /s/ Paul W. Turner____________
                                             Paul W. Turner




                                        22
                                     APPENDIX TABLE OF CONTENTS

I.R.C. §2010 ............................................................................................................. 1

I.R.C. §2056 ............................................................................................................. 2

I.R.C. §2505 ........................................................................................................... 10

Tex. Estates Code §351.054 .................................................................................. 11

Tex. Estates Code §351.151 .................................................................................. 12

Tex. Estates Code §361.153 .................................................................................. 13

Tex. Prob. Code §224 ............................................................................................ 15

Tex. Prob. Code §233 ............................................................................................ 16

Tex. Prob. Code §233A ......................................................................................... 16

American College of Trust and Estate Counsel,
  Commentaries on the Model Rules of Professional Conduct
  (4th ed., 2006), 1.13 .......................................................................................... 18

Julie E. Bennett, “You Do Not Represent the Estate,”
   Minnesota Lawyer (September 7, 2009) .......................................................... 22

Elias Clark, et al.,
   Cases and Materials on Gratuitous Transfers: Wills, Intestate Succession,
   Trusts, Gifts, Future Interests and Estate and Gift Taxation
   (West Group 1999), p. 845, 897 ....................................................................... 24




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