in Re: Estate of Frances J. Hutchins

V4rit of Jandainiis COfl(litiOllaIlV Ctanted Opinion Filed November 13, 2012

in The
(Cnitrt uf 441iil
fifth rIjitrjct uf rxu at )aI1as
No. 05-12--01b98-CV

IN RE ESTA’I’E OF FRANCIS J. HUTCHINS, DECEASED

Original Proccedin from Probate Court No. 1
Dallas County, Texas
Trial Court Cause No. PR-11-01594-l

OPINION
Befoae Justices Bridges. Lang, and Fillmore
Opinion By Justice Lang

In this mandamus proceeding. relator Susan E. Jones, independent executrix of the Estate of

Frances J. Hutchins, Deceased (the “Estate”), seeks to vacate the trial court’s June 5, 2012 “Order

Denying Motion for Turnover Order” and obtain a trial court order requiring real party in interest

Karen J. Coyle to deliver certain property in her possession to Jones. Because we conclude the trial

court abused its discretion and relator has no adequate remedy by appeal, we conditionally grant the

writ of mandamus.

1. FACTUAL AND PROCEDURAL BACKGROUND

The decedent, Francis J. Hutchins, died on April 9,2011. Hutchins left a written “Last Will

In addition to Oling the petition for writ ol mandamus addressed herein, Jones Bled in this Court cause number 05l2-0l 1 63-C’V, in
which she challenges by appeal (1) the probate court’s June 5. 2012 order at issue and (2) a related probate court order imposing sanctions against
Jones and her trial counsel. By separate opinion issued this date, the appeal in cause number 05l 2-011 63-CV is dismissed for want ofjurisdietion.
and Testament” that provided (I) Jones. a daughter of Hutchins. was to receive all right, title, and

interest in a certain residential property owned by Hutchins; (2) Donna J. Smith. another daughter

of Hutchins, was to receive $100,000; and (3) the remainder ofthe estate was to be divided equally

among Jones, Smith, and Coyle, a third daughter ofilutehins. After Hutchins’s death and before the

will was filed for probate, Coyle obtained possession of certain property that had belonged to

Hutchins at the time of her death, including a 2008 Chrysler 300 automobile (the “car”) and at least

one item ofjewelry.

An application for probate ofHutchins’s will and issuance of letters testamentary was filed

by Jones on May 16, 2011. On June 2,2011, the will was admitted to probate and, pursuant to the

terms of the will, Jones was appointed independent executrix of the Estate and was issued letters

testamentary. Coyle filed an “Entry ofAppearance” on July 19,2011. On July 25,2011, Jones filed

an “Inventory Appraisement, and List of Claims” that stated in part

The following is a full, true and complete Inventory and Appraisement ofall personal
property and ofall real property ofthe Estate, together with a List ofClaims due and
owing to this Estate as of the date of death, which have come to the possession or
knowledge of the undersigned.

The inventory list included, in part, the ear and several items of jewelry. The “Inventory,

Appraisement, and List of Clainwa” was “approved” by the trial court in an order dated July 27,2011.

In an “Interim Order” dated September 14, 2011, the trial court ordered Coyle (1) to provide

a sworn inventory of all property ofthe Estate in her possession (2) not to “sale [sic], encumber or

transfer” the car or “any jewelry of the [E]state”; and (3) to deliver the title to the car to the trial

court Coyle delivered the car tide to the trial court
2 and filed an inventory list of what she termed

“disputed” property in her possession. That inventory list included the car, a small clock, and four

I
- Subsequently. in an order dated April IL 2012. the trial court nleascd the car title to Coyle’s anorney.

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jewelry items. At the bottom ol that list, Coyle stated. “ [lie foregoing items were distributed to

Karen Coyle by the Executrix of this Estate, Susan Jones. None of these items were removed from

this Estate without permission ol the Executrix.”

On \iav 9. 201 2. Jones filed a document titled “Motion for lumovcr Order,” which stated

it was a “Motion for lurnover of property of the Estate.’ Jones stated therein that, as executor of

the Estate, she was seeking possession of certain Estate property from Coyle “under the authority of

Texas Probate Code 37.” The property sought included the car, the small clock, and live jewelry

items. Jones contended in part

Executor fears [Coyle] may damage, sale [sic], or diminish the value of the property
during the pendency of this suit because [Coyle] refused to surrender possession of
the property when specifically and rightfully requested by Executor to do so. This
refusal by [Coyle] is an intentional concealment of the property and therefore
jeopardizes the estate’s interest in the property.

Jones requested therein that “a Turnover Order issue and that Movant receive all further relief to

which Movant may be entitled.” Attached to the “Motion fbr Turnover Order” was an affidavit of

Jones in which she testified that on approximately April 14. 2011, Covle took possession of Estate

property, specifically the car and various jewelry items, and has refused to return that property upon

req nest.

Coyle responded by filing an “Objection to Motion for Turnover Order.” in that objection,

Coyle cited section 3 1.002 of the Texas Civil Practice and Remedies Code and stated, in part, as

follows:

A turnover order is a procedural device available to a party, through
injunction or other means, in order to reach property to obtain satisfaction on a
judgment. The purpose of the turnover statute (3 1.002, Texas Civil Practice and
Remedies Code) is to assist a judgment creditor in reaching certain property of a
judgment debt or to obtain satisfaction on a judgment. A turnover order is not
applicable to nonjudgmcnt debtors. This is because the turnover statute is purely
procedural in nature and does not provide for the determinate [sic] of substantive
rights.

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 Jones’ Motion must be denied because it fails to comply with the mandatory
requirements of the Civil Practice and Remedies Code. To be entitled to relief
requiring a party to turnover certain property. the requesting party must have obtained
ajudgment against thc other party. Jones has not obtained ajudgment against Coyle.
Here., Jones is attempting to bypass the appropriate process for adjudicating
legitimate property disputes by using a procedural device reserved exclusively for
parties who have already obtained a judgment against a debtor.

(emphasis original) (citations omitted).

At the hearing on the “Motion for Turnover Order,” Coyle’s counsel argued the trial court

should dismiss Jones’s motion because, pursuant to the authority cited in Coyle’s objection, “a

turnover order is only available to a judgment creditor.” Counsel for Coyle asserted that Jones had

not “attained a judgment” and therefore had not “satisfied the basic statutory requirements to even

be here today.”

Counsel for Jones argued in part

This request is merely for [Coyle] to return the items that belong to the estate to the
independent executor. There is an order signed by this court stating that the inventory
is approved. There’s been no objections to that inventory. So there is an existing
order that this Court has signed, stating that the property that we’re requesting Karen
Coyle return to the executor is properly ofthe estate. And that is what Rule 37 ofthe
Probate Code seeks to address, a civil matter—a civil way for people to have
property of the estate to return it.

Additionally, Jones testified at the hearin& in relevant part, as follows:

Q. And did you prepare and file an inventory of the estate of [Francis] J. Hutchins
with this Court?

A. I did.

Q. Was one of those items that was in that inventory a 2008 Chrysler 300?
A. It was.

Q. Was another one of those items one diamond bracelet?
A. Yes.

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 Q. And the Will provided that the—-that these items be divided between the three
siblings—the three children of Francis J. Hutchins equally; is that correct?

A. Yes. sir.

Q. Okay. Have you requested on more than one occasion for Karen Coyle to return
those items to you as the independent executor of the estate?

A. Yes, sir.

Q. Has she refused on all occasions?
A. Yes, sir.

Q. Are you asking this Court for an order to order Karen Coyle to return [the Estate
property in her possession] to you by a date certain so that you can comply with the
terms of the Will and comply with your responsibilities under the Texas Probate
Code?

A. Well, yes, sir.

After the above-referenced “Order Denying Motion for Turnover Order” was signed by the

respondent trial judge. the trial court made findings of fact and conclusions of law that included, in

part, the following:

1. Findings of Fact

2. Jones filed her Motion for Turnover Order asking the Court to issue an order
requiring Coyle to turnover to Jones various items that allegedly belong to the Estate.

3. Coyle denies Jones’ allegations and filed an Objection thereto.

4. Jones has not obtained a Judgment against Coyle.

6. Jones offered no evidence that she has obtained a Judgment against Coyle, and
offered no evidence that she is a judgment creditor and that Coyle is a judgment
debtor.

7. This Court heard no evidence concerning the substantive rights of any property.

IL Conclusions of Law

1. Based on the evidence and testimonypresented, the Court has concluded that Jones
has not obtained a Judgment against Coyle.

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 2. This Court concludes that a turnover order is a procedural device available to a
party in order to reach property to obtain satisfaction on a judgment and does not
provide for the determination of substantive rights of property.

3. This Court further concludes that a turnover order is not available in this Cause
because there is no judgment against Coyle.

This mandamus proceeding followed.

II. APPROPRIATENESS OF MANDAMUS RELIEF

A. Applicable Law

Mandamus will issue if the relator establishes a clear abuse ofdiscretion for which there is

no adequate remedy by appeal. In re Odyssey Hkhca Inc., 310 S.W.3d 419,422 (rex. 2010)

(orig. proceeding); In re Deere & Co.. 299 S.W.3d 819, 820 (Tex. 2009) (orig. proceeding); hi re

Prudential Ins. Co. ofAm.. 148 S.W.3d 124, 135—36 (Tex. 2004) (orig. proceeding). A trial court

abuses its discretion ifit reaches a decision so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Cerbenis

Capital Mgmt.. L.P., 164 S.W.3d 379,382 (Tex. 2005) (orig. proceeding); In re Ta Ant Express,

Inc. 190 S.W.3d 720, 723 (Tex. App.—Dallas 2005, orig. proceeding). Whether an appellate

remedy is adequate depends heavily on the circumstances presented. In re Prudential, 148 S.W.3d

at 136—37; see In it McA lien Met Ctr., Inc., 275 S.W.3d 458,468 (Ta. 2008) (orig. proceeding).

In determining whether appeal is an adequate remedy, we consider whether the benefits outweigh

the detriments ofmandamus review. In re BPProds. N. Am., Inc., 244 S.W.3d 840,845 (Ta. 2008)

(orig. proceeding); see also hi re Gu(f Exploration, 289 S.W.3d 836, 842 (‘rex. 2009) (orig.

proceeding) (“There is no definitive list of when an appeal will be ‘adequate,’ as it depends on a

careful balance of the case-specific benefits and detriments of delaying or interrupting a particular

proceeding.”). An appellate remedy is not inadequate merely because it may involve more expense

or delay. See In re Prudential, 148 S.W.3d at 136.

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 B. Analysis

1. Abuse of Discretion

Jones contends the trial court abused its discretion by committing the following errors of law:

(1) “treating the motion as brought solely pursuant to Section 3 1 .002 of the Civil Practice and

Remedies Code,” rather than “looking at the substance of the relief requested” and (2) “determining

that the motion depended upon a determination of substantive rights as to ownership of the property

when the Executrix’s right to possession of the property under Probate Code Section[j 37 was

absolute” We address these contentions together.

Section 37 of the Texas Probate Code, titled “Passage of Title Upon Intestacy and Under a

Will,” provides in relevant part

When a person dies, leaving a lawful will, all of his estate devised or bequeathed by
such will . shall vest immediately in the devisees or legatees of such estate
. -

subject, however, to the payment of the debts of the testator or intestate, except such
as is exempted by law, and subject to the payment of court-ordered child support
payments that are delinquent on the date of the person’s death; but upon the
...

issuance of letters testamentary or of administration upon any such estate, the
executor or administrator shall have the right to possession of the estate as it existed
at the death of the testator or intestate, with the exception aforesaid; and he shall
recover possession of and hold such estate in trust to be disposed of in accordance
with the law.

TEx. PROB. CoDE ANN. § 37 (West 2003).

Section 3 1 .002 of the Texas Civil Practice and Remedies Code is titled “Collection of

Judgment Through Court Proceeding.” TEx. Civ. PRAC. & REM. CODE ANN. § 31.002 (West 2008).
Under that statute, “[a] judgment creditor is entitled to aid from a court of appropriate jurisdiction

through injunction or other means in order to reach property to obtain satisfaction on the judgment

if the judgment debtor owns property, including present or future rights to property, that: (1) cannot

readily be attached or levied on by ordinary legal process; and (2) is not exempt from attachment,

execution, or seizure for the satisfaction of liabilities.” Id. § 31.002(a). Pursuant to section 31 .002,

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the court may (1) order thejudgment debtor to “turn over” nonexempt property that is in the debtor’s

possession or is subject to the debtor’s control to a designated sheriffor constable for execution; (2)

otherwise apply the property to the satisfaction of the judgment; or (3) appoint a receiver with the

authority to take possession ofthe nonexempt property, sell it. and pay the proceeds to thejudgment

creditor to the extent required to satisfy the judgment. Itt §31.002(b). Further, the statute provides

“[a] court may enter or enforce an order under this section that requires the turnover ofnonexempt

property without identifying in the order the specific property subjec(tb turnover.” Id. §31.002(h).

Jones asserts “[t]he Motion for Turnover Order expressly cited Section 37 and described the

relief requested, which clearly was not, and was never intended to be, a request fir a statutory

turnover under the Section 31.002.” According to Jones. “the use ofthe term ‘turnover order’ is not

exclusive to a statutory turnover proceeding under Section 31.002.” Further, Jones argues, her

argument and testimony at the hearing “explicitly referred to the Executrix’s Probate Code Section

37 rights and that the Executrix was merely requesting an order for delivery of the property to the

court-appointed Independent Executrix.”

Coyle asserts “Jones never once argued that the Turnover Motion need not comply with

Section 31.002, even after Coyle’s attorney devoted his opening argument exclusively to the fact that

Jones did not comply with the statutory and procedural requirements under Section 3 1.002.”

Further, Coyle contends that even if the trial court improperly treated Jones’s motion as a request

for a statutory turnover order, “the judgment must be upheld because [the trial court] reached the

correct result.”

“[W]e look to the substance of a motion to determine the relief sought, not merely to its

title.” Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (rex. 1999); accord State Bar

ofTa. v. Heard, 603 S.W.2d 829,833 (rex. 1980); see Johnson v. State Farm Lloyds, 204 S.W.3d

-8-
897. 899 n. 1 (Tec 2006), a/f ci, 290 SW.3d $86 (Tex, 2009) (construing motion titled

“Motion to Compel Appraisal” as motion for summary judgment because movant stated in motion

that she was seeking summary judgment); see also TFx. R. Civ. P. 7 1 (stating that when party has

mistakenly designated any pleading, court shall treat it as ifit had been properly designated if justice

so requires). Further, an appellate court “must uphold a correct lower court judgment on any legal

theory befbre it, even if the court gives an incorrect reason for its judgment” Guaranty Cnty. Mat.

Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986); VictOria Gardens of frrisco v. Walrath, 257

S.W.3d 284. 290 (Tex. App.—Dallas 2008, pet. denied). A trial court “cannot abuse its discretion

if it reaches the right result.” Luxenberg v. Marshall, 835 S.W.2d 136, 142 (Tex. App.—Dallas

1992. orig. proceeding); accord in t’e O’Quinn, 355 S.W.3d 857, 862 (Tex. App.—l-louston [1st

Dist.] 2011, orig. proceeding).

The title of the motion in question sought “turnover” relief and, in a broad sense, the motion

could include a request for “turnover” pursuant to section 31.002 of the civil practice and remedies

code. See TEX. Civ. PRAC. &REM. CODE ANN. § 3 1.002(h) (referring to “turnover” of property);
Akin, Gun’zp, Strauss, flauer & Feld, L.L.P. v. Nat’l Dcv. & Research Corp., 299 S.W.3d 106, 113

(Tex. 2009) (stating that section 3 1.002 is “commonly referred to as the ‘turnover statute”).

However, looking to the substance of the “Motion for Turnover Order,” we conclude the motion was

a specific request for relief pursuant to section 37 of the probate code and sought turnover of

possession of the property listed in the motion in connection with the pending administration of the

Estate, See Surgitek, 997 S.W.2d at 601; Heard, 603 S.W.2d at 833; Johnson, 204 S.W.3d at 899;

see also TEX. PROB. CODE ANN. § 37. Further, we conclude the record shows the trial court
improperly determined section 31.002 to be the sole ground for the motion and denied the motion

based on Jones’s failure to meet the requirements of that statute.
 Next, we address Coyle’s contention that, regardless of that error, the trial court “reached the

correct result” Coyle asserts in her response in this Court that “shortly” after Hutchins’s death and

“prior to the probate administration,” Jones, Smith, and Coyle, the only devisees of Hutchins’s will,

“orally agreed to distribute a substantial portion of her personal property in a manner different from

her WilL” Coyle contends the property on the inventory list she filed in the trial court was

“permanently distributed” to her by a “Family Agreement of 100 percent of the Decedent’s heirs and

devisees,” which, according to Coyle, constituted a “family settlement agreement.” Therefore, Coyle

argues, “legal title” to that property passed to Coyle before Jones sought recovery of such property

and “Jones was divested of any right of possession.” Further, Coyle contends that “[wjhile Section

37 may create a mechanism for the Court to enforce the Executor’s right to possess property clearly

owned by the Estate, the Court cannot improperly apply that law to disputed facts, and by refusing

to do so, the Court did not abuse it[sJ discretion.”
3

Additionally, Coyle asserts Jones failed to employ the proper “mechanism” for recovering

the property in Coyle’s possession. Coyle contends “where an estate’s interest in property is

disputed, the title must be cleared through a proceeding ancillary to the base probate administration

cause before a probate court is obligated to order a beneficiary to turnover property the title to which

has been deemed to belong to the estate.” Coyle contends a “lawsuit” pursuant to section 233A of

Attached to Coyle’s response in this Court is a September21, 2012 affidavit by her that she cites in support ofherargument that a family
settlement agreement existed. In that affidavit, Coyle describes an alleged agreement by her. Jones. and Smith as to distribution of 1-lutchins’s
property. However, Coyle does not describe or mention any agreement not to probate Hutchins’s will. See lore Estate a/Ha/bert. 172 S.W.3d 194,
200 n. 11 (Tex. App.---—Texarkana 2005, pet. denied) (“A valid family settlement agreement must contain both an agreement not to probate a will and
an agreed plan of distribution to replace the plan set forth in the will.”) (emphasis original) (citing lore Estate ofMorris, 577 S.W.2d 748, 756 (Tex.
Civ. App——Amarillo 1979, writ ref’d n.r.c.)). Jones filed a September 25, 2012 motion to strike from Coyle’s response “material that is not in the
trial court’s record nor presented to the trial court and references thereto or based thereupon.” By separate order, this Court granted Jones’s September
25, 2012 motion to strike to the extent the motion sought to exclude”material that is not in the trial court’s record nor presented to the trial court.”
See Sabine OfJ/hore Serv,, Inc. v City ofPort Arthur, 595 S.W.2d 840, 841 (Tex. 1979) (affidavits outside record cannot be considered by appellate
court for any purpose other than detemtining its own jurisdiction); accord In re C’ortez, 143 S.W.3d 265, 268 n.6 (Tex. App.—San Antonio 2004,
orig. proceeding); lb re Garcia, No. 0504000l0Cv. 2004 WL 52080, at *1 (Sex. App—Dallas Jan. 13,2004, orig. proceeding) (mem, op.) (“The
Court may not consider evidence not presented to the decision maker prior to her decision on review with this Court.”) (citing Sahine O/j4hore, 595
S.W.2d at 841). Jones’s September 25, 2012 motion to strike was in all other respects denied.

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the probate code is the proper “mechanism” for seeking recovcry of the property in Coyle’s

possession, anti Jones has not filed such a lawsuit. According to Coyle. [gJiven Jones’s authority

to seek a judgment declaring the substantive rights to the disputed [p]roperty. the [trial court] does

not abuse its discretion in refusing to act pursuant to Section 37 in Ilvor ofadjudicating the contested

issues under Section 233A.”
4 Further, in support of her assertion that an “ancillary” action is

required in this case, Coyle cites an administrative order of the Presiding Statutory Probate Court

Judge. See Statutory Probate Courts of Tex., lnstnsctions for Filing Probate and Guardianship

Proceedings, Related Matters, andAncillaryProceedings, Administrative Order 2006-14 (Oct. 23,

2006).

First, we address Coyle’s argument as to the proper “mechanism” for seeking recovery ofthe

property in her possession. On its lice, administrative order 2006-14 provides direction to probate

court clerks respecting file management procedures. See id. Specifically, that order instnzcts probate

clerks that actions which are ‘ancillary” to a “principal” probate file should be “placed in a new file,”

linked to the “principal file,” and given a new cause number. See ii Coyle does not explain, and

the record does not show, how administrative order 2006-14 imposes obligations on persons other

than probate clerks. See iS

Section 233A of the probate code, titled “Suits by Executors or Administrators,” states

Suits for the recovery ofpersonal property, debts, or damages and suits for title or
possession of lands or for any right attached to or growing out of the same or for
injury or damage done thereto may be instituted by executors or administrators
appointed in this state; and judgment in such cases shall be conclusive, but may be
set aside by any person interested for fraud or collusion on the part of such executor
or administrator.

Coylestatcs in her response in this Court that she does not disagree that (1)Jones ‘can seek relief under 5ecdon 37 to enfoite her right
4
of possession of cstate property” and (2) “a separate lawsuit maybe unnecessary to cnlbrce Jones’ tights under section 37 ifthe tide to the utty
at issue is undisputcd7

—Il-—
TEx. PRow Coin ANN. § 233A.

Jones argues “no separate. independent suit with a different cause number was required.”

According to Jones, “Section 37 is enforceable by an order to deliver the property.” In support of

that position, Jones cites two cases, Bloom i Beas 706 S.W.2d 146, 147—48 (Tex. App.—Houston

[14th Dist] 1986, orig. proceeding), and Ailanile Insurance Co. v. Fulfr. 417 S.W.2d 302,305 (Tex.

Civ. App.—Fort Worth 1967, writ ref’d n.r.c.). Additionally, Jones asserts that if section 233A is

the necessary “mechanism” for “executing” section 37, the motion at issue “constituted a proper

pleading and ‘suit” and therefore satisfied the requirements of section 233A.

In Bloom, husband and wife died simultaneously in a helicopter crash. See 706 S.W.2d at
a

147. The wife’s will left her property to the children of her first marriage in the event her husband

did not survive her. Ict The husband’s will left his estate to his mother, Mary Lieberman, ifhis wife

did not survive him. kL Lieberman was in possession of numerous items that had belonged to the

decedents at the time of death. Id. Relators, the executors of the estates of the husband and wife,

attempted to have Lieberman deliver the property in her possession to them. Id. Lieberman filed

an inventory list of the property held by her but refused to deliver the property to relators because

she claimed “possession by virtue of a lien lawfully executed on the subject property to secure

payment of storage fees.” id. Liebennan asserted that until the issue ofthe lien was resolved by the

trial court, “‘an order effecting the right of possession of the property’ cannot be rendered.” Ii

Relators filed a mandamus proceeding in the Fourteenth Court ofAppeals in Houston in which they

requested that the probate court judge be directed to sign an order commanding the delivery of the

property in dispute to them. Id. The court of appeals conditionally granted the writ of mandamus.

Id. The court of appeals stated in part

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 Section 37 of the Probate Code provides that the executor shall have the right to “

possession of the estate as it existed at the death of the testator ; and he shall
recover possession of and hold such estate in trust to be disposed of in accordance
with the law [cx Prob Codc Ann 37 (Vcrnon Supp 1986) Construing this
along with Sections 232 and 233 of the Probate Code, the Fort Worth Court of Civil
Appeals stated in Atlantic Insurance Company v. Fulj, 417 SAV2d 302 (Tex. Civ.
App—Fort Worth 1967, writ ref’d n.r.c.) that the executor not only has the right to
possession but has the duty to acquire such possession. This right of possession and
control is not limited by the fact that there are no debts, and it is immaterial that an
heir or devisee has possession of the property, because such possession is subject to
the executor’s right of possession and his right under such circumstances is
enforceable by court order. Atlantic Insurance Company, 417 SAV.2d at 305. We
agree with this interpretation of the statutes, Counsel for Mary Lieberman cites no
authority and our research reveals none in support of her claim that she is entitled to
maintain possession of the property until the validity of her claim is settled.

id. at 147—48.

Based on Bloom and Atlantic Insurance Co., we conclude a separate “lawsuit” pursuant to

section 233A was not a required “mechanism” for seeking recovery of the property in Coyle’s

possession. See Bloom, 706 S.W.2d at 147—48; Ail, Ins. Co., 417 S.W.2d at 305. Further, in the

“Motion for Turnover Order,” Jones clearly stated that she sought to recover the property listed in

the motion as executor of the Estate. Therefore, Jones’s motion sought the relief contemplated by

section 233A. See Surgitek, 997 S.W.2d at 601; 1-Jeard, 603 S.W.2d at 833; Johnson, 204 S.W.3d

at 899; TEx. P.Civ. P. 71; see also TEX. PROB. CODE ANN. § 233A.
Second, we consider Coyle’s argument respecting a family settlement agreement. Even

assuming without deciding that a valid family settlement agreement existed in this case,
5 we cannot

agree with Coyle that such agreement precluded Jones’s section 37 right to possession of the

property in Coyle’s possession. Coyle contends “upon distribution ofthe Decedent’s assets pursuant

It is Coyle’s burden to contest the probating of the will premised upon a family settlement agreement. See In re Estate ofMo rris, 577
S.W2d at 757. The record does not show Coyle made any objection respecting the admission of the will to probate or the issuance of letters
testamentary to Jones. See In re Estate 0! Ha/bert, 172 SW3d at 200 ii. 11 Further, there is no evidence in the record before the probate court as
to an agreement not to probate Hutchins’s will or as to an agreed plan of distribution to replace the plan set forth in the will.” See jet.

1,,
—I.)—
to the Family Agreement, the subsequentlyappointed Executrix never had a right to control the items

distributed to Coyle and Smith.” According to Coyle, “while Section 37 may provide a general rule.

it can be superceded by the agreement of the family members,” Additionally, Coyle argues “it is

impossible to apply Section 37 without a determination that the property over which the executor

seeks to recover possession is, in fact, property of the estate” and Jones “has not established she has

legal title to the property.”

In support of her position that the alleged family settlement agreement “superceded” section

37, Coyle cites Anderson u. Ffuie, 266 S.W.2d 410, 412 (Tex. Civ. App.—Dallas 1954, no writ).

Specifically, she quotes the court’s statement in that case that “[w]hen an independent executor

distributes an estate to heirs or devisees, he loses all control over it and cannot thereafter administer

it.” Id. However, Andetcon did not involve a family settlement agreement, but rather distributions

by an independent executor in the course of administration of an estate. See id. According to Coyle,

the case before us involves property “distributed” prior to the admission of Hutchins’s will to probate

and prior to the appointment of an independent executor. Thus, Anderson is distinguishable on its

facts. See id. Coyle cites no case, and we have found none, in which a court has concluded that

section 37 is “superceded” when devisees enter into a family settlement agreement and a probate

court later admits the decedent’s will to probate and issues letters testamentary.

Further, section 37 provides that an executor has “the right to possession of the estate as it

existed at the death of the testator or intestate.” TEx. PROB. CODE ANN. § 37 (emphasis added).
That section is not limited to property as to which rights are undisputed at the time possession is

sought. See Bloom, 706 S.W.2d at 147—48 (concluding devisee was not “entitled to maintain

possession of the property until the validity of her claim is settled”). Coyle argues Bloom is

distinguishable because that case did not involve a family settlement agreement and “at the time that

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the Court [in Bloom I would have entered the Order compelling the turnover ot the property, there

was no dispute that the property actually belonged to the Estate.” 1-lowever. Coyle does not explain,

and the record does not show, how the property rights asserted pursuant to the timily settlement

agreement alleged in this case are outside the scope of the reasoning of Bloom. See id.

The record shows the parties do not dispute that Jones was issued letters testamentary.

Therefore, pursuant to section 37, Jones had “the right to possession of the estate as ii existed at the

death of i/ic’ it’s/utor or iiztcciate” and was required to “recover possession of and hold such estate

in trust to be disposed of in accordance with the law.” Tux. PR0B. CODE ANN. § 37 (emphasis
added). The record shows Jones filed an inventory of Estate property that included the property she

now seeks to recover from Coyle and such inventory was approved by the probate court without

objection. Although Coyle claims rights in the property in question, she does not contend, and the

record does not show, that the property sought in the “Motion for lurnover Order” was not part of

the Estate as it existed at Hutchins’s death. Consequently, on this record, we conclude Jones was

entitled under section 37 to recover possession of the property listed in the “Motion for Turnover

Order.” See it!.; Bloom, 706 S.W.2d at 147—48. The validity of any claims of Coyle to the property

must be determined by the probate court after relator regains possession of the property in question.

See TEX. PROB. CODE ANN. § 37; Bloom, 706 S.W.2d at 147-48.

Accordingly, on this record, we conclude the trial court abused its discretion by (1)

determining that the “Motion for Turnover Order” was solely a motion for relief under section

3 1.002 and denying that motion based on Jones’s failure to meet the requirements of that statute and

(2) not ordering Coyle to deliver to Jones all property in her possession that was requested in the

‘Motion for Turnover Order.”

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 .2. Adequate Reined by Appeal

Next. we address Jones s assertion that appeal is not an adequate remedy because “the order

complamed of is not an appealable order. Coyle responds (1) Jones has “an adequate remedy by

ordinary appeal” because the order complained of “does not preclude Jones from seeking the other

legal remedies provided under the Probate Code for an executor wishing to recover property they

believe is owned by the estate” and (2) Jones’s assertion that mandamus must issue so that she can

distribute the estate is “disingenuous.

Generally, appeals may be taken only from final judgments. DeAiala i’. A’iackie, 193 S.W.3d

575, 57 (1 cx. 2006) (citing Lehninnn v. fiarCoii Coip., 39 S.W.3d 191, 195 (Tex. 2001 )); in re

Guardianship of Miller, 299 S.W.3d 179, 183 (Tex. App.—Dallas 2009, no pet.). Further, except

when “specifically provided by law,” there maybe but “one final judgment” rendered in any cause.

TEX. R. Civ. P .30 1. However, “[probate proceedings are an exception to the ‘one final judgment’

rule; in such cases. multiple judgments final fbr purposes of appeal can be rendered on certain

discrete issues.” 1*’ Avala. 193 S.W.3cl at 578 Lc’h,nann, 39 S.W.3d at 192. The supreme court

has adopted the following test for probate appeals:

If there is an express statute. declaring the phase of the probate proceedings to be
. .

final and appealable, that statute controls. Otherwise, if there is a proceeding of
which the order in question may logically be considered a part, but one or more
pleadings also part of that proceeding raise issues or parties not disposed of then the
probate order is interlocutory.

C’rowson v. Wakeham, 897 S.W.2d 77g. 783 (Tex. l995) see DeAiala, 193 S.W.3d at 578.

Coyle cites no authority in support of her assertions respecting Jones’s “other legal remedies

provided under the Probate Code” or the alleged “disingenuous” argument of Jones. See TEx. R.

App. P. 52.4, 52.3(h). Further, at least one court has concluded that mandamus is a proper remedy

respecting an independent executor’s unsuccessful attempt to recover property pursuant to the

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provisions of the probate code. See Bloom. 706 S.W.2d at 147. On this record, we conclude Jones

lacks an adequate remedy on appeal. See id.: see also Crowcon, 897 S.W.2d at 783.

HI. CONCLUSION

On this record, we conclude Jones has shown the trial court abused its discretion by (1)

determining that the “Motion for Turnover Order” was solely a motion for relief under section

31.002 and denying that motion based on Jones’s failure to meet the requirements ofthat statute and

(2) not ordering Coyle to deliver to Jones all property in her possession that was requested in the

“Motion for Turnover Order.” Further, we conclude Jones has shown she has no adequate remedy

by appeal as to the trial court’s abuse of discretion. Consequently, we conditionally grant Jones’s

petition for writ of mandamus. A writ will issue only in the event the trial court fails to (1) vacate

its June 5,2012 “Order Denying Motion forTurnover Order” and (2) render an order requiring Coyle

to deliver to Jones all property in her possession that was requested in the “Motion for Turnover

Order.”

DOUGLØ LANG
.
4
JUSTIc

12 1098F.P05

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