Opinion issued February 11 , 2016

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 15
- 00193
- CV

——————————— JOHN LAWTON , Appella nt

V. DAVID W. LAWTON, IND IVIDUALLY, AS FORMER INDEPENDENT EXECUTOR OF THE ESTA TE OF JOSEPH G. LAWTON, DECEASED, AND AS FORMER AGENT FOR JOSEPH G. LAWTON UNDER A

POWER OF ATTORNEY , Appell e e s
On Appeal from the County Court at Law No. 1

Fort Bend County, Texas Trial Court Ca se No. 14
- CCV
- 053769

MEMORANDUM OPINION Appellant John Lawton sued his brother David Lawton asserting breach of fiduciary duty and requesting a declaratory judgment in connection with David’s allege d mismanagement of their father’s estate . David moved for summary2

judgment, arguing that because he had closed the estate, J ohn’s claims were barred by res judicata . The trial court granted summary judgment in David’s favor and awarded him attorney’s fees. Because res judicata does not foreclose John’s claims against David, we reverse and remand. Background Estate administra tion begins After John and David’s father Joseph died on March 21, 2009, David initiated Cause No. 09

- CPR

- 021945 in Fort Bend County Court at Law No. 1 to probate Joseph’s will (the “estate administration ”)

. Lawton v. Lawton , No. 01

- 12

- 00932

- CV, 2014 WL 3 408699, at *1 (Tex. App.

— Houston [1st Dist.] July 10, 2014, no pet.) . David, who had served as Joseph’s agent before his death under a power of attorney, was appointed executo r. In June 2011, John filed a demand for an estate accounting. John files p ro bate claims case In November 2011, John sued David in Fort Bend County Court at Law No.
1 . In his original petition, John sought estate and power of attorney accountings, requested that David be removed as executor, and that John be awarded attorney’s
fees. Id. John’s petition was docketed in a separate proceeding, Cause No. 09

- CPR

021945

- A (the “probate claims case”). David moved for summary judgment in the probate claims case and set the motion for a hearing. Id. On the morning of the3

hearing, John filed an amended petition asserting a breach of fiduciary duty claim based upon David’s:

 Mismanagement of Joseph’s estate;

 Failure to protect John’s interests as a beneficiary;

 Failure to disclose all material facts to the estate and John;

 Fa ilure to provide estate and power of attorney accountings;

 Failure to timely distribute estate assets;

 Self

- dealing and converting John’s assets for David’s benefit; and

 Conflict of interest. John also sought a declaratory judgment that, among other things , John had standing
to demand accountings from David. On June 29, 2012, t he trial court dismissed without prejudice John’s amended petition for failure to comply with Rule of Civil Procedure 63 and granted summary judgment in David’s favor in the probate claims case

. Id. On July 31, 2012, John filed a motion for new trial, which the trial court denied in a written order on September 19, 2012. Id. John appealed.4

David closes the estate Meanwhile, on July 11, 2012, two weeks after summary judgment was granted in the probate claims case, David filed a verified closing repor t in the estate administration

. Id. John objected on August 10, 2012 on the grounds that:

 The estate and David were parties to the pending probate claims case, and closure of an esta te is only proper when there is no pending litigation; and

 The statements contained in David’s report were false. The trial court signed an order overruling John’s objections and cl osing the estate on September 4 , 2012, the same day that the trial court d enied John’s motion for new trial in the probate claims case. Id. John appeals the probate claims case In the probate claims case appeal, John argued that the trial court erred in grantin g summary judgment in David’s favor

. Id. at *2. David, for his par t, argued that John’s claims were moot because the es tate was closed

. Id. A panel of t his
Court agreed and held that John’s claims were moot because they were premised upon the existence of the estate, which had b een closed. Id. at *4

– 5. The panel issu ed its original opinion in March 2014 , but later withdrew the original opinion and issued an opinion on rehearing in July 2014; both opinions held that John’s claims were moot. Id. at *1 n.1. The panel vacated the su mmary judgment in David’s favor and di smissed John’s petition, observing, however, that “ the closing5

of the estate does not foreclose John from potentially pursuing a breach of fiduciary duty claim against David that alleges mismanagement of the estate. ” Id. at *5. John sues in d

istrict court Shortly after the panel’s original opinion issued, John sued David in Fort Bend district court for breach of fiduciary duty and a declaratory judgment . David responded with a plea to the jurisdiction. The district court granted the plea an d dismissed the case for lack o f subject

- matter jurisdiction. The present case John then sued David in Fort Bend County Court at Law No. 1

. John sought a declaratory judgment that, among other things, he had standing to demand an accounting from David re lated to the power of attorney and to pursue claims against David for exercising that power. John also asserted a breach of fiduciary duty claim along the lines of what he had asserted in the dismissed probate claims case , but adding the allegation that D avid breached his fiduciary duty by closing the estate with knowledge of John’s pending claims against him. David moved for summary judgment, or in the alternative, sanctions. He argued that John’s claims were barred by res judicata, because the closure o f the estate over John’s objection s constituted a final judgment on the merits of John’s breach of fiduciary duty and declaratory judgment claims. David also argued that the claims could only have been brought in the estate administration because they6

rel ated to David’s actions as executor

. With respect to John’s request for a declaratory judgment that he was entitled to a power of attorney accounting , David argued that this request was barred by a four

- year statute of limitations and was moot b ecause the estate had closed. In response to the motion for summary judgment, John argued that closure of the estate did not adjudicate his claims because the Estates Code expressly provides that claims against an executor for estate mismanagement survive closing of the estate unless the executor obtains a declaratory judgment discharging liability, which David did not do. John argued that under the plain language of the Estates Code, his estate mismanagement claims were not resolved by the estate ’s closure and we re not required to be asserted in the estate administration. John also argued that his request for a de claratory judgment that he was entitled to a power of attorney accounting was a discovery issue, not an affirmative claim subject to limitations. John argued that the request for an accounting was not moot, because it was not a claim he was raising on behalf of the estate and was instead merely a r equest for evidence of David’s actions under the power of attorney. The trial court granted summary judgm ent and awarded David attorney’s fees. Res Judicata In his first issue, John argues that the trial court erred in granting David summary judgment, because his claims against David are not barred by res judicata

.7

A. Standard of Review We review a trial court’ s summary judgment de novo. Travelers Ins. Co. v. Joachim, 3 15 S.W.3d 860, 862 (Tex. 2010). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every
reasonable inference and reso lve any doubts in the nonmovant’ s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In a traditional summary

-

judgment motion , the movant has the burden to show that no genuine issue of material fact exists and that the trial court should grant judgment as a matter of law. T EX
. R. C IV
. P. 166a(c); KPMG Peat Marwick v.
Harrison C ty. Hous. Fin. Corp., 9 88 S.W.2d 746, 748 (Tex. 1999). A defendant moving for traditional summary judgment on an affirmative defense has the burden to conclusively prov e all the elements of the affirmative defense as a matter of law

. Sci. Spectrum, Inc. v. Martinez , 941 S.W.2d 910, 911 (Tex.1997).
B. Applicable Law “Res judicata, or claims preclusion, prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit.” Barr v. Resolution
T rust Corp. , 837 S.W.2d 627, 628 (Tex. 1992); see Smith v. Brown , 51 S.W.3d 376, 379 (Tex. App.

— Houston [1st Dist.] 2001, pet. denied). Res judicata promotes the8

finality of judgments and thus “serves vital public interests.” Ha llco Texas, Inc. v. McMulle n C ty
. , 221 S.W.3d 50, 58 (Tex. 2007). Res judicata is an affirmative defense. See Williams v. Houston Firemen’ s Relief & Ret. Fund , 121 S.W.3d 415, 437 n. 21 (Tex. App.

— Houston [1st Dist.] 2003, no pet.)

. To establish his right to judgment as a matter o f law on his affirmative defense of res judicata, David had to establish (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a subsequent action based on the same cla ims as were or could have b een raised in the first action. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010)

. C. Did David conclusively prove the existence of a prior final judgment on the merits? In his motion for summary judgment, David argue d that the trial court’s order overruling John’s objections and closing the estate “constituted a final judgment on
the merits, with preclusive effect ” of John’s claims against David for mismanagement of the estate. Applying the plain text of the Estates Code, we conclude that the order closing the estate was not a final judgment on the merits of John’s claims

. Our primary objective in construing the relevant Estates Code provisions is to give effect to the Legislature’s intent. See Galbraith Eng’g Consultants, Inc. v. Pochucha , 290 S.W.3d 863, 867 (Tex. 2009) ; see also City of Rockwall v. Hughes ,9

246 S.W. 3d 621, 625

– 26 (Tex. 2008) ( plain meaning of text is best expressio n of legislative intent unless different meaning is apparent from context or pla in meaning
leads to absurd or nonsensical results). Under the Estates Code, an executor may close an estate by filing a verified closing report or notice of closing of the estate: When all of the debts known to exist against the estate have been paid, or when they have been paid so far as the assets in the independent executor’s possession will permit, when there is no pending litigation, and when the independent executor has distributed to the distributees entitled to the estate all assets of the estate, if any, remaining after payment of debts, the independent executor may file with the court a closing report or a notice of closing of the estate. T EX
. E ST
. C ODE A NN
. § 405.004 ; see T EX
. E ST
. C ODE A NN
. § § 405.005, 405.006

. The Estates Code explains the eff ect of such a filing: The independent administration of an estate is considered closed 30 days after the date of the filing of a closing report or notice of closing estate unless an interested person files an objection with the court within that time. If an interested person files an objection within the 30

- day period, the independent administration of the estate is closed when the objection has been disposed of or the court signs an order closing the estate. T EX
. E ST
. C ODE A NN
. § 405.007(a)

. David filed a closing report verified by affidavit. See T EX
. E ST
. C ODE A NN
. §
405.005. John objected, but the trial court overruled that objection and ordered the estate closed. In his summary

- judgment motion, David argued that the overruling of John’s objections constituted an adjudication of John’s affirmative claims against10

David for estate mismanagement

. However, the Estates Code expressly provides to the contrary : T he closing of an independent administration by filing of a closing report or notice of closing estate terminates the power and authority of the independent executor, but does not relieve the independent executor from liability for any mismanagement of the estate or from liability for any false statements contained in the report or notice. T EX
. E ST
. C ODE A NN
. § 405.007(b) (emphasis added) . In overruling objections to a verified closing report, the trial court resolves only whether the report and accompanying affidavit meet the technical requirements of the statute, and not “whether the est ate has been properly administered.” In re Estate of Canales , 837 S.W.2d 662, 669 (Tex. App.

— San Antonio 1992, no pet.); see Burke v. Satterfield , 525 S.W.2d 950, 953 (Tex. 1975); In re Estate of Hanau , 806 S.W.2d 900, 903 (Tex. App.

— Corpus Christi 1991, writ denied). Indeed, should an executor desire to be discharged from liability for estate mismanagement, he may obtain a declaratory judgment to that effect : [T] he independent executor of the estate may file an action for declaratory judgment under Chapter 37, Civil Practice and Remedies Code, seeking to discharge the independent executor from any liability involving matters relating to the past administration of the estate that have been fully and fairly disclosed. T EX
. E ST
. C ODE A NN
. § 405.003(a). It is u ndisputed that David did not pursue discharge of liability under section 405.003(a).11

Alternatively, David argued that even if the estate closure did not adjudicate John’s claims, John should have raised his claims in the estate administration , and his failure to do so barred John’s subsequent suit. But accepting David’s assertion on this point would render section 405.007 meaningless, because the practical effect would be to foreclose any claims for mismanagement of an estate against an executor

a fter the estate has closed

— flatly contradicting section 405.007’s statement that such claims can survive the closure of the estate. See T EX
. E ST
. C ODE A NN
. § 405.007(b) ; see also Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue , 271 S.W.3d 238, 256 (Tex. 2008) (courts must not interpret statute in manner that renders any part of stat ute meaningless or superfluous)

. Moreover , in John’s previous appeal, the panel observed that “the closing of the estate does not foreclose John from potentially pursuing a b reach of fiduciary duty claim against David that alleges mismanagement of the estate.” Lawton , 2014 WL 3408699, at *5. Accordingly, we hold that David did not meet his summary

judgment burden to demonstrate the existence of a prior final judgment on the merits of John’s claims , an essential element of David’s res judicata affirmative defense, and therefore the trial court erred in granting summary judgment on res judicata grounds

. 1

1 David argues that we should affirm the summary judgment because John failed to address other grounds on which the trial court could have granted summary judgment: mootness and limitations. See Ellis v. Precision Engine Rebuilders, Inc. ,12

We sustain John’s first issue. Attorney’s Fees In his second issue, John contends that the trial court erred in awarding David attorney’s fees. Because we have concluded that the trial court erred in granting summary judgment in David’s favor, we also must reverse the trial court’s award of attorney’s fees to David

. See, e.g. , Nat’l Cas. Co. v. Charlie Hinds Paint & Body,
Inc. , 434 S.W.3d 254, 256 (Tex. App.

— Houston [1st Dist.] 2014, no pet.) (reversing award of attorney’s fees where underlying liability finding reversed ). We sustain John’s second issue

. Conclusion We revers e the trial court’s judgment and remand for further proceedings consistent with this opinion.

68 S.W.3d 894, 898 (Tex. App.

— Houston [1st Dist.] 2002, no pet.) (when summary - judgment order does not specify ground on which it was rendered, appealing party must negate all grounds on appeal ). Importantly, however, David only asserte d he was entitled to summary judgment on these grounds on John’s request for a declaratory judgment that he was entitled to a power of attorney accounting

. John did not fail to address these grounds

— he argued that his request for an accounting was merely a request for a discovery tool to aid in the adjudication of his claim for breach of fiduciary duty, and was therefore not moot nor subject to limitations

. We agree with John that the nature of this request was not a claim for relief so much as a discover y tool, and that n either limitations nor mootness foreclose John from discovering evidence regarding David’s actions pursuant to the power of attorney so far as that evidence is relevant and otherwise discoverable in connection with his breach of fiduciary duty claim.13 Rebeca Huddle Justice Panel consists of Justices Higley, Huddle, and Lloyd.