1 

## NO. 12

- 22

- 00013

- CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

IN THE MATTER OF THE ESTATE
OF JOANN AUSTIN, DECEASED §
§
§ APPEAL FROM THE

COUNTY COURT

WOOD COUNTY, TEXAS

MEMORANDUM OPINION
Karen Dodd

- Schorlemer ( K.D.S. ) appeals the trial court’s or der granting Appellee Shirley Ivy’s application for determination of ownership and disposition of funds in favor of the
residual heirs. 1 In tw o issues, K.D.S. argues that (1) the trial court erred in conducting a final evidentiary hearing without proper n otice in violation of her due proc ess rights , and (2) it s determination o f ownership and disposition of funds was improper. We reverse and rem and

.

B ACKGROUND On May 5, 2017, Joann Austin purchased Wood County National Bank Certificate of Deposit number 43651 (CD43651) with an initial de posit of $95,000. CD43651, which Austin purchased in her name, was payable on death to K.D.S. Several month s later, Austin purchased Certificate of Deposit number 43755 (CD43755), which was payable on death in equal shar es to
K.D.S. and one of her sons, Appellee Scott Atteberry. On July 25, 2018, when Austin was ver y ill, she executed a power of attorney in wh ich
she nam ed her son, Bruce Atteberry, as her agent. On July 27, Bruce cashed in both CDs and deposited the $95 ,711.32 in f unds from CD43651 into a newly

- opened savings account (Account

1 The Appell ees are Paul Atteberry, Margaret Atteberry, Scott Atteberry , Troy Atteberry, and Shirley Ivy

.2 604069245) in Austin’s name and payable on death to himself

. 2 Bruce deposited the funds from CD43755 into a separate savings account (Account 60406925 ) in Austin’s name and payable on death to K.D.S. and Scott.
Au stin died on August 3, 2018. S ometime thereafter , Ivy produced Austin’s will to the
trial court and was na med executrix of Austin’s estate.
C ounsel for the estate filed an “inventory, appraisement, and list of claims , ” which not ed
K.D.S. ’s claim to the savings account , which contained funds yielded from the CDs that either partially or completely were payab le on death to K.D.S. The residual heirs to the estate reached an interim family settlement agreement by which ( 1) uncontested estate assets would be
distributed , (2) funds from A ccount 604069252 would be assigned to K.D.S. and Scott as a nontestamentary asset , and (3) the disputed funds in Account 604069245 would remain

un distributed

. The trial court approved the interim family settlement agreement. On February 11, 2020 , Ivy, as executrix, filed an “application for determination of ownership and dispos ition of funds” to distribute the $95,821.21 from the “Certificate of Deposit Dispute,” either to K.D.S. or as a residuary esta t e asset to be distributed evenly to the residual
heirs. K.D.S. filed an application for review of Bruce’s conduct as agent for Austin, pursuant to
Texas Estates Code , S ection 751.251, asserting self

- dealing. K.D.S. also filed a motion to d irect
the exec u trix to distribute the disputed funds to her or, alternatively, to place the funds in the registry of the court. In her motion, K.D.S. argued that Austin’s power of attorney did not provide Bruce with authority to change the payable

- on
- deat h beneficiary of the funds from
K.D.S. to Bruce. On August 1 9 , 202 1 , Ivy filed a request for hearing on her application. On August 24, the Co u n t y Court Administrator notified all legal counsel that the court would
conduct an in

- person hearing on the matt er for Septemb er 17 , at 1:00 p.m. On September 15,
K.D.S. retained new counsel, who filed motions with the court, which resulted in the Septem ber
17 hearing’s being canceled.
On October 1 , counsel for Appellee Paul Atteberry 3 se nt the court administrator a letter , whi ch reads as follows:

2 Bruce later disclaimed his payable on death right to these funds, which became part of the residuary of Austin’ s estate.

3 On February 7, 2023, Paul’s counsel filed a Suggestion of Death, which states that Paul died on February 1, 2023.3 I write to you regarding resetting the hearing that was set for September 17, 2021 [,] and

was removed from the docket after [ K.D.S. ] filed (1) an Application for Review of Agent Conduct under section 751.251 of the Texas Estates Code [ ] and (2) a Motion to Direct Executrix to Distribute Funds to [ K.D.S. ] , and had a citation issued in regard to these pleadings.
The Dispute which require s a hearing before the Court involves the right of ownership of

a savings account owned by Jo Ann Aust in at the date of her death. The savings account in the amount of $95,711.32 was held at Wood County National Bank in Quitman un der the account ending in 9245 (the “9245 Account”). The funds that were held in the 9245 Account ar e now on dep osit in the Es tate of Jo Ann Austin under the control of Shirley Wheeler Ivy, Executor of the Estate of Jo Ann Austin, Deceased.

The essence o f the dispute over the 92 45 Account is that the residual heirs (excluding [ K.D.S. ) ] want the funds from the 9245 Account distri buted to all six children of Jo Ann Austin who ar e the residual heirs, while [ K.D.S. ] wants the funds from the 9245 Account distr ibuted to her alone by re ason of a prior pay on death designation to her on a certificate of deposit that was

can celled by Bruc e Atteberry, acting under a Power of Attorney for Jo Ann Austin.
The parties may agree to mediate, but if no settlement is reach ed, we may need to [have] a hearing. I request that the Court set this dispute for a half day hearing on Friday, November 12, 2021 [,] at 1:00 p.m.
Please advise me as soon as possible concerning this request for hearing. Thank you.

On October 28 , Paul filed an application for an order to distribute the funds at issue to the
residual heirs.
On November 4 , the co urt administra tor emailed the parties to remind them that “an i n
person hearing” was set for 1:00 p.m. on November 12. 4 The subject line of th is email read,

“ Hearing set for Case 13358

- Austin set for November 12 [.]” In response, on November 10,
K.D.S. ’ s counsel emai led the court administrator along with the other parties to request clarification about the nature of the hearing. Specifically, he inqu ired, “ Is this a hearing on multiple motions/applications? Only specific motions/applications? Is this an informal tr ial?” On the afternoon of November 10, the court administrator sent an email to all parties , in which
she clarified that the Nov ember 12 hearing was to be a “status hearing on what are the next steps
for this matter.” In her email, t he cour t administrato r noted, “This is not a trial.” That same day, at 5:18 p.m. , P aul sent an email to the court administrator and all parties in wh ich he stat ed that

4 In his brief, Paul states that on October 4, 2021, the court administrator emailed the parties that the hearing reset requested by Ivy was set for hearing on November 12, 2021, at 1:00 p.m. For this proposition, Paul cites to the appendix t o his brief. We have reviewed th e record and ca nnot locate this email. Therefore, because this email is outside the appellate record, we cannot consider it. See Hogg v. Lynch, Chappell & Alsup, P.C. , 480 S.W.3d 767, 773 (Tex. App.

– El Paso 2015, no pet.) (with limited except ions not material here, app ellate court may not consider matters outside appellate record).4 he “would appear at the November 12, 2021 , hearing ready to proceed, and that he would urge
th e Judge to mak e rulings on ‘dispositive matters’ at the hearing.” 5 On the morning of the November 12th hearing, K.D.S. filed a written objecti on to the
extent the trial court would be conducting anything other than a “status hearing” on that day.
K.D.S. ’ s objection no ted that (1) Paul’s October 1 letter merely was a “request” that a hearing be
held on November 12 and di d not state that a hearin g had been set for that date , (2) his letter did not specify which of the motions/pleadings/applications on file , several of which involved the right of ownership of the funds in question , he was seeking to have heard on November 1 2 , (3) conducting a heari ng on any of the pending motions/pleadings/applications without being served with adequate written notice at leas t three days in advance would violate Texas R ule of
C ivil P rocedure 21(b) , and (4) w ithout K.D.S. ’s being given adequate notice of what is bein g heard at the hearing, the hearing would be tantamount to a prohibited “trial by ambush.” At the hearing, the trial court indicated that it planned to “allow some testimony

. ” 6 In

response, K.D.S. ’s counsel objected to th e conduct of anything other than a status hearing. Nevertheless, the trial court conducted a n extensive evidentiary hearing regarding the owners hip
of the d isputed funds. During the hearing, the trial court heard the testimony of five witnesses.
At the conclusion of the hearing, the t rial court took the matter under advisement.
On December 3 , the trial court signed an order granting Paul’s app lication to distribute funds among all residual heirs. 7 Paul filed a motion for judgment nunc pro tunc, in wh ich he argued that the December 3 order should have stated that the relief granted was pursuant to Ivy’s application rather than his. On April 12 , 2022, the trial court signed a judgment nunc pro tunc in

5 As K.D.S. notes in her reply, while a copy of this email is attached as an Appendix to Paul’s brief, it does not appear to be part of the re cord on appeal. See Hogg , 480 S.W.3d at 773

. However, we note that the quoted language is taken directly from K.D.S. ’s brief

. See T EX

. R. A PP

. P. 38.1(g) ( in civil case, court will accept as true facts stated in appellant’s brief unless another party co ntra d i cts them ; state ment must be supported by record references). We further note that a reference to this ema il and its substance , i.e., that Paul “seemingly [would] be seeking to go forward on dispositive or evidentiary matters” at the hearing , appear s in the Clerk’s Recor d in K.D.S. ’s “ Supplement to Objection to Hearing.”

6 K.D.S.’s counsel appeared at the hea ring. K.D.S. was not present.

7 The order sets forth that it was based on the consideration of evidence and testimony given at the November 1 2 , 2021 hearing.5 accord with Paul’s motion. 8 K.D.S. filed a motion for new trial, which was overrule d

. Thereafter , the trial court made written findings of fact and conclusions of law. This appeal
followed.

N O TICE OF H EAR ING In her first issue, K.D.S. argues that the trial court abused its discretion in conducting the evidentiary hearing on Ivy’s app lication over her objection and in violation of her due process rights because she did not receive proper notice of th at hear ing. A trial court ’ s action i n conducting a hearing on a motion without proper notice will not be disturbed on appeal absent an
ab use of discretion. See Buruato v. Mercy Hosp. of Laredo , 2 S.W.3d 385, 287 (Tex. App.

– San Antonio 1999, pet. den ied). A trial court abuses its di scretion by failing to a dhere to guiding
rule s and principles. Nath v. Texas Children ’ s Hosp. , 446 S.W.3d 35 5, 371 (Tex. 2014).
The Fo urteenth Amendment of the Unit ed States Constitution protects against deprivation
of li fe, liberty, or property by the State “without due process of law.” U.S. C ONST

. amend. XIV, § 1. The Texas Constitution states that no citize n of this state shall be d eprived of life, liberty,

prop erty, privileges or immunities, or in any manner disfranc hised, except by the “due course of
law of the land.” T EX

. C ONST

. art. I, § 9. An elementary and fundamental requirement of due process in an y proceeding which is to b e accorded finality is notice reasonably calculated, under the circumstances, to appris e interested parties of the pendency of the action and afford them an opportunity to present their objections. Campbell v. Stucki , 220 S.W.3d 562, 570 (Tex. App.

– Tyler 2007, no pet.). At a m inimum, due process requires notice and an opportunity to be hea rd at a meaningful time and in a meaningful manner. See id. ; see also Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc

. , 300 S.W.3d 348, 363 (Te x. App.

– Dallas 2009,

pe t. denied)

. Some Texas courts also have defined th is “ minimum ” as requiring the presence of the “rudiments of fair play.” Campbell , 220 S.W.3d at 570. An application to the court for an order and n otice of any hearing thereon must be served upon all othe r parties not less than three days before the time specified for the court proceeding,

8 K.D.S. has appealed the tr ial court’s order granting Paul’s application and the judgment nun c pro tunc together. We will refer to these two order s collectively as the trial court’s “ Order Granting Application to Distribute E state Fund s to Residual Heirs. ”6 unless otherwise provided by these rules or shortened by the court. See T EX

. R. C IV

. P. 21(b). 9
The notice must be of such nature as reasonably to convey the required information , and it must
afford a reasonable time for those inte rested to make their appearance. Retzlaff v. GoAmerica Communications Corp. , 356 S.W.3d 689, 695 (Tex. App.

– El Paso 2011, no pet.) (citing
Mul lane v. Cent. Hanover Bank & Trust Co. , 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950)). Because Ru le 21a’s notice of hearing requirement is set forth as being part and parcel to an application to the court for an order, it is logical that, u nless the notice of hearin g is part of or attached to such an application, it must refere nce the application or m otion which will be the subject of the hearing. See T EX

. R. C IV

. P. 21(b).
Discussion In the instant case, Ivy filed a request for hearing on her application on August 1 9 , 2021.
On August 24, the court administrator notified all legal counsel that the c ourt would conduct an
in

- person hearing on Ivy’s application on September 17, 2021, at 1:00 p.m. But that hearing was canceled.
On October 1 , 2021, Paul sent the cou rt administrato r a letter requesting that the
cancelled September 17 hearing be reset f or a half

- day hearing on Friday, November 12, 2021, at 1:00 p.m. On November 4, the court administrator emailed the parties to remind them tha t “the hearing” in the cas e was set for 1 :00 p.m. on November 12. In response, on November 10,
K.D.S. ’s counsel emailed the court coordinator along with the other parties to request clarification about the nature of the hearing referenced in the reminder email . Specifically, he
i nquired, “Is this a hearing on multiple motions/applications? Only specific
motions/a p plications? Is this an informal trial?” On the afternoon of November 10, the court administrator sent an email to all parties, in which she c larified that the November 12 hearing was to be a “status hearing on what are the next steps for this matter.” I n her email, the court administrator noted, “This is not a trial.”
Based on the information in the record before us , K.D.S. ’s counsel’s confusi on expressed
in his email to the court coordinator is understandable. Nonetheless, we note that when a

9 The Texas Rules of Civi l Procedure apply to probate proceedings only to the extent the y d o not differ fr o m the procedure established by the Probate Code (now Estates Code). See Wojcik v. Wesolick , 97 S.W.3d 335, 338 (Tex. App.

– Hous ton [14th Dist.] 2003 , no pet.). The parties d o not argue the existence of any provision of the Estate s Code , nor is this Court aware of any such provision, which negates the application of Texas Code of Civil Procedure 21 to the hearing in the instant ca s e.7 previou sl y
- noticed hearing is reset, Rule 21’s three

- day notice rule d oes not apply. See, e.g. , Magnuson v. Mullen , 65 S.W.3d 815, 824 (Tex. App.

– Fort Worth 2002, pet. denied). In a
similar vein , an argument could be made that Paul’s request that the hearing on I vy’s application be reset for a specific date and time combined with the court administrator’s reminder email that

a hearing was scheduled for that same date and time, amounted to ample notice of the subject matter of the hearing , but for one inescapable f act

–– the court administrator responded to Ivy’s counsel’s request for clarification , stating that the hearing would be a “status hearing on wha t are the next steps for this matter” and emphasized, “This is not a trial.”
We conclude that the court administr ator’s November 10 email conveyed “necessary information” for notice purposes , upon which K.D.S. ’s counsel was entitled to rely. See T EX

. R.
C IV

. P . 21(b); Retzlaff , 3 56 S.W.3d at 695 ; cf. , e.g. , Hanks v. Rosser , 378 S.W.2d 31, 34 (Tex. 1964) ( co urt consi dered appellant ’s reliance on erroneous information conveyed by clerk in his official capacity in holding that appellant failure to file answer neither was intentional nor result
of conscious indifference under Craddock standard )

. And t o the exte nt any pr ior notice of hearing may have served to relate to the parties that the November 12 hearing would concern a specific application or motion , the court administrator’s No vember 10 email operated effectively

to amend any such notice . In light of the court ad ministrator’s statement in her official capacity ,

we cannot conclude that the trial court’s decision to proceed with an evidentiary hearing ove r K.D.S. ’s objection serv ed to uphold the “rudiments of fair play

. ” See Campbell , 220 S.W.3d at
570

. Therefore, we hold that the trial court abused its discretion when it , over K.D.S. ’s objection, conducted an evidentiary hearing on Ivy’s application wit hout sufficient notice of such a hearing in violation of K.D.S.’s due process rights

. 10 See T EX

. R. C IV

. P . 21 (b) ; Retzlaff , 356
S.W.3d at 695 ; Campbell , 220 S.W.3d at 570

. K.D.S. ’s first issue is sustained. 11

10 H arm analysis is not required for reversa l in a case where a party was deprived of property in a manner

con trary to the most basic tenets of due process

. See Peralta v. Heights Med. Ctr., Inc. , 485 U.S. 80, 86 , 108 S. Ct. 896, 900, 99 L.Ed.2d 75 (1 9 88); Tex

. Integrated Conveyor Sys., Inc. v. Inn ovative Conveyor Concepts, Inc. , 300 S.W.3d 348, 364

– 65 (Tex. App.

– Dallas 2009, pet. denied) (trial court signed motion granting summary judgment prior to scheduled date of submission)

. In the event a harm a n alysis were required , the outcome would not differ. The record feflects that K.D.S. ’ s counsel, in reliance on th e court administrator ’ s assurance that the hearing w as
me rely a “ status hearing ” and “ not a trial[,] ” at tended the hearing without his client, who resides in Dalla s. We conclude that K.D.S. was harmed when she was prevented from offering live testimony or other wise participating in the hearing regarding the determination of how the disputed funds at issue would be distributed.

11 Havin g sustain e d K.D.S. ’s first iss ue, we do not consider her secon d issue regarding the propriety of the trial court’s determin ation or ownership and disposition of funds at issue. See T EX

. R. A PP

. P. 47.1.8 D ISPOSITION Having sustained K.D.S. ’s first issue, we reverse the trial court’s Order Granting Application to Distribute Estate Funds to Residual Heirs an d remand the cause to the trial court for further consideration consistent with this opinion

.

G REG N EELEY Justice
Opinion delivered February 28 , 2023. Panel consisted o f Worthen, C.J., Hoyle, J., and Neeley, J.9 

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

FEBRUARY 2 8 , 2023

NO. 12

- 22

- 00013

- CV

IN THE MATTER OF THE ESTATE OF JOA NN AUSTIN, DECEASED ,

App eal from the County Court
of Wood County, Texas (Tr.Ct.No. 13

- 358 )

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this Court that the trial court ’ s Order Granting Application to Distribute Estate Funds to Residual Heirs resulted from an abuse of its
discretion

. I t is ORDERED, ADJUDGED and DECREED by this Court that the Order Granting Application to Distribute Estate Funds to Residual Heirs be revers ed and the cause remanded to the trial court fo r further consideration in accordance with the opinion of this Cou rt; and that
this decision be certified to the court below for observance. Greg Neeley , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., a nd Neeley, J.