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NO. 12-22-00013-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE MATTER OF THE ESTATE

OF JOANN AUSTIN, DECEASED

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APPEAL FROM THE

COUNTY COURT

WOOD COUNTY, TEXAS

MEMORANDUM OPINION

Karen Dodd-Schorlemer (K.D.S.) appeals the trial court’s order granting Appellee 

Shirley Ivy’s application for determination of ownership and disposition of funds in favor of the

residual heirs.1 In two issues, K.D.S. argues that (1) the trial court erred in conducting a final 

evidentiary hearing without proper notice in violation of her due process rights, and (2) its 

determination of ownership and disposition of funds was improper. We reverse and remand.

BACKGROUND

On May 5, 2017, Joann Austin purchased Wood County National Bank Certificate of 

Deposit number 43651 (CD43651) with an initial deposit of $95,000. CD43651, which Austin 

purchased in her name, was payable on death to K.D.S. Several months later, Austin purchased 

Certificate of Deposit number 43755 (CD43755), which was payable on death in equal shares to 

K.D.S. and one of her sons, Appellee Scott Atteberry.

On July 25, 2018, when Austin was very ill, she executed a power of attorney in which 

she named her son, Bruce Atteberry, as her agent. On July 27, Bruce cashed in both CDs and 

deposited the $95,711.32 in funds from CD43651 into a newly-opened savings account (Account 

1 The Appellees are Paul Atteberry, Margaret Atteberry, Scott Atteberry, Troy Atteberry, and Shirley Ivy.
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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. 

Austin died on August 3, 2018. Sometime thereafter, Ivy produced Austin’s will to the 

trial court and was named executrix of Austin’s estate. 

Counsel for the estate filed an “inventory, appraisement, and list of claims,” which noted 

K.D.S.’s claim to the savings account, which contained funds yielded from the CDs that either 

partially or completely were payable 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 Account 604069252 would be assigned to K.D.S. and Scott as a 

nontestamentary asset, and (3) the disputed funds in Account 604069245 would remain 

undistributed. The trial court approved the interim family settlement agreement. 

On February 11, 2020, Ivy, as executrix, filed an “application for determination of 

ownership and disposition of funds” to distribute the $95,821.21 from the “Certificate of Deposit 

Dispute,” either to K.D.S. or as a residuary estate 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, Section 751.251, asserting self-dealing. K.D.S. also filed a motion to direct 

the executrix 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-death beneficiary of the funds from 

K.D.S. to Bruce. On August 19, 2021, Ivy filed a request for hearing on her application. On 

August 24, the County Court Administrator notified all legal counsel that the court would 

conduct an in-person hearing on the matter for September 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 September 

17 hearing’s being canceled. 

On October 1, counsel for Appellee Paul Atteberry3 sent the court administrator a letter, 

which 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.
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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 requires a hearing before the Court involves the right of ownership of 

a savings account owned by Jo Ann Austin 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 under the account 

ending in 9245 (the “9245 Account”). The funds that were held in the 9245 Account are now on 

deposit in the Estate of Jo Ann Austin under the control of Shirley Wheeler Ivy, Executor of the 

Estate of Jo Ann Austin, Deceased.

The essence of the dispute over the 9245 Account is that the residual heirs (excluding 

[K.D.S.)] want the funds from the 9245 Account distributed to all six children of Jo Ann Austin

who are the residual heirs, while [K.D.S.] wants the funds from the 9245 Account distributed to 

her alone by reason of a prior pay on death designation to her on a certificate of deposit that was 

cancelled by Bruce Atteberry, acting under a Power of Attorney for Jo Ann Austin.

The parties may agree to mediate, but if no settlement is reached, 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 court administrator emailed the parties to remind them that “an inperson hearing” was set for 1:00 p.m. on November 12.4

 The subject line of this email read, 

“Hearing set for Case 13358 - Austin set for November 12[.]” In response, on November 10,

K.D.S.’s counsel emailed the court administrator along with the other parties to request 

clarification about the nature of the hearing. Specifically, he inquired, “Is this a hearing on 

multiple motions/applications? Only specific motions/applications? Is this an informal trial?”

On the afternoon of November 10, the court administrator sent an email to all parties, in which 

she clarified that the November 12 hearing was to be a “status hearing on what are the next steps 

for this matter.” In her email, the court administrator noted, “This is not a trial.” That same day, 

at 5:18 p.m., Paul sent an email to the court administrator and all parties in which he stated 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 to his brief. We have reviewed the record and cannot 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 exceptions not material here, appellate court may 

not consider matters outside appellate record).
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he “would appear at the November 12, 2021, hearing ready to proceed, and that he would urge 

the Judge to make rulings on ‘dispositive matters’ at the hearing.”5

On the morning of the November 12th hearing, K.D.S. filed a written objection to the 

extent the trial court would be conducting anything other than a “status hearing” on that day. 

K.D.S.’s objection noted that (1) Paul’s October 1 letter merely was a “request” that a hearing be 

held on November 12 and did not state that a hearing 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 12, 

(3) conducting a hearing on any of the pending motions/pleadings/applications without being 

served with adequate written notice at least three days in advance would violate Texas Rule of 

Civil Procedure 21(b), and (4) without K.D.S.’s being given adequate notice of what is being 

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 the conduct of anything other than a status hearing. 

Nevertheless, the trial court conducted an extensive evidentiary hearing regarding the ownership 

of the disputed funds. During the hearing, the trial court heard the testimony of five witnesses. 

At the conclusion of the hearing, the trial court took the matter under advisement. 

On December 3, the trial court signed an order granting Paul’s application to distribute 

funds among all residual heirs.7 Paul filed a motion for judgment nunc pro tunc, in which 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 record 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 TEX. R. APP. P. 38.1(g) (in civil case, court will accept as true 

facts stated in appellant’s brief unless another party contradicts them; statement must be supported by record 

references). We further note that a reference to this email and its substance, i.e., that Paul “seemingly [would] be 

seeking to go forward on dispositive or evidentiary matters” at the hearing, appears in the Clerk’s Record in 

K.D.S.’s “Supplement to Objection to Hearing.”

6 K.D.S.’s counsel appeared at the hearing. 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 12, 2021 hearing.
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accord with Paul’s motion.8

 K.D.S. filed a motion for new trial, which was overruled. 

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

followed.

NOTICE OF HEARING

In her first issue, K.D.S. argues that the trial court abused its discretion in conducting the 

evidentiary hearing on Ivy’s application over her objection and in violation of her due process 

rights because she did not receive proper notice of that hearing. A trial court’s action in 

conducting a hearing on a motion without proper notice will not be disturbed on appeal absent an 

abuse of discretion. See Buruato v. Mercy Hosp. of Laredo, 2 S.W.3d 385, 287 (Tex. App.–San 

Antonio 1999, pet. denied). A trial court abuses its discretion by failing to adhere to guiding 

rules and principles. Nath v. Texas Children’s Hosp., 446 S.W.3d 355, 371 (Tex. 2014).

The Fourteenth Amendment of the United States Constitution protects against deprivation 

of life, liberty, or property by the State “without due process of law.” U.S. CONST. amend. XIV, 

§ 1. The Texas Constitution states that no citizen of this state shall be deprived of life, liberty, 

property, privileges or immunities, or in any manner disfranchised, except by the “due course of 

law of the land.” TEX. CONST. art. I, § 9. An elementary and fundamental requirement of due 

process in any proceeding which is to be accorded finality is notice reasonably calculated, under 

the circumstances, to apprise 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 minimum, due process requires notice and an opportunity to be heard 

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 (Tex. App.–Dallas 2009, 

pet. denied). Some Texas courts also have defined this “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 notice of any hearing thereon must be served 

upon all other parties not less than three days before the time specified for the court proceeding, 

8 K.D.S. has appealed the trial court’s order granting Paul’s application and the judgment nunc pro tunc 

together. We will refer to these two orders collectively as the trial court’s “Order Granting Application to Distribute 

Estate Funds to Residual Heirs.”
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unless otherwise provided by these rules or shortened by the court. See TEX. R. CIV. 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 interested to make their appearance. Retzlaff v. GoAmerica 

Communications Corp., 356 S.W.3d 689, 695 (Tex. App.–El Paso 2011, no pet.) (citing 

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 

865 (1950)). Because Rule 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, unless the notice of hearing is 

part of or attached to such an application, it must reference the application or motion which will 

be the subject of the hearing. See TEX. R. CIV. P. 21(b).

Discussion

In the instant case, Ivy filed a request for hearing on her application on August 19, 2021. 

On August 24, the court administrator notified all legal counsel that the court 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 court administrator a letter requesting that the 

cancelled September 17 hearing be reset for 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 that “the 

hearing” in the case 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 

inquired, “Is this a hearing on multiple motions/applications? Only specific 

motions/applications? Is this an informal trial?” On the afternoon of November 10, the court 

administrator sent an email to all parties, in which she clarified that the November 12 hearing 

was to be a “status hearing on what are the next steps for this matter.” In 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 confusion expressed 

in his email to the court coordinator is understandable. Nonetheless, we note that when a 

9 The Texas Rules of Civil Procedure apply to probate proceedings only to the extent they do not differ 

from the procedure established by the Probate Code (now Estates Code). See Wojcik v. Wesolick, 97 S.W.3d 335, 

338 (Tex. App.–Houston [14th Dist.] 2003, no pet.). The parties do not argue the existence of any provision of the 

Estates 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 case.
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previously-noticed hearing is reset, Rule 21’s three-day notice rule does 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 Ivy’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 fact––the court administrator responded to Ivy’s 

counsel’s request for clarification, stating that the hearing would be a “status hearing on what are 

the next steps for this matter” and emphasized, “This is not a trial.”

We conclude that the court administrator’s November 10 email conveyed “necessary 

information” for notice purposes, upon which K.D.S.’s counsel was entitled to rely. See TEX. R.

CIV. P. 21(b); Retzlaff, 356 S.W.3d at 695; cf., e.g., Hanks v. Rosser, 378 S.W.2d 31, 34 (Tex. 

1964) (court considered 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 to the extent any prior 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 November 10 email operated effectively 

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

we cannot conclude that the trial court’s decision to proceed with an evidentiary hearing over 

K.D.S.’s objection served 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 without sufficient notice of such 

a hearing in violation of K.D.S.’s due process rights.

10 See TEX. R. CIV. 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 Harm analysis is not required for reversal in a case where a party was deprived of property in a manner 

contrary 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 (1988); Tex. Integrated Conveyor Sys., Inc. v. Innovative 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 analysis were required, the outcome would not differ. 

The record feflects that K.D.S.’s counsel, in reliance on the court administrator’s assurance that the hearing was 

merely a “status hearing” and “not a trial[,]” attended the hearing without his client, who resides in Dallas. We 

conclude that K.D.S. was harmed when she was prevented from offering live testimony or otherwise participating in 

the hearing regarding the determination of how the disputed funds at issue would be distributed.

11 Having sustained K.D.S.’s first issue, we do not consider her second issue regarding the propriety of the 

trial court’s determination or ownership and disposition of funds at issue. See TEX. R. APP. P. 47.1.
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DISPOSITION

Having sustained K.D.S.’s first issue, we reverse the trial court’s Order Granting 

Application to Distribute Estate Funds to Residual Heirs and remand the cause to the trial court 

for further consideration consistent with this opinion.

GREG NEELEY

Justice

Opinion delivered February 28, 2023.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

FEBRUARY 28, 2023

NO. 12-22-00013-CV

IN THE MATTER OF THE ESTATE OF

JOANN AUSTIN, DECEASED,

Appeal 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. It is ORDERED, ADJUDGED and DECREED by this Court that the Order Granting 

Application to Distribute Estate Funds to Residual Heirs be reversed and the cause remanded to 

the trial court for further consideration in accordance with the opinion of this Court; and that 

this decision be certified to the court below for observance.

Greg Neeley, Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.