In the Matter of the Estate of Charles E. Killian, Deceased--Appeal from 336th District Court of Fannin County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00068-CV
______________________________
IN THE MATTER OF THE ESTATE OF
CHARLES E. KILLIAN, DECEASED
On Appeal from the 336th Judicial District Court
Fannin County, Texas
Trial Court No. 32437
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

Dennis Killian, one of the seven children of Charles E. Killian, appeals from one or both of two orders entered February 9, 2006, in his deceased father's pending estate. Those orders, titled "Order Approving Final Accounting" and "Order on Motion for Summary Judgment," essentially decreed that the estate be wrapped up by the independent executor (1) and also dismissed various challenges to the Executor's previously accomplished sale of approximately 150 acres of real property, in addition to making numerous other rulings not addressed by the current appeal. (2)

Procedurally, this case is a quagmire. It appears that the Executor sold, to one of the children, real property that was a principal asset of the estate, but only after obtaining explicit permission from the trial court. It appears further that Dennis and one sister immediately attempted to contest the sale on a number of grounds and that the net sale proceeds were accordingly frozen in place pending the outcome of that proceeding. An inventory and appraisal was approved by the trial court December 30, 1996. No appeal ensued from that approval.

Years later, the Executor filed a motion for summary judgment seeking to move the proceedings toward completion. As his sole response to the motion for summary judgment, Dennis filed an "answer." Dennis's answer to the motion for summary judgment was not particularly responsive to the issues pressed by the motion and provided no summary judgment evidence.

In a traditional motion for summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Once the movant establishes that it is entitled to summary judgment, however, the burden shifts to the nonmovant to show why summary judgment should not be granted. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). In reviewing a summary judgment, we accept all the nonmovant's proof as true and indulge every reasonable inference in the nonmovant's favor. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). All doubts about the existence of a genuine issue of a material fact must be resolved against the movant. Johnson County Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996).

Because the party moving for traditional summary judgment carries the burden to establish that no material fact issue exists and that it is entitled to judgment as a matter of law, "the nonmovant has no burden to respond to a summary judgment motion unless the movant conclusively establishes its cause of action or defense." M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). Because a motion for summary judgment must stand on its own merits, the nonmovant may argue on appeal that the movant's summary judgment proof is insufficient as a matter of law, even if the nonmovant filed no response to the motion. See id.

Thus, the fact that Dennis did not provide any summary judgment evidence in support of his answer is not immediately dispositive. But Dennis has a problem. On appeal, we may address alleged errors of the trial court only if they have been brought to our attention and have been adequately argued.

For an issue to be properly before this Court, the issue must be supported by argument and authorities and must contain appropriate citations to the record. See Tex. R. App. P. 38.1(h); Knoll v. Neblett, 966 S.W.2d 622, 639 (Tex. App.--Houston [14th Dist.] 1998, pet. denied). We are not required to search the record, with no guidance from appellant, to see if an issue of material fact was raised by the record. See Hall v. Stephenson, 919 S.W.2d 454, 466-67 (Tex. App.--Fort Worth 1996, writ denied).

Dennis's principal complaint on appeal seems to be that his share of the proceeds from the sale of the real property has not yet been distributed to him. In his prayer, Dennis asks that we order the Executor to divide and distribute the property, that the Executor be ordered to account for the estate, and if necessary to appoint an independent auditor to examine the distribution for the court and heirs. Dennis, however, does not attack any particular aspect of, or make reference to any alleged specific error in, the orders from which he appears to appeal.

We note that Dennis's complaint that the Executor has failed to disburse funds is a situation of his own making. The record reflects that the funds were available for distribution nearly ten years ago, with a much lower figure for attorneys' fees, and that the distribution was halted by pleadings filed by Dennis or his allied sister. Dennis has not pointed out how he believes the failure to disburse was due to any error by the trial court or the Executor. Dennis also seems to overlook the fact that the trial court's orders serve to move the estate closer to ultimate distribution.

Dennis's complaint about alleged mistakes in the inventory is one that should properly have been raised ten years ago by an appeal from the order approving the inventory and appraisal. It cannot be addressed now.

Dennis's complaints about property having been given to some heirs while others received nothing seems to be directed at the court-approved sale of the approximately 150 acres to one of the children. That determination was made long ago and was not appealed at the time. It cannot be attacked now.

Dennis's complaints about attorneys' fees are not based on excessiveness or lack of proof, but on his position that all of the litigation was unnecessary and thus those fees should not be charged against the estate. The record shows that Dennis and his sister instigated the litigation, and the record indicates that they were responsible for its continuation over a period of years. (3) Thus, after a successful defense of the estate from attack, attorneys' fees are properly recoverable by the Executor. See Tex. Prob. Code Ann. 243 (Vernon 2003).

No error has been shown.

We affirm the judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: March 15, 2007

Date Decided: April 5, 2007

1. The independent executor is Charles Edward Killian, not to be confused with Charles E. Killian, the decedent. To minimize confusion herein, we will refer to the independent executor as the Executor, to Dennis Killian as Dennis, and to Charles E. Killian as the Decedent.

2. The summary judgment incorporated into it the order referencing the final account. That summary judgment also determined that Angela Leigh Armstrong, Misty Janalle Bowers, and April Dawn Young had no standing as plaintiffs; that only Dennis Killian had standing among the plaintiffs; that Charles Edward Killian, as independent executor of the estate, had followed proper procedure in selling the approximately 150 acres; that the Executor did not purchase the real property in question, but a different child of the decedent did; that Mira Marie Killian, Joann Killian Young, and Billy Joe Killian should be dismissed from the pending lawsuit; that costs would be assessed against Dennis Killian, Mary Killian Kay, Angela Leigh Armstrong, Misty Janalle Bowers, and April Dawn Young; that the final accounting was approved; that all pending motions by Mary Killian Kay were dismissed; that pending petitions related to the sale of the approximately 150 acres, that is, to cancel the deed and to impress a constructive trust on the proceeds, were denied; and that the pending petition to remove the Executor was denied. This appeal appears to complain only regarding the sale of the 150 acres and the lack of a distribution of the estate.

3. Dennis's allied sister is not a party to the appeal. It appears that she went through four attorneys, several of whom were dismissed shortly before some contested hearing (thus resulting in lengthy continuances), and finally appeared pro se. Dennis was evidently pro se for the whole proceeding until this appeal was filed.