PATRICIA ANN PARRISH AND RENA DAVIS v. MELBA LAVERNE RUTHERFORD, ADMINISTRATRIX OF THE ESTATE OF CLAUDE J. RUTHERFORD, DECEASED--Appeal from County Court at Law No 2 of Montgomery County

NUMBER 13-01-724-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI EDINBURG

PATRICIA ANN PARRISH AND RENA DAVIS, Appellants,

v.

MELBA LAVERNE RUTHERFORD, ADMINISTRATRIX

OF THE ESTATE OF CLAUDE J. RUTHERFORD,

DECEASED, Appellee.

On appeal from the County Court at Law No. 2

of Montgomery County, Texas.

O P I N I O N

Before Justices Hinojosa, Rodriguez, and Amidei //

Opinion by Justice Amidei

Patricia Ann Parrish and Rena Davis, appellants, appeal from an order declaring heirship after a bench trial. Appellants claim in seven issues that: (1) the trial court erred in finding that Kristin Anglin was a daughter of Claude J. Rutherford, deceased, notwithstanding Anglin s statement she did not want to be involved with the proceedings; (2) there was no evidence or insufficient evidence to support such finding; (3) the trial court erred in denying appellants motion for default judgment; and (4) the trial court erred in allowing the administratrix to act as an advocate for Anglin and allowing the administratrix corresponding attorney s fees. We affirm.

Standard of Review

The appellant s brief must contain the following: a succinct, clear, and accurate statement of the arguments made in the body of the brief with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(g)(h).

No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of probably caused the rendition of an improper judgment, or probably prevented the appellant from properly presenting the case to the court of appeals. Tex. R. App. P. 44.1(a)(1),(2).

Where a defendant has filed an answer but fails to appear for trial, a judgment by default is improper. Bibby v. Preston, 555 S.W.2d 898, 901 (Tex. Civ. App. Tyler 1977, no writ); see Tex. R. Civ. P. 239.

In reviewing no evidence points, we must review the evidence in a light which tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992).

Analysis

Appellants assert in their first issue that the trial court erred in failing to grant their motion for default judgment as to Kristin Anglin. Appellants incorrectly state that Anglin filed no answer. In the instant case, the trial court had properly appointed an attorney ad litem for the decedent s unknown heirs pursuant to the request in appellee s application for community administration, as it indicated service was to be made by publication. Tex. R. Civ. P. 244; Tex. Prob. Code Ann. 34A, 49(b), 50(b), 53(b) (Vernon 2003); Cahill v. Lydia, 826 S.W.2d 932, 933 (Tex. 1992) (trial court must appoint attorney ad litem to represent defendants served with citation by publication who fail to file an answer or appear before the court). The attorney ad litem appointed to represent the unknown heirs of the deceased, whose names and/or whereabouts were alleged as unknown, filed an answer on Anglin s behalf denying appellant Parrish s allegation that appellants Parrish and Davis were the deceased s only children. The trial court does not have authority to render a default judgment if an answer has been filed. Tex. R. Civ. P. 239.

Appellants cite no authority that Anglin s presence at trial was required to avoid a default judgment, or that it was error for the trial court to deny a motion for default judgment in the same or similar situation. See Tex. R. App. P. 38.1(h). Moreover, it appears that Anglin did appear at the time the case was set for trial, but did not appear the second day or the next day the case was reset.

Appellants further claim that Anglin requested that she be dismissed or withdrawn from the case, and also allege that Anglin had no justiciable interest in the matter. However, the record does not indicate Anglin withdrew or was dismissed from the case. Under the probate code, a child of the deceased who may be living, whose name or whereabouts are unknown, has a justiciable interest in a declaration of heirship proceedings, even if disputed. Tex. Prob. Code Ann. 53(b) (Vernon 2003). Anglin s justiciable interest in the case was evidenced by appellee s applications for community administration and for letters of administration.

The case cited by appellants, Seyffert v. Briggs, 727 S.W.2d 624 (Tex. App. Texarkana 1987, writ ref d n.r.e.), is not on point. Seyffert involved a pleading defect which the trial court wrongly refused to correct. Id. at 626. The case does not address the issue of whether the trial court wrongly refused a default judgment because the defendant had no justiciable interest. See id. at 626-27.

Appellants first issue is overruled.

Appellants second and third issues assert that the trial court erred in allowing the attorney ad litem to testify that, in his opinion, Anglin was a daughter of the deceased, and in allowing the attorney ad litem to represent Anglin. Contrary to the appellate rules, the appellants do not clearly develop an argument or cite any authority to support these issues. See Tex. R. App. P. 38.1(g),(h).

Moreover, we would overrule these issues on the merits. The record shows that the attorney ad litem withdrew as Anglin s attorney ad litem six months before trial. Further, Melba Rutherford, the widow of the deceased, and Suzie Mayo Smith, Anglin s mother, both testified that Anglin was a daughter of the deceased. We conclude that, even excluding the ad litem s testimony, there was sufficient evidence before the trial court that Anglin was a daughter of the deceased.

Appellants second and third issues are overruled.

Appellants issues four and five contend the trial court erred in allowing the administratrix to act as an advocate for Anglin and allowing the administratrix corresponding attorney s fees. Appellants made a request for a partial reporter s record by requesting the record in two hearings, but failed to request a record regarding the hearing on attorney s fees held October 3, 2001. Tex. R. App. P. 34.6(c)(1). Further, appellants notice of appeal failed to specify they were appealing the October 3, 2001 order awarding attorney s fees. Tex. R. App. P. 25.1(d)(2). This issue is not preserved for appeal. Tex. R. App. P. 25.1, 33.1.

Even assuming appellants perfected an appeal regarding attorney s fees, the administratrix was entitled to recover attorney s fees incurred in the management of the estate. Tex. Prob. Code Ann. 242 (Vernon 2003). Appellants opinion that the administratrix s use of an attorney was wasteful is unsupported by the record or any authority. Tex. R. App. P. 38.1(g),(h). Further, appellants waived any objection or challenge to standing because they failed to make an exception, objection, motion or plea in abatement prior to the issue being joined on the merits. Fisher v. Williams, 160 Tex. 342, 331 S.W.2d 210, 213-14 (1960); see Tex. R. App. P. 33.1(a)(1)(A)(B).

Moreover, appellants incorrectly state that the administratrix is not a party in interest in the heirship hearing and appeal. The only authority cited by appellants, Muse, Currie & Cohen v. Drake, 535 S.W.2d 343 (Tex. 1976), does not apply because it involved an administratrix in a will contest who lacked standing because she was not an interested party, whereas, the instant case is a suit for determination of heirship by a personal representative who has the statutory duty to determine the existence of any potential heirs and their respective interests. See id. at 343-44.

Provisions of the Texas Probate Code which define whether a person is an heir, or an interested person who has standing, are as follows:

Heirs denote those persons, including the surviving spouse, who are entitled under the statutes of descent and distribution to the estate of a decedent who dies intestate. Tex. Prob. Code Ann. 3(o). (Vernon 2003).

Interested persons or persons interested means heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered; and anyone interested in the welfare of a minor or incompetent ward. Tex. Prob. Code Ann. 3(r). (Vernon 2003).

A proceeding to declare heirship may be instituted and maintained by the personal representative of the estate . Tex. Prob. Code Ann. 49. (Vernon 2003).

Distribution of the net assets of an estate to the heirs is one of the primary duties of a personal representative. Bailey v. Cherokee Cty. Appraisal Dist., 862 S.W.2d 581, 584 (Tex. 1993).

By awarding attorney s fees, the trial court did not make an error of law which probably caused the rendition of an improper judgment, or probably prevented the appellants from properly presenting the case to the court of appeals. Tex. R. App. P. 44.1(a)(1)(2).

Appellants fourth and fifth issues are overruled.

Appellants issues six and seven argue there was no evidence or insufficient evidence that Anglin was a daughter of the deceased. Appellants contend that the testimony of Suzie Mayo Smith, Anglin s mother, that the deceased was Anglin s father amounted to no more than a scintilla of evidence when compared with the remaining testimony.

In reviewing no evidence points, we must review the evidence in a light which tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Weirich, 833 S.W.2d at 945. As noted previously, Melba Rutherford also testified that Anglin was one of the deceased s daughters. The testimony of Melba and Suzie support the trial court s finding that Anglin is a daughter of the deceased, and we disregard appellants testimony and evidence to the contrary. The trial court s finding was supported by more than a scintilla of evidence. See id.

Appellants sixth and seventh issues are overruled.

The judgment of the trial court is affirmed.

MAURICE AMIDEI,

Justice

Opinion delivered and filed

this 22nd Day of January, 2004.