IN RE ESTATE OF MERLE M. ROWAN

AFFIRM and Opinion Filed June 7, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00681-CV
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IN RE ESTATE OF MERLE M. ROWAN
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On Appeal from the Probate Court No. 1
Tarrant County, Texas
Trial Court Cause No. 88-1838-1
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MEMORANDUM OPINION
Before Justices O'Neill, Lang-Miers, and Mazzant
Opinion By Justice O'Neill
        In this consolidated interlocutory appeal and writ of mandamus, appellant Elton M. Hyder, III complains of an order requiring him, as executor of the estate of Merle M. Rowan, to file a final accounting pursuant to the provisions of the Texas Probate Code. The executor asserts that (1) the probate court lacked subject-matter jurisdiction, and (2) if the probate court had subject-matter jurisdiction, the probate court erred in refusing to submit the matter to arbitration under the Federal Arbitration Act and the Texas General Arbitration Act. For the following reasons, we affirm the probate court's order and deny the petition for writ of mandamus.
        Appellant Elton M. Hyder, III is the successor independent executor of the will and estate of Merle M. Rowan. In 1995, after the will was admitted to probate, and the initial executor died, letters testamentary were issued to the executor to allow him to administer the estate. Disputes between the executor, who was the testatrix's grandson, and other family members, including appellees Martha R. Hyder, Brent R. Hyder, and Whitney Hyder More arose. These disputes concerned both the estate and other matters. The disputes were settled and the parties entered into a settlement agreement. In the settlement agreement, the parties agreed to resolve any disputes that might arise under the agreement by arbitration. Subsequently, the probate court entered an order dismissing all “claims” between the parties with prejudice. The dismissal order also severed out a third party claim between the executor and a third party defendant. The dismissal order states that it was intended to be final and appealable.
        Over a year later, appellees filed the instant request for a final accounting under section 149A of the probate code. Under section 149A, any person interested in an estate may demand an accounting from the independent executor. Tex. Prob. Code Ann. § 149A(a) (Vernon 2003). The independent executor shall thereupon furnish to the person or persons making the demand an exhibit in writing, sworn and subscribed by the independent executor, setting forth in detail: (1) the property belonging to the estate which has come into his hands as executor, (2) the disposition that has been made of such property, (3) the debts that have been paid, (4) the debts and expenses, if any, still owing by the estate, (5) the property of the estate if any still remaining in his hands, (6) such other facts as may be necessary to a full and definite understanding of the exact condition of the estate, and (7) such facts, if any, that show why the administration should not be closed and the estate distributed. Id.
        The executor responded to the request asserting (1) the probate court lacked subject-matter jurisdiction to order an accounting because the prior dismissal order was a final judgment and the court had long since lost plenary power, and (2) the issue of whether appellees were entitled to an accounting was a “dispute” that was required to be submitted to binding arbitration. The probate court disagreed with the executor and ordered the executor to prepare a final accounting in accordance with the probate code. The executor filed this interlocutory appeal and petition for writ of mandamus complaining of the probate court's order.
        The executor invokes our jurisdiction asserting he is seeking review of an order denying a motion to compel arbitration. Under the Texas General Arbitration Act, an interlocutory appeal may be taken from a trial court's denial of a motion to compel arbitration. Tex. Civ. Prac. & Rem. Code Ann. § 171.098(a)(1) (Vernon 2005). However, when a motion to compel arbitration is denied under the Federal Arbitration Act, mandamus is the appropriate remedy. See D. Wilson Const. Co., 196 S.W.3d 774, 779 (Tex. 2006). When a party seeks to compel arbitration under both the Federal and Texas Acts, to obtain review under both acts, he must pursue parallel proceedings, an interlocutory appeal of the order denying arbitration under the Texas Act and a mandamus from the denial under the Federal Act. See id. at 780 & n.4.
        As a preliminary matter, we consider whether this Court has before us an order denying a motion to compel arbitration. Here, appellees requested an accounting. The executor responded that appellees' right to an accounting, if any, was an issue that was required to be submitted to arbitration pursuant to the Federal and Texas Acts. The probate court did not expressly rule on the executor's request for arbitration, but entered an order requiring him to prepare an accounting. The probate court's order compelling an accounting implicitly denied the executor's request to arbitrate. Consequently, we may review the probate court's refusal to order arbitration. Cf. Thomas v. Long, 207 S.W.3d 334, 339-40 (Tex. 2006) (appellate court has jurisdiction over implicit denial of issue otherwise subject to interlocutory review).
 
Jurisdiction
 
        We will first consider the executor's challenge to the probate court's subject-matter jurisdiction. In determining the interlocutory appeal, we can consider whether the probate court had subject-matter jurisdiction over the case in the first instance. See Mills v. Warner Lambert Co., 157 S.W.3d 424, 428 (Tex. 2005) (considering trial court's subject matter jurisdiction in interlocutory appeal from class-certification order). The executor does not dispute that the probate court generally has the power to order an accounting. Instead, he relies entirely upon his contention that the probate court's plenary power expired thirty days after it signed the “final” order dismissing the claims between the parties. He asserts this judgment was “final” for purposes of appeal because it “says so” and because it disposed of all claims between the parties.
        This is a probate case. In such a case, unlike most cases, there can be multiple final judgments for purposes of appeal. See De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006). Specifically, a probate judgment or order can finally dispose of certain issues or controverted questions regarding a particular part of the proceeding even if it does not fully and finally dispose of the entire probate proceeding. Huston v. Fed. Deposit Ins. Corp., 800 S.W.2d 845, 848 (Tex. 1990). Thus, determining that the dismissal order was final means only that it finally disposed of the claims between the parties. However, the question before us is whether the probate court nevertheless had jurisdiction to order an accounting.
        A probate court has jurisdiction over an estate until it is closed. See Interfirst Bank-Houston v. Quintana Petroleum Corp., 699 S.W.2d 864, 874 (Tex. App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.). An independent administration of an estate is considered closed when the debts have been paid, the property distributed, and there is no more need for further administration. In re Estate of Hanau, 806 S.W.2d 900, (Tex. App.-Corpus Christi 1991, writ denied); Interfirst Bank-Houston, 699 S.W.2d at 874. An estate can be formally closed either by court order or by the executor filing an affidavit in compliance with section 151 of the probate code. Such an affidavit must show that all the debts have been paid and the assets distributed. See Tex. Prob. Code Ann. § 151(a) (Vernon 2003).
        According to the executor, the dismissal order “closed” the case because it dismissed all claims between the parties. However, in determining whether the estate was closed, the issue is whether the debts of the estate have been paid and the property distributed such that there was no need for further administration. The dismissal order did not purport to do any of these things. Moreover, the dismissal order itself severed into a separate cause claims between the executor and a third party defendant. This establishes that there remained potential claims within the estate and thus that further administration was required. Moreover, the settlement agreement from which the dismissal order resulted specifically provided that the executor would not resign as independent executor of the estate, likewise establishing the need for further administration. Because the dismissal order did not close the estate, the probate court retained jurisdiction to order an accounting.
Arbitration
 
        We next turn to whether the probate court properly denied the executor's request for arbitration. Federal and state policy strongly favor arbitration. Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983); Prudential Sec. Inc. v. Marshall., 909 S.W.2d 896, 898 (Tex. 1995)(per curiam). Nevertheless, a party seeking to compel arbitration must show (1) the existence of an arbitration agreement, and (2) that the claim at issue falls within the scope of the arbitration agreement. See In re J.D. Edwards World Solutions Co., 87 S.W.3d 546, 549 (Tex. 2002)(original proceeding); Jenkens & Gilchrist, P.C. v. Riggs, 87 S.W.3d 198, 201 (Tex. App.- Dallas 2002, no pet.). In determining whether a claim falls within the scope of an arbitration clause, we focus on the factual allegations of the complaint, rather than the legal causes of action asserted. Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 900 (Tex. 1995). If the facts alleged in support of the claim stand alone, are completely independent of the contract, and the claim could be maintained without reference to the contract, the claim is not subject to arbitration. See AutoNation USA Corp. v. Leroy, 105 S.W.3d 190, 195 (Tex. App.-Houston [14th Dist.] 2003, no pet.); Pennzoil Co. v. Arnold Oil Co., 30 S.W.3d 494, 498 (Tex. App.-San Antonio 2000, no pet.).
        The question here is whether the “claim” for an accounting falls within the scope of the arbitration agreement. The arbitration clause provides for arbitration of any dispute arising under the settlement agreement. According to the independent executor, appellees request for an accounting is a dispute under the settlement agreement because it concerns the performance of his obligations under the settlement agreement. We disagree.
        The executor's mandatory statutory duty to provide an accounting under the provisions of the probate code is not a dispute between the parties, much less a dispute arising under the settlement agreement. Appellees' right to an accounting is purely statutory and completely independent of the settlement agreement. Such an accounting is not a claim and would not entitle appellees to any affirmative relief. Indeed, that a court has the power to order an accounting does not give the court authority to look at the substance of the accounting in an effort to determine whether it is accurate or whether the executor has properly administered the estate. Cf. Burk v. Satterfield, 525 S.W.2d 950, 954 (Tex. 1975) (section 149A does not speak to nor allow a probate court to require an accounting in accordance with a judgment construing a will in a prior action.). See also Hanau, 806 S.W.2d at 904. Nor does such an accounting otherwise adjudicate any rights or resolve any disputes between the parties. Thus, contrary to the executor's assertion, ordering the accounting would not allow the probate court to make any determinations regarding whether he performed his obligations under the settlement agreement. Because the executor's duty to provide an accounting is not a dispute under the settlement agreement, the probate court did not err in failing to order arbitration.
        We affirm the probate court's order and deny the petition for mandamus.
                                
 
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
060681F.P05