STANLEY GRAFF, Appellant v. 2920 PARK GROVE VENTURE, LTD., CAREY PLATT, AND CEC REALTY, Appellee

AFFIRM; Opinion issued October 13, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01607-CV
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STANLEY GRAFF, Appellant
V.
2920 PARK GROVE VENTURE, LTD., CAREY PLATT, AND CEC REALTY, Appellee
.............................................................
On Appeal from the 162nd District Court
Dallas County, Texas
Trial Court Cause No. 05-07548-I
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MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and FitzGerald
Opinion By Justice Bridges
        Stanley Graff appeals the trial court's judgment dismissing his claims against 2920 Park Grove Venture, Ltd., Carey Platt, and CEC Realty. In a single issue, Graff argues the trial court erred in granting summary judgment to appellees on Graff's claim for rescission of an underlying sale of an apartment complex. We affirm the trial court's judgment.
        Graff is the son of Al Graff, who died in April 1997. Al's will made a number of cash bequests and left the remainder of his estate to Graff. The cash bequests were quickly paid, but the residual estate was very large and included significant real estate holdings and car dealerships. Al's will named Richard Hayden as independent executor, and Hayden hired a law firm to represent him in the administration. With the assistance of hired attorney's, Hayden dealt with multi-million-dollar estate tax liabilities as well as the administration of the various properties. Hayden decided to sell an apartment complex in Irving to pay administrative costs and legal fees. Hayden contracted to sell the complex to LTS Group, Inc., who assigned the contract to Park Grove. The sale price was $6.9 million, and the agreement provided for a three percent commission to CEC Realty. CEC was a related entity to LTS, and Cary Platt was president of LTS. Hayden signed a deed conveying the property to Park Grove.
        Graff sued Park Grove, CEC, and Platt in the 192nd District Court, alleging the sale should be rescinded because Hayden lacked authority to convey the complex, and appellees had defrauded him. That suit was transferred to the 162nd District Court and consolidated with Graff's suit against the estate and Hayden. Appellees filed counterclaims and third-party claims against Hayden for breach of warranty, attorney's fees, and costs. After the trial court denied competing motions for summary judgment, the trial court granted appellees' renewed motion for partial summary judgment and severed into a separate cause number the claims between Graff and appellees and appellees' third-party claims against Hayden. The trial court subsequently granted summary judgment on appellees' counterclaims. Appellees moved to transfer newly filed claims against them from the probate court, but the trial court denied their motion to transfer, rendering the prior partial summary judgments final. Graff timely appealed.
        We first address appellees' motion to dismiss this appeal on the basis that no final, appealable order exists. Instead, appellees argue, this appeal is from two partial summary judgment orders and the order denying transfer and consolidation of a probate proceeding with this one. However, it appears that all claims in the underlying proceeding were resolved by the trial court's orders. The fact that the final judgment is spread among more than one order is not a barrier to its being final and appealable. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (if court has dismissed all claims in a case but one, order determining last claim is final). We deny appellees' motion to dismiss.
        In a single issue, Graff argues the trial court erred in granting summary judgment on Graff's claim for rescission of the executor's sale of the apartment complex. The standard of review for a summary judgment is well established: (i) the movant for summary judgment has the burden of showing there is no genuine issue of material fact and it is entitled to summary judgment as a matter of law; (ii) in deciding whether there is a disputed fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (iii) every inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant who moves for summary judgment must show that the plaintiff has no cause of action by either disproving at least one essential element of each theory of recovery or conclusively proving all elements of an affirmative defense. See Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990).
        The probate code provides that suits for the recovery of personal property, debts, or damages and suits for title or possession of lands or for any right attached to or growing out of the same or for injury or damage done thereto may be instituted by executors or administrators appointed in this state; and judgment in such cases shall be conclusive, but may be set aside by any person interested for fraud or collusion on the part of such executor or administrator. Tex. Prob. Code Ann. § 233A (Vernon 2003). This provision has been interpreted to give executors the exclusive right to bring suit against a third party to recover estate property. See Shepford v. Ledford, 962 S.W.2d 28, 31 (Tex. 1998) (“This Court has determined that generally, personal representatives of the decedent's estate are the only people entitled to sue to recover estate property.”); see also Frazier v. Wynn, 472 S.W.2d 750, 752 (Tex. 1971) (“It is settled in Texas that the personal representative of the estate of a decedent is ordinarily the only person entitled to sue for the recovery of property belonging to the estate.”).
        Graff relies on an exception to this general rule for situations “in cases where, there being an administration, it appears that the administrator will not or cannot act, or that his interest is antagonistic to that of the heirs desiring to sue.” Chandler v. Wellborn, 294 S.W.2d 801 (Tex. 1956). Graff does not explain how the administrator in this case would not or could not act. Graff's complaint is that the administrator acted, and Graff wants to rescind the administrator's action. Graff identifies his and the executor's antagonistic interests as their disagreement as to the executor's right to sell the apartment complex. However, this “disagreement” does not show antagonistic interests - the executor was still acting for the estate, and Graff is the sole beneficiary of that estate. As appellees point out, Graff was not without a remedy if he disagreed with the executor's actions beforehand: he could have brought an objection to the sale in probate court. Under the facts and circumstances of this case, we conclude Graff lacked standing to bring a claim against a third party to recover property of the estate. See Shepford, 962 S.W.2d at 31; Frazier, 472 S.W.2d at 752. Accordingly, the trial court properly entered summary judgment on Graff's claims seeking such a recovery. See Nixon, 690 S.W.2d at 548-49. We overrule Graff's sole issue.
        In a single cross-point, appellees argue the trial court erred in refusing to consolidate with this case a proceeding in the probate court involving fraud claims brought by Hayden against appellees. We review the trial court's decision to grant or deny a motion to transfer under an abuse of discretion standard. In re City of Coppell, 219 S.W.3d 552 (Tex. App.-Dallas 2007, no pet.). As Graff points out, the claims in this case involved the rescission of the apartment complex sale because the executor lacked authority. The claims against appellees in the probate court involve different fraud claims. Moreover, the claims in this case have been resolved by final judgment. Under these circumstances, we cannot conclude the trial court abused its discretion in refusing to consolidate the probate proceeding with this one. See id. We overrule appellees' cross-point.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
 
071607F.P05