in Re Wade Meeker, James Meeker, Barney Holland, as Independent of the Estate of Lawrence H. Meeker, and Natasha Wesson

• Court: Court of Appeals of Texas
• Decided: June 29, 2016
• Docket: 02-16-00103-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-16-00103-CV

IN RE WADE MEEKER; JAMES RELATORS MEEKER; BARNEY HOLLAND, AS INDEPENDENT EXECUTOR OF THE ESTATE OF LAWRENCE H. MEEKER; AND NATASHA WESSON

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ORIGINAL PROCEEDING TRIAL COURT NO. 2014-PR01451-2-B

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DISSENTING OPINION

I. INTRODUCTION

Because Real Party in Interest Alan Meeker (Alan) lacks standing to assert

the “potential claim or suit” he seeks to investigate by virtue of his “Verified Rule

202 Petition for Deposition and Subpoena Duces Tecum to Investigate Potential

Claims,” I would hold that Respondent the Honorable Joe Loving abused his

discretion by granting Alan relief under the rule 202 petition. Consequently, I would grant mandamus relief to Relators Wade Meeker; James Meeker; Barney

Holland, as independent executor of the estate of Lawrence H. Meeker; and

Natasha Wesson requiring the trial court to set aside in toto its February 24, 2016

“Order Granting Verified Rule 202 Petition and Intervention for Deposition and

Subpoena Duces Tecum to Investigate Potential Claims.”1

II. FACTUAL BACKGROUND

Lawrence Meeker (Mr. Meeker) died on May 27, 2014; Alan is one of Mr.

Meeker’s surviving sons, and Margaret is Mr. Meeker’s widow. A will executed

by Mr. Meeker on December 15, 2010 (the Will) was admitted to probate on

September 2, 2014.2 Alan did not file a contest to the Will.

In the Will, Mr. Meeker distributed the assets of two trusts—of which he

was a lifetime beneficiary and trustee—by exercising special powers of

appointment granted to him by the two trusts. Alan told his brother, Relator

Wade Meeker, that Alan believed Mr. Meeker’s exercise of the testamentary

powers of appointment was not valid. Accordingly, Relators filed a declaratory

judgment action seeking a declaration that Mr. Meeker’s exercise of the

testamentary special powers of appointment granted to him by the trusts—to

1 Because Alan’s lack of standing to actually file the suit he seeks to investigate via his rule 202 petition is also dispositive of Relators’ request for mandamus relief concerning Real Party in Interest Margaret Meeker’s (Margaret) “Intervention to Join Rule 202 Action,” I would not separately address Relators’ claims concerning Margaret. 2 The Will revoked all prior wills and contained an in terrorem clause.

2 distribute the trusts’ assets through the Will—was valid, final, and binding. In

response to Relators’ motion for summary judgment in the declaratory judgment

action, Alan filed a February 20, 2015 affidavit stating that he “agreed and [had]

communicated to [Relators] that [Mr. Meeker’s] exercise of his powers of

appointment in [the Will] is valid as it relates to me” and that “I have not

contested [the Will] of [Mr. Meeker] in any regard.” Accordingly, the trial court

determined that the parties were all in agreement as to the matter sought to be

declared so that no controversy existed and therefore ordered Relators’

declaratory judgment action dismissed.

Relator Barney Holland, as independent executor of Mr. Meeker’s estate,

then made distributions to the beneficiaries of the Will, including Alan. Alan has

received the bulk of the assets bequeathed to him under the Will, except a small

amount of cash necessary to cover ad valorem and income taxes as to the

assets distributed.3

Approximately nine months later, on October 21, 2015, Alan filed a

“Verified Rule 202 Petition for Deposition and Subpoena Duces Tecum to

Investigate Potential Claims,” alleging that “[u]pon information and belief [Mr.

Meeker] may have lacked the requisite mental capacity necessary to execute

[the Will,] which would render [the Will] void under Texas law.” Alan’s rule 202

petition alleged that the depositions and documents requested in the petition

3 Alan concedes that he has “already received approximately $360,000 from [Mr. Meeker’s] estate” per the terms of the Will.

3 would allow him to investigate this claim—that Mr. Meeker lacked testamentary

capacity to execute the Will.

Relators filed responses and objections to Alan’s rule 202 petition,

asserting, among other things, that Alan lacked standing to challenge Mr.

Meeker’s capacity to execute the Will because he had accepted benefits under

the Will. After a hearing, the trial court signed a February 24, 2016 order

granting Alan the discovery he sought in his rule 202 petition.

Relators filed this petition for writ of mandamus complaining that

Respondent abused his discretion in several respects by granting Alan’s rule 202

petition.

III. STANDARD OF REVIEW

Mandamus relief is proper to correct a clear abuse of discretion when there

is no adequate remedy by appeal. In re Frank Kent Motor Co., 361 S.W.3d 628,

630–31 (Tex.) (orig. proceeding), cert. denied, 133 S. Ct. 167 (2012); In re

Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding). Rule 202 of the Texas Rules of Civil Procedure permits a person to

petition the trial court for an order authorizing the taking of a deposition to

perpetuate or obtain testimony for use in an anticipated suit or to investigate a

potential claim or suit. See Tex. R. Civ. P. 202.1. A party to a rule 202 petition

against whom suit is anticipated or investigated may seek mandamus review of

an allegedly improper rule 202 order. In re Wolfe, 341 S.W.3d 932, 933 (Tex.

2011) (orig. proceeding); In re Jorden, 249 S.W.3d 416, 420 (Tex. 2008) (orig.

4 proceeding); see also generally Tex. R. Civ. P. 202.1, 202.2 (setting forth

purpose and requirements of rule 202 proceeding). A trial court abuses its

discretion by authorizing pre-suit discovery under rule 202 when the rule 202

plaintiff ultimately would have no standing to assert the potential claims forming

the basis of the rule 202 petition. See Wolfe, 341 S.W.3d at 933 (holding trial

court abused its discretion by allowing plaintiff to take rule 202 pre-suit deposition

of county when the plaintiff would not have standing to bring suit). Under such

circumstances, when the defendant is forced to participate in discovery via a rule

202 petition concerning claims that the plaintiff lacks standing to actually bring,

the defendant has no adequate remedy by appeal. Id. (explaining “[r]ule 202 is

not a license for forced interrogations. Courts must strictly limit and carefully

supervise pre-suit discovery to prevent abuse of the rule” and granting

mandamus relief when rule 202 discovery sought by party lacking standing to

bring underlying suit).

IV. ALAN LACKS STANDING

A. The Law Concerning Standing to Contest a Will After Acceptance of Benefits Under the Will

The doctrine of estoppel by acceptance-of-benefits is founded on the

principle that a litigant cannot treat a judgment as both right and wrong. Tex.

State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex. 2002); Carle v. Carle, 149 Tex.

469, 472, 234 S.W.2d 1002, 1004 (1950). One who “accepts and retains the

benefits and fruits of a judgment is thereafter estopped to assert its invalidity,”

5 typically by appealing the judgment. Mueller v. Banks, 332 S.W.2d 783, 786

(Tex. Civ. App.—San Antonio 1960, no writ). When the acceptance-of-benefits

doctrine applies to an appellant, her appeal is rendered moot. See F.M.G.W. v.

D.S.W., 402 S.W.3d 329, 332 (Tex. App.––El Paso 2013, no pet.).

The doctrine of estoppel by acceptance-of-benefits applies not only to

estop a party from appealing a judgment under which he has accepted benefits,

but also to estop a party from contesting a will under which he has accepted

benefits. See Trevino v. Turcotte, 564 S.W.2d 682, 685–86 (Tex. 1978)

(applying doctrine to estop will beneficiary who had accepted benefits under will

from subsequently filing will contest). Under the estates code, any “person

interested in an estate” has standing to contest a probate proceeding. See Tex.

Est. Code Ann. § 55.001 (West 2014). A person is interested in an estate if they

are an “heir, devisee, spouse, creditor, or any other [person] having a property

right in or claim against an estate being administered.” Id. § 22.018(1) (West

2014). But, “[i]t is a fundamental rule of law that a person cannot take any

beneficial interest under a will and at the same time retain or claim any interest,

even if well founded, which would defeat or in any way prevent the full effect and

operation of every part of the will.” Trevino, 564 S.W.2d at 685–86; see also In

re Estate of Davis, 870 S.W.2d 320, 322 (Tex. App.––Eastland 1994, no writ).

6 That is, a “person interested” in a will nonetheless lacks standing to contest4 the

will if they have accepted benefits under that will; a person estopped to contest a

will due to acceptance of benefits thereunder does not qualify as a person

interested in the estate. See Trevino, 564 S.W.2d at 687; In re Estate of

McDaniel, 935 S.W.2d 827, 829 (Tex. App.—Texarkana 1996, writ denied);

Estate of Davis, 870 S.W.2d at 322; Sheffield v. Scott, 620 S.W.2d 691, 693–94

(Tex. Civ. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.); see also In re Estate

of Hormuth, No. 04-14-00105-CV, 2014 WL 4438491, at *2 (Tex. App.—San

Antonio Sept. 10, 2014, no pet.) (mem. op.) (recognizing that “Texas Courts have

consistently applied estoppel [by acceptance of benefits] in determining whether

a person has standing to contest a will.”) (emphasis omitted).

B. Analysis

The mandamus record before this court establishes that Alan accepted the

benefits afforded him under the Will after it was admitted to probate on

September 2, 2014; indeed, Alan does not contend otherwise. Alan did not

contest the probate of the Will. To the contrary, in a February 20, 2015 affidavit

opposing Relators’ motion for summary judgment in Relators’ subsequently filed

declaratory judgment action, Alan expressly averred that Mr. Meeker had validly

exercised his powers of appointment in the Will and that he, Alan, had not

4 A will contest is a “direct attack on the order admitting a will to probate” and if successful, only has the effect of setting aside the probated will. Stoll v. Henderson, 285 S.W.3d 99, 105 (Tex. App.––Houston [1st Dist.] 2009, no pet.).

7 contested the Will. Despite Alan’s acceptance of benefits under the Will, despite

his failure to contest the Will when it was probated, and despite his sworn

averment in his affidavit that Mr. Meeker had validly exercised his powers of

appointment in the Will, Alan’s rule 202 petition seeks to investigate a claim that

Mr. Meeker lacked testamentary capacity so that the Will is void—i.e., a will

contest.5

The law is well-settled that Alan, who has accepted the benefits due him

under the Will, retains no claim that the Will is void.6 See Trevino, 564 S.W.2d at

685–86; see also Estate of McDaniel, 935 S.W.2d at 829; Estate of Davis, 870

S.W.2d at 322; Sheffield, 620 S.W.2d at 693–94. Compare Horton, 965 S.W.2d

at 85 (recognizing person who did not take under will—unlike Alan here—

possesses standing to bring post-probate will contest asserting testator’s lack of

testamentary capacity and bears burden of proving such lack of testamentary

capacity); Click v. Sutton, 438 S.W.2d 610, 612 (Tex. Civ. App.—San Antonio

1969, writ ref’d n.r.e.) (same). Because Alan has accepted benefits under the

Will and, in fact, even solicited the distribution of such benefits to himself via his

5 See, e.g., Lee v. Lee, 424 S.W.2d 609, 610 n.1 (Tex. 1968) (recognizing that in will contest filed after will is admitted to probate, burden of proof is on party contesting will to establish testator lacked testamentary capacity); Horton v. Horton, 965 S.W.2d 78, 85 (Tex. App.—Fort Worth 1998, no pet.) (same). 6 Alan’s rule 202 petition globally alleges that he seeks to investigate “any potential claim he may have to [Mr. Meeker’s] estate and/or the assets [of the trust disposed of in the Will],” purportedly based on Mr. Meeker’s lack of capacity to execute the Will.

8 affidavit, Alan is estopped under the acceptance-of-benefits doctrine from

bringing a will contest claim asserting that the Will is void. See Trevino, 564

S.W.2d at 685–86; see also Estate of McDaniel, 935 S.W.2d at 829; Estate of

Davis, 870 S.W.2d at 322; Sheffield, 620 S.W.2d at 693–94; see also, e.g.,

Carle, 234 S.W.2d at 1004 (“[a] litigant cannot treat a judgment as both right and

wrong”); Graham v. Caballero, 243 S.W.2d 286, 288 (Tex. Civ. App.—El Paso

1951, writ ref’d n.r.e.) (“One may not accept and receive[] the benefits of a

judgment and deny its validity.”). Alan thus lacks standing to bring the very claim

his rule 202 petition seeks to investigate, and a rule 202 proceeding is not

available to Alan to investigate a claim that he lacks standing to ultimately

pursue. See Wolfe, 341 S.W.3d at 933 (holding trial court abused its discretion

by allowing plaintiff to take rule 202 pre-suit deposition to investigate suit plaintiff

lacked standing to file); F.M.G.W., 402 S.W.3d at 334 (recognizing that the

application of the acceptance-of-benefits doctrine deprives a party of standing).

To hold otherwise, as the trial court did, impermissibly allows Alan to avoid

discovery limitations; Alan cannot utilize rule 202 to obtain discovery regarding a

claim he lacks standing to assert. See Wolfe, 341 S.W.3d at 933.

To the extent Alan claims, and the Majority Opinion holds, that his

acceptance of benefits under the Will is not inconsistent with a will contest

claiming the will is void,7 the established law is to the contrary; Alan is treating

7 Alan contends that “simply filing a will contest does not mean that Alan is taking a position inconsistent with the benefits he has already received.”

9 the Will as both valid and void. See Trevino, 564 S.W.2d at 685–86; Carle, 234

S.W.2d at 1004; Estate of McDaniel, 935 S.W.2d at 829; Estate of Davis, 870

S.W.2d at 322; Sheffield, 620 S.W.2d at 693–94; Graham, 243 S.W.2d at 288.

To the extent Alan claims, and the Majority Opinion holds, that under the case of

Holcomb v. Holcomb, 803 S.W.2d 411 (Tex. App.––Dallas 1991, no writ) the

acceptance-of-benefits doctrine does not apply because he would have received

a larger share of Mr. Meeker’s estate under some other yet-to-be-identified will or

the laws of intestacy, Holcomb has been criticized as contrary to binding Texas

Supreme Court authority. See Estate of McDaniel, 935 S.W.2d at 829.8

Because Holcomb is, in my view, contrary to Trevino and is an aberration in the

8 The court in Estate of McDaniel stated,

McDaniel argues that estoppel by acceptance of benefits should not apply in this case because the property he received under the 1994 will is but a small part of what he allegedly would have received under the 1989 will he wishes to have probated. McDaniel relies almost exclusively on Holcomb v. Holcomb [citation omitted]. Holcomb holds that a person who has received benefits under a will is not estopped to contest that will if the person would have received the same or a greater amount of benefit under another will of the testator or under the law of intestacy. [Citation omitted.] This holding is an inaccurate statement of Texas Supreme Court precedent on this issue. The proper test for determining whether a beneficiary under a will has received benefits which estop him from contesting that will is whether the benefits granted him by the will are or are not something of which he could legally be deprived without his consent. [Citation omitted.]

935 S.W.2d at 829 (emphasis added). Under the above test, here, Alan accepted benefits under the Will because he could not be legally deprived of the distributions made to him under the Will without his consent. See id.

10 case law, it does not apply. See Trevino, 564 S.W.2d at 685–86; Estate of

McDaniel, 935 S.W.2d at 829; Estate of Davis, 870 S.W.2d at 322; Sheffield, 620

S.W.2d at 693–94.

Moreover, the cases cited by the Majority Opinion for the proposition that

“when a successful challenge to a transaction would not affect the entitlement to

benefits already received, there is no inconsistency inherent in the challenge

and, thus, no estoppel” are inapplicable here. Here, Alan would not be entitled to

the benefits he has already received under the Will; if Alan successfully

prosecutes a contest to the Will and obtains a declaration that the Will is void

based on Mr. Meeker’s alleged lack of capacity, Alan is entitled to no benefits

under the Will. After a successful contest to the Will, Alan might be entitled to

different and possibly greater benefits under a different will, or under the law of

intestate, but Alan would not be entitled to the benefits he has already accepted

under the Will if the Will is declared void. Cf. Lopez v. Munoz, Hockema & Reed

L.L.P., 22 S.W.3d 857, 864 (Tex. 2000) (explaining that parties accepting monies

under a settlement agreement are not estopped to assert their entitlement to

additional monies under the same settlement agreement); Carle, 234 S.W.2d at

1004 (explaining that an appellant who has accepted a benefit under a judgment

is not estopped from appealing that judgment when reversal of the judgment

would not deprive appellant of his right to the benefit he received under that

judgment). Contrary to the Majority Opinion’s holding, Alan is not simply seeking

11 greater benefits under the same Will; Alan is treating the Will as both valid (by

accepting its benefits) and void (by asserting a contest).

For these reasons, I would sustain Relators’ issue IIC9 in their petition for

writ of mandamus and hold that the trial court abused its discretion by granting

Alan relief on his “Verified Rule 202 Petition and Intervention for Deposition and

Subpoena Duces Tecum to Investigate Potential Claims.”

V. CONCLUSION

Because I would hold that the trial court abused its discretion by granting

Alan relief on his “Verified Rule 202 Petition and Intervention for Deposition and

Subpoena Duces Tecum to Investigate Potential Claims,” and because Relators

have no adequate remedy by appeal, I would conditionally grant a writ of

mandamus ordering Respondent to set aside in toto his February 24, 2016

“Order Granting Verified Rule 202 Petition and Intervention for Deposition and

Subpoena Duces Tecum to Investigate Potential Claims.” Because the Majority

does not, I respectfully dissent.

/s/ Sue Walker

SUE WALKER JUSTICE

DELIVERED: June 29, 2016

9 Relators’ issue IIC states that “Alan is estopped to contest [the Will] since he has accepted benefits under [the Will].”