Texas Commission on Environmental Quality, Guadalupe-Blanco River Authority, San Antonio River Authority, and San Antonio Water System v. San Marcos River Foundation

Opinion

NUMBER 13-07-314-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE MATTER OF THE ESTATE OF SUSAN A. RAMSAY, DECEASED

On appeal from County Court at Law No. 2 of Victoria County, Texas

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela Memorandum Opinion by Justice Vela

Appellant, Johnna Kay Zwernemann (“Johnna”), appearing pro se, appeals an order

of the trial court denying her application to be the temporary administrator of her mother’s

estate. We affirm. I. BACKGROUND

Susan Ramsay, the mother of Johnna, Michael Zwernemann and appellee, Rochelle

McDonald, was found dead in her mobile home on February 21, 2007. An investigator with

the Victoria County Sheriff’s office found a suicide note at the scene. The death was later

ruled a suicide. Although there was testimony offered that Ramsay prepared a will in 2002,

it could not be found after her death. Ramsay’s suicide note stated that there was no will.

The parties proceeded as if Ramsay died intestate.

Thereafter, all three children applied to be appointed administrator of her estate.

Both Michael and Johnna had been estranged from their mother. Johnna had not spoken

with her mother since 1999. McDonald had been given up for adoption by Ramsay at birth

and the two had reunited in 1999. After a two-day hearing before the court, the trial court

appointed McDonald to be the permanent dependent administrator. Later, the trial court

vacated its order because McDonald was unable to obtain a bond.

Johnna then filed another application to be appointed the temporary administrator

of Ramsay’s estate. McDonald opposed the application. In addition to the earlier hearing

that lasted two days, the trial court also held a lengthy hearing on Johnna’s application.

The trial court heard evidence that Johnna had broken into Ramsay’s mobile home after

her death and had removed estate property. The trial court ordered Johnna to return the

property, but, as of the date of the hearing on Johnna’s application, she had not done so.

Johnna testified that she had taken a guitar from the mobile home and that it was being

appraised. She said the guitar that had originally been in the case is “the subject of a

murder investigation” in Austin. Johnna testified that she believed her mother might still

be alive and part of a witness protection program. She also testified that her mother may

2 not have committed suicide and Johnna desired to further investigate the circumstances

of her death.

Johnna claimed in the trial court to be indigent, yet she believed that she could

qualify for a bond if named temporary administrator. According to Johnna, the Ramsay

estate might be worth more than one million dollars; other witnesses testified that the

probate assets were merely a mobile home, a truck and some personal items. Johnna

also consistently denied at the hearings that McDonald was Ramsay’s daughter even in

the face of uncontroverted evidence provided by McDonald’s adoptive mother that Ramsay

was McDonald’s biological mother. After Johnna introduced all of the evidence she wished

to present, the trial court denied her application to be temporary administrator of the

Ramsay estate.

II. STANDARD OF REVIEW AND APPLICABLE LAW

The probate code lists the following persons as not qualified to serve as an executor

or administrator of an estate: “. . . (a) [a]n incapacitated person; (b) [a] convicted felon .

. .; (c) [a] non-resident (natural person or corporation) of this State who has not appointed

a resident agent to accept service of process . . .; (d) [a] corporation not authorized to act

as a fiduciary in this State; or (e) [a] person whom the court finds unsuitable. TEX . PROB.

CODE ANN . § 78 (Vernon 2003). The probate code does not define the term “unsuitable.”

The court has broad discretion in determining who is suitable for an appointment as an

administrator in a particular case. Ayala v. Mackie, 158 S.W.3d 568, 572 (Tex. App.–San

Antonio 2005, pet. denied); In re Estate of Robinson, 140 S.W.3d 801, 806 (Tex.

App.–Corpus Christi 2004, pet. dism’d); Cravey v. Hennings, 705 S.W.2d 368, 370 (Tex.

App.–San Antonio 1986, no writ). It appears that the legislature intended trial courts to

3 have wide latitude in determining who should administer estates. Dean v. Getz, 970

S.W.2d 629, 633 (Tex. App.–Tyler 1998, no pet ). A temporary administrator does not

distribute an estate, but has the duty to conserve it until a permanent appointment.

Hennings, 705 S.W.2d at 370. Our review of this appointive power is limited to the

question whether the court has abused its discretion. Id. at 371.

III. ANALYSIS

Johnna’s issues will be addressed as a single issue. She complains of the trial

court’s order denying her application. She also contests the earlier order appointing

McDonald, but, because that order was vacated by the trial court, there is nothing for us

to review.

Here, the trial court heard ample evidence to decide, in its discretion, that Johnna

was an unsuitable candidate for appointment as temporary administrator. There was

evidence that Johnna broke into Ramsay’s mobile home, refused to acknowledge that

McDonald was Ramsay’s child, alternatively argued that Ramsay might be alive or had

died through suspicious circumstances not related to suicide, and failed to comply with the

trial court’s earlier order requiring her to turn over the items she had improperly taken from

the Ramsay residence. The trial court did not abuse its discretion in denying Johnna’s

appointment based upon the evidence it heard. Johnna’s issues are overruled.

IV. CONCLUSION

4 We affirm the judgment of the trial court.

ROSE VELA Justice

Memorandum Opinion delivered and filed this 31st day of July, 2008.