law-trustee-removal-misconduct-conflict-of-interest | breach of fiduciary duty | character / definition of trust |
Texas Supreme Court Decisions on
REMOVAL OF TRUSTEE, INDEPENDENT EXECUTOR
SUIT TO REMOVE TRUSTEE NOT GOVERNED BY ANY STATUTE OF LIMITATIONS
Ditta v. Conte, No. 07-1026 (Tex. Jun. 5, 2009) (Willett) (in action for removal of trustee, statute of limitations
does not apply; trustee may be removed for cause at any time, based on conduct that would otherwise be time-
barred, but suit for breach of fiduciary duty seeking monetary damages subject to four-year SoL)
LOUIS M. DITTA, GUARDIAN OF THE ESTATE OF DORIS L. CONTE, AN INCAPACITATED PERSON v. SUSAN
C. CONTE AND JOSEPH P. CONTE, JR.; from Harris County; 1st district (01-05-00603-CV, ___ SW3d ___, 08-
31-07)
motion to strike petitioner's appendix to brief on the merits dismissed as moot
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Willett delivered the opinion of the Court.
CONFLICT OF INTEREST NOT GROUNDS FOR REMOVING INDEPENDENT EXECUTOR OF ESTATE
Kappus v. Kappus, No. 08-0136 (Tex. May 1, 2009)(Willett) (probate case, mere conflict of interest not
enough to warrant removal of independent executor of estate)
JOHN KAPPUS v. SANDRA L. KAPPUS; from Anderson County;
12th district (12-06-00233-CV, 242 SW3d 182, 11-30-07)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Willett delivered the opinion of the Court
COURTS OF APPEALS CASES IN WHICH SUPREME COURT DENIED REVIEW
09‑0687 BOBBIE WASHINGTON v. ANNIE MARIE GARRETT SMITH, ET AL.; from Harrison County; 6th district
(06‑08‑00121‑CV, 289 SW3d 362, 06‑30‑09, pet denied Oct 2009)
(probate litigation, removal of administratrix, dependent, independent administration of estate, attorneys fees,
appellate sanctions denied)
The Texas Supreme Court recently noted that "as early as 1848, a Texas testator has been able to opt for the
independent administration of his estate, including the right to pick his own independent executor." Kappus v.
Kappus, No. 08-0136, 2009 Tex. LEXIS 296, at *4 (Tex. May 15, 2009) (footnote omitted). The Kappus court
further noted that an independent administrator may be removed by the county court when any of six statutory
grounds for removal have been met. Id. (citing Tex. Prob. Code Ann. § 149C(a)(1)-(6) (Vernon Supp. 2008).
The difference between Kappus and the case now before us is that Bobbie is a dependent, rather than an
independent, administratrix, as a matter of law. Washington, 262 S.W.3d 903. An administratrix in a dependent
administration "can perform only a limited number of transactions without seeking a court's permission, such as
paying taxes, voting stocks, insuring property, and releasing liens upon full payment." Eastland v. Eastland,
273 S.W.3d 815, 821 (Tex. App.-- Houston [14th Dist.] 2008, no pet.) (citing Tex. Prob. Code Ann. § 234(b)
(Vernon 2003)).
Fn. 6. "An independent executor who defends an action for his removal in good faith, whether successful or
not, shall be allowed out of the estate his necessary expenses and disbursements, including reasonable
attorney's fees, in the removal proceedings." Tex. Prob. Code Ann. § 149C(c) (Vernon Supp. 2008).