Texas
Trial Court Jurisdiction
YouKnowItAll.com
©
A. Hawkins 2002
A Note on Texas Probate
and Guardianship Jurisdiction
Texas, trial court
probate and guardianship[1] jurisdiction is not
a subject for the timid. There are hundreds of published appellate opinions on
Texas trial court probate jurisdiction issues since probate jurisdiction was
revised in 1973. It is not an easy
subject. A surprisingly large portion of Texas probate litigation is void
because the trial occurs in a court which lacks jurisdiction. Other litigation
is erroneously dismissed for lack of jurisdiction by courts that do have
jurisdiction. Court proceedings without jurisdiction are void. Many lawyers
think estate and trust litigation is easy. It isn't. Many lawyers and judges don't even know the issues, much less the
law. Many clueless lawyers become trial
and appellate judges. Probate trial
court jurisdiction law is complicated. Some law is unwritten. Some remains
undecided. Sometimes the judges on an
appellate court disagree among themselves.
Texas estate jurisdiction has been described as a nightmare[2] but it isn’t literally a nightmare. It is more like a
horror story that causes nightmares for those who are exposed to it. Do you dare read on?
Texas probate
jurisdiction is not simple or rational.
Much is unclear and unsettled. It is a mess.[3] If anyone thinks
they know it all, this course may change your opinion. When it comes to Texas probate jurisdiction,
no one knows it all. No one can know it all. For those who enjoy complexity,
this course is a delight. Those who seek rational patterns will be
frustrated. These cases may give you a
headache. Aspirin may help.
Keeping Score
Some might want to note
the number of cases in which:
1. The trial court had jurisdiction to hear what
it heard.
2. The trial court did not have jurisdiction to
hear what it heard.
3. The court of appeals claims that judicial
efficiency is the goal, thus demonstrating a sly sense of humor.
The
Process
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and dates. After you complete your
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4. YouKnowItAll.com provides a
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credit hours you earned. If you are in the Texas bar, we report your credit to
the State Bar of Texas. If you are in
another bar and need something else, let us know.
* * * * *
This course is primarily
a case study which relies on the words of the courts which are quoted so that
you may read them yourself. The teacher
has selected quotations; deleted
original emphasis, added the authors emphasis; and moved citations to
footnotes. Commentary by the teacher is included in the text and in
footnotes. Five asterisks ( * * * * * )
identify each new case, If a case doesn’t interest you, just search for * * * *
* to find the next one. This also helps if you wish to go back to reread a
case.
There are three kinds of
footnotes.
1. Footnotes
by the court retain the court’s original number. Our footnote is a footnote to
that number.
2.
Footnotes that move citations to the footnotes are intended to make the
material more readable. The footnote will have the court’s citations.
3.
Footnotes by the author contain commentary.
If you read this course
online, your browser will probably let you click on a footnote number to go to
the footnote and click on the number in the footnote to return to the
text. Some browsers will show the
footnote if you hold your curser over the footnote number without clicking If you print the text, you may wish to
staple the footnotes separately so you may easily refer to them. They are at
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Table of Contents
Case #1 Columbia
Rio Grande Regional Hospital v. Stover
April
28, 2000 17 S.W.3d 387 (TexApp -Corpus Christi 2000)
Case #2 Garza
v. Rodriguez
January
26, 2000 18 S.W.3d 694 (TexApp - San Antonio 2000)
Case #3 Enax
v. Noack
January
31, 2000 12 S.W.3d 609 (TexApp Houston[first dist.] 2000)
Case #4 Schuld v Dembrinski
March
17, 2000, 12 S.W.3d 485 (TexApp - Dallas 2000)
Case #5 Jansen
v. Fitzpatrick
March
2, 2000 14 S.W.3d 426 (TexApp Houston [14th district] 2000)
Case #6A Phifer,
administrator of the Estate of Bailey v. Nacogdoches County Central Appraisal
District
April
25, 2000 (TexApp Tyler 2000) (Opinion later withdrawn... see 6B)
Majority
Opinion by Justice Worthen, joined by Justice Hadden Dissenting Opinion by
Chief Justice Murphy
Case #6B Phifer,
administrator of the Estate of Bailey v. Nacogdoches County Central Appraisal
District
October
31, 2000 45 S.W.3d 159 (TexApp - Tyler 2000) (Replaces 6A)
Opinion by
Justice Worthen,
Case #7 Sabine
Gas Transmission Company, et al. v. Winnie Pipeline Transmission Company and
Southeastern Marketing Company, et al
March
2, 2000 15 S.W.3d 199 (TexApp Houston [14th dist.] 2000)
Case #8 Herring
v. Welborn July 12, 2000 27
S.W.3d 132 (Tex.App.-San Antonio 2000)
Majority Opinion by Chief Justice Hardberger,
joined by Justice López, and joined in part by Justice Green who also dissented
in part.
Concurring
and dissenting opinion by: Paul W. Green, Justice
The Course Text
*
* * * *
Case #1 Columbia Rio Grande Regional Hospital v. Stover
April
28, 2000 17 S.W.3d 387 (TexApp -Corpus Christi 2000)
Columbia[4] shows how a creditor may turn a claim against an estate
into a liability to the estate, a remarkable feat in most places, but an easy
one in Texas. The path through the
courts is an interesting one that is all too representative of the tangled processing
of probate cases and issues in Texas.
In Texas, the first test in probate
litigation is determining which court has jurisdiction. Many fail that test. The rules governing
creditors claims are difficult and treacherous. The rules governing the
interplay of jurisdiction, creditors claims, and independent administrations
are almost impossible to follow. The best guidebook may be the classic tale of
Alice in Wonderland. Clearly the spirit
of Lewis Carroll is alive. As you read
Columbia, ask yourself what the difference is between a dependent and
independent administration of an estate.
Feel free to be skeptical of the court's analysis of the concept of
county court at law jurisdiction over independent executors.
“Appellant Columbia Rio Grande Regional Hospital, a medical
provider, filed a declaratory action against Stover, independent executrix of
the estate of Reed, deceased. Stover filed a motion for summary judgment
asserting, inter alia, the action was barred by res judicata and collateral
estoppel. . . . We affirm.
“Columbia provided medical services to Reed for an
on-the-job injury. Columbia charged Reed for services provided in the amount of
$15,395.85, and later filed a hospital lien for that amount in Hidalgo County.
1[5] Subsequently, Reed filed suit against his
employer in the 206th District Court in Hidalgo County (Reed Lawsuit). Columbia
filed notice of its hospital lien in the Reed Lawsuit. 2[6] During the course of the lawsuit Reed died,
and Stover filed an application to probate Reed's will. The probate court,
County Court at Law No. 4, Hidalgo County, in Cause No. 25,040-D, appointed
Stover independent executrix of Reed's estate. Stover stepped in as plaintiff
in the Reed Lawsuit. When the lawsuit settled, the 206th District Court entered
judgment whereby the defendant's insurer, Motors Insurance Corporation
(Motors), agreed to tender to Stover the settlement amount of $135,000.00, out
of which Columbia's hospital lien was to be satisfied, depending on the outcome
of litigation between the estate and Columbia. Motors issued a $15,395.85 check
payable to Stover's trustee and Columbia. Stover refused to sign the check over
to Columbia and the district court placed the funds in its registry.
“At Stover's request, the district court ordered Motors'
check transferred to the registry of the county court where the estate was
being probated. Columbia then filed an authenticated claim for Reed's medical
expenses in the probate proceeding. In response, Stover filed a motion to bar
Columbia's claim asserting the claim did not attach to the estate or,
alternately, the claim was untimely filed. The probate court granted Stover's
motion.
“Contemporaneously with these proceedings, Columbia filed an
original declaratory judgment action against Stover urging its rights pursuant
to the hospital lien. Columbia's action was assigned the same cause number as
the probate proceeding in County Court at Law No. 4. Stover answered,
counterclaimed, and filed a motion for summary judgment based on the
affirmative defenses of res judicata and collateral estoppel. In her motion,
Stover asserted Columbia's causes of action were barred because Columbia's
claims had been adjudicated by either: (1) the judgment of the 206th District
Court regarding Reed's personal injury cause of action; or (2) the order of the
probate court barring Columbia's claim. Columbia responded and objected to
Stover's summary judgment evidence. Columbia also filed a cross motion for
summary judgment and amended its petition. Stover did not amend her motion.
“On January 26, 1998, by agreement of the parties, the
probate court severed Columbia's action against Stover from the probate
proceeding and assigned the severed action cause number 25,040-D-1. On February
3, 1998, the probate court granted Stover's summary judgment motion. The probate
court did not rule on Columbia's cross motion for summary judgment. On February
10, 1998, Stover non-suited her counterclaim against Columbia.
“In addition to the foregoing litigation, Columbia filed
suit against Motors in County Court at Law No. 3, asserting liability for
paying over the hospital lien and for not paying the proceeds directly to
Columbia. Motors filed an unopposed motion to consolidate Columbia's suit
against Motors with cause number 25,040-D. The motion was granted on February
4, 1998.
“By points of error one and three Columbia complains that
the summary judgment is not final because it does not dispose of all claims and
parties. Columbia first asserts this appeal is taken from cause number
25,040-D, the cause into which its claims against Motors were consolidated.
Columbia argues that because the summary judgment does not address its claims
against Motors, it is interlocutory. In response, Stover asserts this appeal is
from cause number 25,040-D-1, a cause severed out of 25,040-D. Stover contends
because Columbia's claims against Motors were never before the trial court in
the severed cause, she did not need to address them.
“We agree with Stover that the appeal is from case number
25,040-D-1. On January 26, 1998, the
trial court signed an agreed order severing Columbia's cause of action against
Stover from the probate proceeding, cause number 25,040-D, and assigning that
action a new cause number, 25,040-D-1.[7] The court granted Stover's summary judgment
in the severed action on February 3, 1998. The following day, February 4, 1998,
Columbia's lawsuit against Motors was consolidated with the probate proceeding,
cause number 25,040-D, not the severed cause. Columbia's claims against Motors
were never before the trial court in cause number 25,040-D-1. As Motors was
never a party to the severed lawsuit, it was not necessary for the summary
judgment to address Columbia's claims against Motors.
“. . . Finally,
Stover concedes that the order was interlocutory because the summary judgment order
did not address Stover's counterclaims. The probate court, however, non-suited
Stover's counterclaim on February 10, 1998, seven days after the entry of the
summary judgment. Where an interlocutory order is entered disposing of the
interests of less than all parties and claims, that order does not become final
until a subsequent order is entered disposing of the remaining parties and
claims.[8] Once an order has been entered disposing of
all remaining parties and issues, all the orders merge, creating a final and
appealable judgment. Id. Therefore, the probate court's summary judgment,
interlocutory in nature when granted, became final on February 10, 1998, when
the trial court disposed of Stover's counterclaim. Because we conclude the
judgment from which Columbia appealed is a final judgment, this Court has
jurisdiction to hear Columbia's appeal. . . .
“Res judicata prevents the relitigation of a claim or cause
of action that has been finally adjudicated, as well as related matters that,
with the use of diligence, should have been litigated in the earlier suit.[9] The claim of res judicata requires proof of
the following: (1) a prior final judgment on the merits by a court of competent
jurisdiction; (2) identity of parties or those in privity with them; and (3) a
second action based on the same claims as were raised or could have been raised
in the first action.[10]
“We note at the outset that Columbia's brief contains no
assertion that Stover failed to establish the identity of parties, the second
element of res judicata. Further, while Columbia asserts Stover failed to
establish the third element of res judicata, a second action based on the same
claims as were raised or could have been raised in the first action, its brief
contains no argument, supported by citations to authorities and the record, as
to why its declaratory judgment action is not based on claims raised or claims
that could have been raised.[11] Accordingly, Columbia's argument is
restricted to its contention that Stover did not establish the first element of
res judicata, a prior final judgment on the merits by a court of competent
jurisdiction.
“Columbia first argues that there is no prior order
adjudicating its claims. Columbia contends that the probate court had no
jurisdiction to enter the order; therefore, the prior probate order granting
Stover's motion to barr Columbia's lien in the probate proceeding is void.
Columbia asserts that the probate order constitutes a nullity and cannot be the
basis of a defense of res judicata.
“Columbia contends claim administration by an independent
administrator is to be conducted in accordance with sections 145 and 146 of the
Texas Probate Code without further action by the court. Columbia argues section
145(h) expressly denies the probate court jurisdiction in the administration of
the estate, including claims administration. Stover asserts the probate court
has jurisdiction pursuant to sections 5 and 5A of the code. Stover urges
sections 5 and 5A must be read in conjunction with the last phrase of section
145(h) allowing for intervention where the code specifically provides for
action in the probate court.
Section 145(h) of the probate code provides:
When an independent administration has been created, and the
order appointing an independent executor has been entered by the county court,
and the inventory, appraisement, and list aforesaid has been filed by the
executor and approved by the county court, as long as the estate is represented
by an independent executor, further action of any nature shall not be had in
the county court except where this Code specifically and explicitly provides
for some action in the county court.[12]
“While the general purpose of section 145 is to free the
independent executor from the control of the court, except where the code
specifically and explicitly provides otherwise,[13] it is equally clear
that courts have determined the legislature did not intend for the independent
administrator to be completely free from judicial supervision.[14] Because we conclude that section 145(h) does
not deny a statutory county court jurisdiction over an independent
administration, we look to code provisions that address probate jurisdiction in
statutory county courts.
“The general jurisdiction of a statutory county court
sitting in probate is described in sections 5 and 5A. The applicable provisions
of section 5 include:
(c) In those counties where there is a statutory
probate court, county court at law, or other statutory court exercising the
jurisdiction of a probate court, all applications, petitions and motions
regarding probate and administrations shall be filed and heard in such courts
and the constitutional county court, rather than in the district courts, unless
otherwise provided by the legislature, and the judges of such courts may hear
any of such matters sitting for the judge of any of such courts. In contested
matters, the judge of the constitutional county court may on his own motion,
and shall on the motion of any party to the proceeding, transfer the proceeding
to the statutory probate court, county court at law, or other statutory court
exercising the jurisdiction of a probate court, which may then hear the
proceeding as if originally filed in such court.
. . .
(e) All courts exercising original probate
jurisdiction shall have the power to hear all matters incident to an estate.[15]
“Significantly, probate code section 5(c) states that all
motions regarding probate and administrations shall be filed and heard in
statutory county courts exercising the jurisdiction of a probate court. [16] Section 5(e) further provides those courts
exercising original probate jurisdiction, which include statutory county courts
pursuant to section 5(c), shall have the power to hear all matters incident to
an estate.[17] This is a general grant of authority to
statutory county courts. [18] Additionally, probate code section 5A(a)
plainly states that in proceedings in statutory county courts at law, the
phrase "incident to an estate" includes "all claims by or
against an estate," and "generally all matters relating to the
settlement, partition, and distribution of estates of deceased persons."[19] This statute codifies case law.[20]
“Columbia's reliance on Carter v. Brady[21] for the proposition
that a probate court has no jurisdiction to determine the validity of claims
against an estate being administered by an independent executor, is misplaced.
Carter predates the legislature's 1973 modification of the jurisdictional
framework for probate matters and case law interpreting those changes.[22] In English, the Texas Supreme Court
recognized that the obvious purpose of the 1973 changes was "to increase
the jurisdiction of such courts in 'matters incident to an estate' so that a
decedent's estate could be more efficiently settled in one proceeding." [23] Subsequently, the legislature added section
5A to the code, further expanding statutory county court jurisdiction to
matters including, "but not limited to, all claims by or against an estate
. . , and generally all matters relating to the settlement, partition, and distribution
of estates. . . ."[24] A probate court's jurisdiction has been
greatly expanded since Carter.
“County Court at Law No. 4 in Hidalgo County, a statutory
county court, appointed Stover independent executrix of Reed's estate pursuant
to section 145, and administered the probate proceeding.[25] Columbia filed an authenticated claim in the
probate court. Stover filed a motion in the court to bar Columbia's claim, a
claim Stover believed to be barred because it did not attach to the estate or,
alternately, because it was untimely filed. Columbia's claim was against the
estate. The claim necessarily involved the assets of the estate. The outcome
would have a direct bearing on the settlement, partition, and distribution of
the estate. Accordingly, we conclude Stover's motion involved matters
"incident to the estate," and the probate court had jurisdiction to
hear Stover's motion. The probate court's order of September 24, 1997, granting
Stover's motion to bar Columbia's claim is not void for lack of jurisdiction.
“The final order barring Columbia's claim was appealable to
this Court.[26] [27] Because no direct appeal of the September
24, 1997, probate order was taken by Columbia, it cannot now attack the order
collaterally.[28]
“Accordingly, we hold there was a prior final judgment on
the merits by a court of competent jurisdiction. Stover established the first
element of res judicata, the only element about which Columbia complains.
Therefore, the summary judgment is sustainable on that ground.
*
* * * *
Case #2 Garza
v. Rodriguez
January
26, 2000 18 S.W.3d 694 (TexApp - San Antonio 2000)
For those who think that
Texas title passes by a will, and not by an order of a probate court, Garza is
very interesting indeed. Garza addresses a devise of real estate in fee simple
subject to a springing executory interest that didn’t spring because an
unexplained constitutional county court order of final probate settling,
approving, and closing an estate granted fee simple absolute title and did not
account for the springing executory interest expressly provided in the will.
Garza does not discuss whether the issue was plead, litigated, considered by
the county court prior to the probate court order or whether the constitutional
county court had proper jurisdiction over the parties or subject matter. The court does not discuss the possibility
that the order was a superfluous and erroneous attempt to recite the will
provisions by the person who drafted the order who was clueless about a fee simple
subject to a springing executory interest.
It seems that the court had enough on its mind without those
considerations.
“Appellants appeal from a dismissal order from the 229th
District Court of Starr County, dismissing their suit to construe a previously
probated will for want of jurisdiction. Because a court is not permitted to
interfere with the final judgment of another court of equal jurisdiction, we
affirm the trial court's order of dismissal.
“Appellants filed a declaratory action in the 229th District
Court in Starr County to construe the previously probated will of their aunt
Maria Lopez de Pena (hereinafter "Pena"), asserting that they are the
legal owners of certain real property bequeathed in Pena's will. The property
at issue consists of nine tracts of land, which have mineral interests. In
their action, appellants also sought partition of the land to which they claim
entitlement.
“Pena's will, executed on January 22, 1943, provided in
relevant part:
It is my will that all the rest and residue of
my property, both real and personal and of any nature and kind whatsoever, and
wherever situated of which I shall die seized and possessed, shall pass to and
be vested in fee simple title to my nephew, Santiago Rodriguez, Jr., son of my
sister Eusebia Lopez de Rodriguez, to be owned and enjoyed by him with God's
and my blessings forever. . . . But should he die without lawful issue of his
body, then, and in that event, it is my will and wish that all of my aforesaid
property shall pass to and be vested in fee simple in my sister, the said
Eusebia Lopez de Rodriguez, her heirs and their descendants per stirpes.
“By this provision, Pena granted to Santiago a fee simple
interest in her real property subject to a shifting executory interest in favor
of Santiago's mother, Eusebia Lopez de Rodriguez, her heirs and their
descendants per stirpes.
Pena died on June 1, 1956; her will was
presented for probate the following week in the constitutional county court of
Starr County. On July 29, 1957[29] [30] an order of final
probate settling, approving, and closing Pena's estate was entered in the
county court.[31] With respect to Santiago's interest, it
provided that:
[T]he remainder of the lands owned by Maria Lopez de Pena,
including all funds in the bank, as well as all real estate and personal
property were bequeathed and given to Santiago Rodriguez, Jr. . . . .[32]
“The final probate order thus granted fee simple absolute
title to the remainder of Pena's estate to Santiago; the final probate order
did not account for the springing executory interest expressly stated in the
will.[33]
“On October 19, 1984,[34] Santiago died
intestate, survived by his wife, Olivia Olivarez Rodriguez, and one adopted
son, Gabriel Rodriguez. Because Santiago died without lawful issue, appellants,
Eusebia Lopez de Rodriguez's heirs, concluded that they became the legal owners
of the real property Pena conditionally devised to Santiago through the 1943
will.
“On July 8, 1986, appellants filed a declaratory action in
the 229th district court of Starr County, asking the court to construe the will
of Pena to declare them the legal and beneficial owners of Pena's property due
to the springing executory interest, which they claim divested Santiago of his
ownership. Appellants also requested the district court to partition the
subject property among them. At the time of this filing, no probate matter
concerning either Pena's estate or Santiago's estate was pending. On August 4,
1986, appellees filed a declaration of heirship in the county court at law[35] of Starr County. That
same day, appellees also filed in the district court their original answer and
a motion to dismiss for lack of jurisdiction, which the trial court later
granted. . . .
“Appellants argue that the district court erred in
dismissing their suit to construe Pena's will because the district court has
concurrent jurisdiction with the county court over matters "incident to an
estate" when, as here, a probate matter is not pending in the county
court. Construction of a will and issues of title are matters incident to an
estate; thus, the district court had jurisdiction over the matters because the
county court's probate jurisdiction had not been invoked.[36] Appellants further
assert that the district court had jurisdiction to act because their pleadings
requested the imposition of a constructive trust.[37]
“Appellees counter that the trial court properly dismissed
the underlying action because in counties such as Starr County, where there is
a county court at law exercising the jurisdiction of a probate court, all
probate matters shall be filed and heard in such courts and the constitutional
county court, rather than in the district courts.[38] Appellees note that in
section 5(c) counties, district court jurisdiction may be invoked by a proper
transfer or by pleadings that clearly set out a cause of action and request for
relief which the county court at law exercising the jurisdiction of a probate
court cannot provide.[39] Appellees note that the instant case does
not involve a transfer situation; thus, they contend the district court's jurisdiction
could be invoked only if appellants sought relief which the probate court could
not grant. Appellees further argue that because the county court[40] previously acquired jurisdiction over Pena's
estate, the district court would be without authority to consider an attack on
the county court's probate order.
“County courts have the general jurisdiction of a probate
court.[41] In most counties in Texas, the
constitutional county courts ("county courts") act as the probate
court.[42] As a probate court, county
courts are empowered to: [P]robate wills, grant letters testamentary and of
administration, settle accounts of personal representatives, and transact all
business appertaining to estates subject to administration or guardianship,
including the settlement, partition, and distribution of such estates.[43] Historically, a probate court did not have
the power to construe provisions of a will or decide matters of title because
such matters were considered outside the purview of probate matters; they were
considered matters incident to an estate.[44] The construction of a will or issues of
title were thus general civil matters within the jurisdictional reach of the
district courts.[45] [46]
“In 1973,[47] the county court's
probate jurisdiction was expanded when the Legislature undertook a two-step
reform of probate jurisdiction.[48] First, it proposed an amendment to article
5, section 8 of the constitution authorizing a statutory revision of probate
jurisdiction.[49] [50] Second, to carry out
the proposed constitutional mandate, it amended section 5 of the Probate Code.
As amended, section 5 expanded the jurisdiction of the county court in probate
matters to allow it the power to hear all matters incident to an estate,
including, but not limited to, an action to construe a will.[51] Section 5's clause "matter incident to
an estate," however, will not create jurisdiction for the county court in
the absence of a pending probate matter.[52] Stated differently, before a matter can be
regarded as incident to an estate over which the county court acting as a
probate court would have jurisdiction, a probate proceeding must actually be
pending.[53] As explained by the Supreme Court, a court
empowered with probate jurisdiction may only exercise its probate jurisdiction
over matters incident to an estate when a probate matter proceeding related to
such matter is already pending. Bailey v. Cherokee County Appraisal Dist.[54] [55]
“As noted, at the time appellants filed suit in the district
court, no probate matter concerning either Pena's estate or Santiago's estate
was pending. Appellants thus conclude that because a probate matter was not
pending when appellants filed suit, and because appellants' suit concerns
matters traditionally outside the scope of a probate court's jurisdiction, the
district court had jurisdiction over the suit to construe the provisions of
Pena's will. In support of this argument, appellants rely primarily upon
Crawford v. Williams[56]
“In Crawford, a will was admitted to probate in
constitutional county court in 1968.[57] In 1986, several heirs brought suit in the
district court seeking a declaration that the will was null and void due to
fraud, a partition of certain real property, an accounting of rents, royalties,
and waste on the real property, and a distribution of the real property through
the laws of intestacy.[58] The district court set aside the will,
determined heirship, partitioned the real property, and ordered an accounting.[59] In sustaining a challenge that the district
court lacked jurisdiction over the proceeding, the Corpus Christi Court of
Appeals determined that because the county court had already acquired
jurisdiction over the estate, and because the later action sought to set aside
an already probated will, the district court, under the doctrine of
noninterference, was prevented from exercising jurisdiction over the matter.[60] The fact that the
action was a direct attack on the county court's order admitting the will to
probate was compelling to the court.[61] The court also seemed to place much
importance on the fact that under amended section 5 of the Probate Code, the
county court would have the jurisdiction to hear the will contest.[62]
“It is not clear from the facts of Crawford whether a final
order of probate, which would close the estate and end the county court's
jurisdiction over the proceeding, was entered. Appellants assume that the
estate was not closed, and therefore argue that Crawford is consistent with the
general rule that once the probate court has acquired jurisdiction over a
probate matter, the district court lacks the power to act. They argue that
since a probate matter was not pending in the instant case, the district court
had jurisdiction to act.
“At oral argument, appellants argued that Gordy v.
Alexander,[63] a case in which the
Amarillo Court of Appeals determined that section 5 of the Probate Code did not
divest the district court of jurisdiction to act in a suit to impose a
constructive trust on assets of an estate where the will was previously
probated, required reversal in the instant case.[64]
“We disagree with appellants' argument and their reliance
upon Crawford and Gordy in the instant case. In fact, our reading of Crawford
requires a result different from the one sought by appellants. Our disagreement
with appellants’ argument lies not in their general explanation of Texas
probate jurisdiction, which is, ‘to say the least, [a] somewhat complex
[scheme].’ [65] We agree that under the current statutory
scheme of probate jurisdiction, a district court can exercise jurisdiction over
a matter incident to an estate where no probate court has otherwise acquired
jurisdiction over the estate. This is so because section 5 of the Probate Code
does not grant the probate court exclusive jurisdiction over matters incident
to an estate.[66] This jurisdictional scheme, however, would
not allow a court to interfere with the final judgment of another court of
equal jurisdiction. Our disagreement with appellants’ argument concerns this
general principle of non-interference.[67]
“By this lawsuit, appellants seek a declaration that they
are the legal and beneficial owners of Pena's property due to the springing
executory interest contained in Pena's will. As previously noted, however, that
future interest was not accounted for in the 1957 final probate order settling,
approving, and closing Pena's estate.[68] The final order, whether by mistake or
design, unambiguously granted[69] Santiago fee simple absolute title to the
remainder of Pena's estate. That order was not challenged.[70] The current action challenges the 1957 final
probate order to the extent that appellants seek a construction of Pena's will
that is contrary to what was previously determined, correctly or incorrectly,
by the probate court. A court is not permitted to interfere with the final
judgment of another court of equal jurisdiction.[71] An action to undo an incorrect former
judgment must be brought in the court rendering the judgment or in a higher
court.[72] Because the instant action seeks to undo the
prior probate order, the district court properly determined it did not have
jurisdiction.[73]
*
* * * *
Case #3 Enax
v. Noack
January
31, 2000 12 S.W.3d 609 (TexApp Houston[first dist.] 2000)
Is that enough fun with
trial court jurisdiction? No such luck. We turn to Enax, in which the court of appeals finds subject matter
jurisdiction of a county court at law, in a guardianship, to impose a
constructive trust. Transfer from a county court at law to a district court is
upheld. A district court judgment based on a county court at law jury verdict
is upheld. The court of appeals believes that the legislature increased the
jurisdiction of guardianship courts while specifically intending to make no
such change. Probate litigation is full
of surprises.
“The primary issues on appeal are (1) whether the county
court at law may impose a constructive trust in a guardianship proceeding and
(2) whether the county court at law may transfer the case to the district court
for rendition of judgment when the ward dies after the jury reaches its
verdict, but before a final judgment is signed. We reverse in part and affirm
in part.
“Lloyd Enax is Hilda Enax's son. Hilda developed Alzheimer's
disease in the late 1980s, and Lloyd assumed care of Hilda when she became a
widow in 1989. In October 1990, Lloyd sold Hilda's home in Spring and bought a
new home for her in Brenham, near his home. Hilda lived in the Brenham home
until April 1996, when she was moved to a nursing home. Lloyd then sold the
Brenham home. During this time, Lloyd allowed his property to become commingled
with Hilda's property.
“In February 1996, Lloyd applied and was appointed guardian
of Hilda's person and estate. In August 1996, Hilda's granddaughter, Lori
Noack-May, filed an application to revoke Lloyd's guardianship and to be
appointed as the successor guardian. On August 27, 1996, the county court at
law removed Lloyd as guardian, appointed Lori as successor guardian,
temporarily restrained Lloyd from spending any proceeds from the sale of
Hilda's house, and froze Lloyd's bank account. The county court at law later
issued a temporary injunction incorporating the terms of the temporary
restraining order. In September 1996, Lori, as successor guardian, sued Lloyd
to recover Hilda's property under theories of negligence, fraud, negligent
misrepresentation, and breach of fiduciary duty. Lori also asked the court to
impose a constructive and resulting trust.
“After a question arose concerning a conflict of interest,
the county court at law appointed Hilda's daughter, Sheila Enax, as guardian,
and Sheila became the plaintiff in the suit against Lloyd. Before the case came
to trial, the county court at law ordered Lloyd to turn all of Hilda's property
over to Sheila and to make a final accounting of his administration as
guardian. Lloyd never complied.
“The case was tried to a jury in February 1997. The jury
returned a verdict for Sheila, awarding $191,989.65 in actual damages and
$216,989.65 in exemplary damages and imposing a constructive trust on Lloyd for
$141,989.65. On February 26, 1997, the county court at law rendered judgment on
the verdict. In March 1997, the county court at law dissolved the temporary
injunction.
“Lloyd timely filed a motion for new trial and a motion to
modify the judgment. On May 13, 1997, the county court at law signed an amended
interlocutory judgment, which in part reduced the actual damages by $5,000.00.
The judgment was made interlocutory to allow an appraisal of real estate owned
by Lloyd that would be subject to the constructive trust.
“Hilda died on June 21, 1997, before the county court at law
signed an amended final judgment. In August 1997, Verna Lois Noack was
appointed as the executrix of Hilda's estate, and the county court at law
allowed her to substitute as the plaintiff. On October 9, 1997, the county
court at law transferred the case[74] to the district court with the district
court's permission. On December 30, 1997, the district court signed a final
amended judgment, awarding $186,989.65 in actual damages and $216,989.65 in
exemplary damages and imposing a constructive trust on Lloyd for $141,989.65.
“. . . Lloyd brings an issue of first impression, contending
the county court at law lacked subject-matter jurisdiction to impose a
constructive trust in a guardianship proceeding. 1[75] Relying on cases holding that only statutory
probate courts and district courts may impose constructive trusts in probate
proceedings, Lloyd argues that the county court at law had no authority to
impose a constructive trust in a guardianship proceeding. We disagree.
“Both Lloyd and Verna agree that in probate proceedings the
constitutional county courts and the statutory county courts at law have no
authority to employ the equitable remedy of imposing a constructive trust.[76] The rationale behind these decisions is
based on an interpretation of Probate Code section 5A:
Constitutional County Court and Statutory County
Court at Law
§ 5A. Matters Appertaining and Incident to an Estate and
Other Probate Court Jurisdiction
(a) In proceedings in the constitutional county courts and
statutory county courts at law, the phrases "appertaining to estates"
and "incident to an estate" in this Code include
the probate of wills,
the issuance of letters testamentary and of administration,
the determination of heirship,
and also include, but are not limited to,
all claims by or against an estate,
all actions for trial of title to land incident to an estate
and for the enforcement of liens thereon incident to an estate,
all actions for trial of the right of property incident to
an estate,
and actions to construe wills, and
generally all matters relating to the settlement, partition,
and distribution of estates of deceased persons.
Statutory Probate Court and District Court
§ 5A. Matters Appertaining and Incident to an Estate and
Other Probate Court Jurisdiction
(b) In proceedings in the statutory probate courts and
districts courts, the phrases "appertaining to estates" and
"incident to an estate" in this Code include
the probate of wills,
the issuance of letters testamentary and of administration,
and
the determination of heirship,
and also include, but are not limited to,
all claims by or against an estate,
all actions for trial of title to land and for the
enforcement of liens thereon,
all actions for trial of the right of property,
all actions to construe wills,
the interpretation and administration of testamentary trusts
and the applying of constructive trusts, and
generally all matters relating to the settlement, partition,
and distribution of estates of deceased persons.
“Because
the legislature has given specific authority to the statutory probate courts
and district courts over "all actions to construe wills, the
interpretation and administration of testamentary trusts and the applying of
constructive trusts," the above cited cases interpreted this specific grant
of authority to deny the constitutional county courts and statutory county
courts at law the authority to impose constructive trusts.[77] 2 We do not agree with
this interpretation of §5A. [78]
“Before 1993, section 5A applied to both probate and
guardianship proceedings.[79] In 1993, the legislature rewrote the
guardianship laws and separated them into a new chapter XIII of the Probate
Code.[80] As a part of the 1993 revision, guardianship
provisions have been removed from section 5A and ‘mirrored’ in a new section
607:
CONSTITUTIONAL
COUNTY COURT AND STATUTORY
COUNTY
COURT AT LAW PROVISIONS
Probate
§ 5A. Matters Appertaining and Incident to an Estate and
Other Probate Court Jurisdiction
(a) In proceedings in the constitutional county courts and
statutory county courts at law, the phrases "appertaining to estates"
and "incident to an estate" in this Code include
the probate of wills,
the issuance of letters testamentary and of administration,
the determination of heirship, and
also include, but are not limited to,
all claims by or against an estate,
all actions for trial of title to land incident to an estate
and for the enforcement of liens thereon incident to an estate,
all actions for trial of the right of property incident to
an estate, and actions to construe wills, and
generally all matters relating to the settlement, partition,
and distribution of estates of deceased persons.
Guardianship
§
607. Matters Appertaining and Incident to an Estate
(a)
In a proceeding in a constitutional county court or a statutory county court at
law, the phrases "appertaining to estates" and "incident to an
estate" in this chapter include
the appointment of guardians,
the issuance of letters of guardianship,
a claim by or against a guardianship estate,
all actions for trial of title to land incident
to a guardianship estate and for the enforcement of liens incident to a
guardianship estate,
all actions for trial of the right of property
incident to a guardianship estate, and
generally all matters relating to the
settlement, partition, and distribution of a guardianship estate.
STATUTORY
PROBATE COURT AND DISTRICT COURT PROVISIONS
Probate
§
5A. Matters Appertaining and Incident to an Estate and Other Probate Court
Jurisdiction
(b)
In proceedings in the statutory probate courts and districts courts, the
phrases "appertaining to estates" and "incident to an
estate" in this Code include
the probate of wills,
the issuance of letters testamentary and of
administration, and
the determination of heirship,
and also include, but are not limited to,
all claims by or against an estate,
all actions for trial of title to land and for
the enforcement of liens thereon,
all actions for trial of the right of property,
all actions to construe wills,
the interpretation and administration of
testamentary trusts and the applying of constructive trusts,
and generally
all matters relating to the settlement,
partition, and distribution of estates of deceased persons.
Guardianship
§
607. Matters Appertaining and Incident to an Estate
(b)
In a proceeding in a statutory probate court or district court, the phrases
"appertaining to estates" and "incident to an estate" in
this chapter include
the appointment of guardians,
the issuance of letters of guardianship,
all claims by or against a guardianship estate,
all actions for trial of title to land and for
the enforcement of liens on the land,
all actions for trial of the right of property,
And generally
all matters relating to the settlement,
partition, and distribution of a guardianship estate. 3[81]
“We have uncovered no indication that the legislature in
1993 intended to give the constitutional county courts and county courts at law
the new power to impose constructive trusts in guardianship proceedings when
this power was previously denied to them. Legislative history indicates this by
showing that new section 607 was supposed to be the same as current law except
for the language about wills.[82] The plain language of the statute, however,
controls, and there is no longer language in the Probate Code that indicates only
the district court and statutory probate court may apply constructive trusts in
guardianship proceedings. We note that county courts at law are generally
authorized to exercise equitable powers.[83]
“Accordingly, we conclude the county court at law did have
the authority to impose a constructive trust in this guardianship proceeding. .
. .
“. . . Lloyd contends the county court at law's transfer of
the case to the district court pursuant to Government Code section 74.121(b)(1)
was invalid.[84] 4[85] Both parties agree (1) that the county court
at law transferred the case because Hilda died after the jury reached a verdict
against Lloyd, but before a final judgment was rendered and (2) that, due to
Hilda's death, the case changed[86] from a guardianship proceeding to a probate
proceeding and thus the statutory county court at law no longer had the
authority to impose a constructive trust.
“The majority of Lloyd's argument is that the statutory
county court at law never had the authority to impose a constructive trust and
that this lack of authority could not be cured by transferring the case to the
district court. We have rejected the basis for this argument. . . . Lloyd's remaining argument[87] is that the district
court could not render judgment in a case in which the court did not hear any
of the evidence, citing our opinion in W.C. Banks, Inc. v. Team, Inc.[88] We disagree with Lloyd's interpretation of
W.C. Banks.
“In W.C. Banks, a visiting judge conducted a bench trial.[89] The visiting judge made a docket entry indicating
a judgment for the plaintiff, but neither made findings of fact or formally
rendered judgment for the plaintiff.[90] The regular judge later
rendered judgment for the plaintiff without hearing any of the evidence. We
reversed, holding that Texas Rule of Civil Procedure 330(g) does not authorize
a district judge who heard none of the case to render judgment in a bench
trial.[91]
“In this case, the jury reached a verdict before the case
was transferred. The concerns addressed in W.C. Banks are inapplicable.
Accordingly, we hold that Government Code section 74.121(b)(1) authorized the
country court at law to transfer the case to the district court.
*
* * * *
Case #4 Schuld
v Dembrinski
March
17, 2000, 12 S.W.3d 485 (TexApp - Dallas 2000)
In Schuld, the county
court at law had dismissed litigation between siblings for lack of
jurisdiction. The Dallas Court of
Appeals vacated the order dismissing, and reinstated. The court of appeals
found jurisdiction in the constitutional County Court. The basis for jurisdiction is convoluted and
weird. The court of appeals held that:
•Jurisdiction was not
exclusively in the probate court.
•The District Court had
jurisdiction.
•Therefore the County
Court at Law had jurisdiction.
•Whether the Probate
Court had jurisdiction was irrelevant.
•Even if Probate Court
had jurisdiction, it was not exclusive.
The result of Schuld is that the parties, now
older and more experienced, return to the beginning with the case back where it
started. What about "judicial
economy?"
“In this dispute, Trellice Lynn Schuld appeals the trial
court's order dismissing her suit against her siblings, Julius Dembrinski, Jr.,
Samantha Louise Henson, and William Dale Pete, to partition real property in
Mesquite. In a single point of error, Schuld contends the trial court erred in
sustaining Henson's plea that the statutory probate court had exclusive
jurisdiction over the matter. For the reasons set forth below, we sustain the
point of error, vacate the trial court's dismissal order, and order the case
reinstated.
“In August 1998, Schuld sued appellees in county court at
law to partition a house and lot. In her petition, she alleged that she and
appellees inherited interests in the property of their mother, De Anna Rae
Pete, who died intestate in 1975. Schuld alleged that no administration or
probate proceedings had been initiated since her mother's death, none were
necessary or contemplated, and no debts were owed by her mother. At the time of
her death, De Anna Rae Pete was married to Omar Gilbert Pete, and five children
were born to or adopted by her.
“Schuld alleged the value of the property to be $60,000 as
well as the specific interest each sibling had in the property. Schuld asked
the trial court to (1) determine the share of each of the joint owners, (2)
determine the property is not susceptible to partition and order it sold for
its market value, and (3) distribute the proceeds among the parties, after
paying her expenses.
“Henson filed an answer generally denying the allegations
and raising the affirmative defenses of waiver, collateral estoppel, homestead,
laches, and statute of limitations. Moreover, Henson filed a plea to the
jurisdiction in which she asserted that the statutory probate court had
exclusive jurisdiction over the matter for two reasons. First, she contended
that Schuld's suit "is brought to determine heirship to property inherited
through De Anna Pete . . . ." Second, she asserted the proceeding "is
affected by the outcome of the probate of the will of [De Anna Pete's] husband,
Omar Pete."
“In an affidavit attached to the plea, Henson asserted that
she inherited the house from her father, Omar Pete, after his death in 1994.
Attached to the plea was a copy of Omar Pete's will; in the will, Omar Pete
devised the property to Henson.[92] Henson also attached a September 16, 1996
order from the Dallas County Probate Court No. 1 admitting Omar Pete's will to
probate as a muniment of title.
“The trial court ultimately sustained Henson's plea and
dismissed Schuld's petition. Schuld timely appealed. The issue before this
Court is whether the statutory probate court had exclusive jurisdiction over
this matter. We conclude it did not.
“Section 25.0003(e) of the Texas Government Code provides
that, in a county that has a statutory probate court, a statutory probate court
is the only county court created by statute with probate jurisdiction.[93] A statutory probate court in Dallas County
has the general jurisdiction of a probate court as provided in section 25.0021.[94] Section 25.0021 provides that a probate
court has the general jurisdiction as provided in the Texas Probate Code.[95]
“Pursuant to section 5 of the probate code, statutory
probate courts have original probate jurisdiction over ‘all applications,
petitions and motions regarding probate and administrations.’[96] Further, all courts exercising original
probate jurisdiction ‘shall have the power to hear all matters incident to an
estate.’ [97] Matters incident to an
estate include the determination of heirship and all actions for trial of title
to land.[98]
“However, a court empowered with probate jurisdiction may
only exercise its probate jurisdiction over matters incident to an estate when
a probate proceeding relating to such matter is already pending in that court.[99] In other words, the pendency of a probate
proceeding is a requisite for a court's exercise of jurisdiction over matters
related to it.[100] Where the record does not reveal that a
probate proceeding was taking place or was pending when the instant suit was
filed, section 5 of the probate code dealing with matters incident to an estate
is not triggered.[101]
“This case involves two estates: (1) the estate of De Anna
Rae Pete, who died intestate in 1975, and (2) the estate of Omar Gilbert Pete,
who died leaving a will in 1994. With respect to De Anna Rae Pete, Henson
argued to the trial court that Schuld's petition was an heirship proceeding
over which the probate court had exclusive jurisdiction. Schuld counters on
appeal that there is no pending probate matter for which an heirship proceeding
is "incident to" and the probate court therefore does not have
exclusive jurisdiction. We need not decide whether the statutory probate court
had exclusive jurisdiction over an heirship determination as either (1) a
matter incident to an estate or (2) independent of any pending probate
proceeding because we conclude this is not an heirship proceeding.
“A plea to the jurisdiction contests the trial court's
authority to determine the subject matter of the cause of action.[102] In considering a plea to the jurisdiction,
the trial court must look solely to the allegations in the plaintiff's
petition.[103] Similarly, on appeal from an order granting
a plea to the jurisdiction, the appellate court will consider the issue de
novo, basing its decision solely on the allegations in the plaintiff's
petition.[104] The plaintiff bears the
burden of alleging facts affirmatively showing that the trial court has
subject- matter jurisdiction.[105] We take allegations in the pleadings as true
and construe them in favor of the pleader.[106]
“Schuld's petition alleged the specific owners of the
property, each owner's interest in the property, and the estimated value of the
property. 1[107] Because the house and lot could not be
partitioned in kind, Schuld asked that it be sold and the proceeds distributed.
She did not seek to probate or administer any decedent's estate, matters which
certainly would fall within the expertise of a statutory probate court's
exclusive jurisdiction.[108] Nor did she ask the trial court to determine
her mother's heirs. To the contrary, her petition named the heirs and sought to
establish each of the co-owners' interest in the property. The fact that the
co-owners of the house and lot derived their interests by the laws of descent
and distribution or by virtue of a will does not convert this partition suit
into a determination of heirship over which the statutory probate court might
have exclusive jurisdiction. 2[109] [110]
“With respect to Omar Gilbert Pete, his will was admitted to
probate as muniment of title on September 16, 1996 in the Dallas County Probate
Court No. 1. The order provided as follows: "[T]here is no necessity for
the administration of decedent's estate and the probating of decedent's Will as
a Muniment of Title is therefore proper." Consequently, no probate
proceeding with respect to Omar Gilbert Pete was pending at the time Schuld
brought her suit.[111] Thus, the statutory probate court did not
have exclusive jurisdiction over any matter incident to his estate.
“Having concluded that the statutory probate court did not
have exclusive jurisdiction over the subject matter of Schuld's suit, we next
address whether the county court at law had jurisdiction. Chapter 23 of the
Texas Property Code governs partitions. Section 23.002 provides:
(a) A joint owner or claimant of real property
or an interest in real property may bring an action to partition the property
or interest in a district court of a county in which any part of the property
is located.
“Chapter
25 of the government code sets out the jurisdiction of the county courts at
law. Section 25.0003(c) provides:
c) In addition to other jurisdiction provided by law, a
statutory county court exercising civil jurisdiction concurrent with the
constitutional jurisdiction of the county court has concurrent jurisdiction
with the district court in:
(1) civil cases in which the matter in
controversy exceeds $500 but does not exceed $100,000, excluding interest,
statutory or punitive damages and penalties, and attorney's fees and costs, as
alleged on the face of the petition . . . .
“Section 25.0592, which deals specifically with the
jurisdictional authority of the Dallas County courts at law, provides:
(a) In addition to the jurisdiction provided by
Section 25.0003 and other law, a county court at law in Dallas County has
concurrent jurisdiction with the district court in civil cases regardless of
the amount in controversy.
“Because the district court has jurisdiction over partition
suits, and because the Dallas County courts at law have concurrent jurisdiction
with the district courts in civil matters regardless of the amount in
controversy, we conclude the county court at law has jurisdiction over this
partition suit.[112]
“We conclude the trial court erred in dismissing this suit
for want of jurisdiction and therefore sustain the sole point of error. We
vacate the trial court's order of dismissal and order the case reinstated on
the trial court's docket for further proceedings.”
*
* * * *
Case #5 Jansen
v. Fitzpatrick
March
2, 2000 14 S.W.3d 426 (TexApp Houston [14th district] 2000)
If you wonder if all of
the parties might die before the Texas courts decide whether they have probate
jurisdiction, wonder no more - they
died.
In Jansen, the trial
court dismissed for lack of jurisdiction.
The 14th Court of Appeals held that the trial court had jurisdiction,
reversed, and remanded. Before the suit was filed, one plaintiff had died, and
before the trial court dismissed, the
other three plaintiffs died. The plaintiffs have been replaced and the case
starts over.
The underlying dispute
is interesting, but the appeal is only of dismissal for lack of jurisdiction.
Maybe we will see the underlying case on appeal again after trial.
Jansen is a remarkable
case on issues of jurisdiction, standing, venue, and substitution of parties
for deceased parties. Given the length of probate litigation, the law of the
substitution for deceased parties and the proof required to prove standing is a
useful thing to know. There a lot of names
in this case. The names do matter.
“This is an appeal from the trial court's dismissal of a
declaratory judgment action for lack of jurisdiction. We reverse and remand
this case to the trial court.
“In January 1993, Geraldine, then 80 years old, transferred
by deed real property she owned in Fort Bend County, Texas, to her niece,
Virginia. Geraldine died approximately two months later.
“At the time of her death, Geraldine was a widow with no
children; however, she had a host of other relatives. She left a will naming
the following people as her residuary beneficiaries: her late husband's
daughter, Frances, and her sisters, Nellie, Helen, Edith, Lois, and Ruby. The
residuary beneficiaries would have received shares in the Fort Bend County real
property had Geraldine not made a deathbed conveyance of it to Virginia.
“Geraldine's will specified that the share of any named
beneficiary who failed to survive her would go to the descendants of such
beneficiary per stirpes. . . . Ruby predeceased Geraldine and was survived by
her daughter, appellant Dorothy.
“Nellie, Helen, Lois, and Dorothy filed suit against
Virginia in the 268th District Court of Fort Bend County, Texas. They sought a
judicial declaration that (1) the deed conveying the real property to Virginia
was of no force and effect and (2) the property belonged to Geraldine's estate.
Neither Frances (Geraldine's step-daughter) nor Edith (Virginia's mother)
joined the suit. While the litigation was pending, Nellie, Helen, and Lois all
died, and the following new plaintiffs were substituted:
Jean, Marian, and Betty, as surviving
descendants, were substituted for Nellie, their mother;
John, George, and Rolf, as surviving
descendants, were substituted for Helen, their mother; and
Denise and Dennis, through a trust established
for their benefit, were substituted as surviving descendants for Lois, their
grandmother.
“Therefore, all of the appellants, except Dorothy, claim to
be the descendants of residuary beneficiaries under Geraldine's will.
“The substituted plaintiffs/appellants filed an amended
petition in which they sought to have the deed Geraldine gave to Virginia set
aside on the grounds that Geraldine was incompetent at the time she signed the
deed and that she had executed it only as a result of Virginia's undue
influence. Virginia had been the attorney in fact for Geraldine at the time of
the conveyance and was also the independent executrix of Geraldine's estate.
The appellants claimed that, as a fiduciary, Virginia had the burden of showing
that Geraldine's conveyance of the property to her was fair and reasonable. The
appellants sought an order from the trial court canceling the deed to Virginia
so that ownership of the Fort Bend County property would revert to Geraldine's
estate and pass to them under Geraldine's will. By that time, Geraldine's will
had been admitted to probate in the County Court at Law Number One of Fort Bend
County.
“Virginia alleged that because Nellie, Helen, Lois, and Ruby
had died, the appellants were required by law to show their interest "by a
determination of heirship or other judicial proceeding in the county of the
residence of their deceased ascendent in order to authenticate their claim in
this matter." In response to this allegation, the appellants filed a First
Supplemental Petition which stated that: "Helen L. Jansen died;" her
unprobated will "gave all of her property in equal shares to her three
sons;" and "[i]n an intestate proceeding, . . . [Helen's] property at
the time of her death would go to her three sons." The First Supplemental
Petition also stated, "[t]he last Will of Helen Jansen has not been
probated because at her death she owned no property, except personal effects,
and this contingent interest in a lawsuit."
“Virginia filed a . . . Motion in Limine, claiming that the
appellants lacked standing because they were not "interested parties"
under section 3(r) of the Texas Probate Code. To support her standing
challenge, Virginia argued that the appellants had not established that they
are the successors in interest to the residuary beneficiaries named in
Geraldine's will by the probating of the deceased's will or by the
determination of heirship or other intestate succession proceeding. Virginia
moved the trial court to dismiss the appellants' action in its entirety for
lack of jurisdiction. The trial court found that the appellants are not
interested parties in decedent's estate and therefore lack standing to
prosecute this lawsuit. 1 [113]
“At the outset, we are compelled to point out that a motion
in Limine is not the proper procedural tool[114] to challenge a party's standing to sue or a
court's jurisdiction to hear a claim in a suit seeking to set aside a deed.2 [115] A plea to the jurisdiction is the proper
procedural tool to challenge a suit brought in one court when another court has
continuing and exclusive jurisdiction.[116] The goal of a plea to the jurisdiction is to
have the trial court dismiss the cause of action.[117] Inasmuch as Virginia’s ‘Motion in Limine’
challenged the court's jurisdiction and sought dismissal of the appellants'
claims, we will treat it as a plea to the jurisdiction.
“To establish subject matter jurisdiction, the pleader must
allege facts that affirmatively demonstrate the court's jurisdiction to hear
the case.[118] When a case is dismissed for want of
jurisdiction, the appellate court must accept as true all of the factual
allegations in the plaintiff's pleadings.[119] In reviewing a trial court's decision to
dismiss for lack of jurisdiction, we construe the petition in favor of the
party bringing the claim.[120] Because the concept of "standing"
is an element of subject matter jurisdiction, it is generally reviewed under
the same standard as subject matter jurisdiction.[121]
“When the lack of jurisdiction can be determined by the
allegations in the plaintiff's petition, there is no need for the court to
receive evidence.[122] Conversely, when the lack of jurisdiction is
not apparent from the face of the plaintiff's pleading, the defendant must
prove any assertions of fraudulent allegations of jurisdiction, either by
filing affidavits and discovery products or by calling live witnesses at a
hearing.[123] If the court does not have jurisdiction over
the subject matter of the suit, it must dismiss the case without prejudice.[124] Thus, as a threshold matter, we must
determine whether a lack of jurisdiction is apparent from the face of the
plaintiffs/appellants' pleading. If we cannot conclude that the court lacks
jurisdiction from the face of the pleadings, then we may consider any evidence
of fraudulent allegations the defendant produced.
“If a party judicially admits facts that establish a
plaintiff's standing to bring suit, she is estopped from claiming the plaintiff
has no standing.[125] We have discretion to accept statements made
in the briefs as true.[126] In appellee's brief, Virginia acknowledges
that the appellants "plead that they are successors in interest to the
residuary beneficiaries" of Geraldine's will. By this statement, Virginia
judicially admitted that the appellants pled[127] they were successors in interest to the
residuary beneficiaries. This judicial admission establishes that the
appellants' pleadings contain allegations which, taken as true, demonstrate
that they have standing.
“Notwithstanding Virginia's judicial admission, standing of
at least some of the appellants is also established through the pleadings.
First, we note that, taking the pleadings as true, the district court did not
have to decide if Dorothy is the heir of a residuary beneficiary. Under
Geraldine's will, if a named residuary beneficiary does not survive Geraldine,
the beneficiary's share passes to her descendants, and they are then residuary
beneficiaries.[128] The first amended petition alleges that
Dorothy is a residuary beneficiary because her mother, Ruby, predeceased
Geraldine. It is undisputed that the residuary beneficiaries have standing.
Therefore, as a residuary beneficiary, Dorothy has standing.
“As for the remaining appellants (Jean, Marian, Betty, John,
George, Rolf, Denise, and Dennis), we look first at whether the district court
has subject matter jurisdiction to decide if the appellants are heirs of the
residuary beneficiaries. Then, we determine whether these appellants have
standing, i.e., whether they are heirs of the residuary beneficiaries.
“In a suit to set aside a deed, the district court has
exclusive jurisdiction to hear and determine the matter when the proper
allegations as to capacity to sue are made and proven.[129] The Texas Probate Code
grants exclusive jurisdiction to county courts sitting in probate only when the
controlling issues are the settlement, partition, or distribution of an estate.
3[130] [131] [132] In a non-probate matter, the district court
may assume jurisdiction and determine the heirs of the decedent as long as
there is no probate proceeding pending in the county court.[133] However, for a court to have jurisdiction to
determine heirship, the estate must own real property, or if there is none,
personal property, in that county.[134] The definition of personal property includes
choses in action.[135] A chose in action is a personal right not
reduced to possession, but recoverable by a lawsuit.[136] A right to set aside a deed is a personal
right and therefore a chose in action.[137]
“The pleadings state that there is no probate proceeding for
Helen pending in the county court. The residuary beneficiaries had a right to
bring suit to set aside a deed in Fort Bend County (a chose in action) and
therefore have personal property in Fort Bend County. The pleadings state that,
at the time of her death, Helen had no property except personal effects and an
interest in this lawsuit. Therefore, the district court has general subject
matter jurisdiction under section 48 of the Probate Code to hear and determine
Helen's heirs.
“The pleadings do not address whether probate proceedings
are pending for Lois and Nellie, nor do they indicate whether these residuary
beneficiaries had real property. Therefore, absent Virginia's judicial
admission, we could not find that the trial court had general subject matter
jurisdiction for the claims of their descendants (Jean, Marian, Betty, Denise,
and Dennis).
“Virginia contends that the parties must be domiciled and
have their residence in the county where the suit is brought before a court in
that county can determine heirship in an action to set aside a deed. We assume by
"parties," Virginia is referring to the residuary beneficiaries.[138] Application of such a rule would send the
appellants scurrying to the four corners of the country or beyond to get
determinations of heirship before they could participate in a single proceeding
to set aside a deed. This result would not only frustrate the spirit of the
statutory scheme but would also undermine public policy which encourages
judicial economy[139] and discourages an unnecessary multiplicity
of actions.
“We next consider whether Helen's sons (John, George, and
Rolf) have standing independent of Virginia's judicial admission. Standing
relates to whether a litigant is the proper person to bring an action.[140] When a plaintiff dies while a lawsuit is
still pending, his or her heirs, administrator, or executor may be made
plaintiffs.[141] Heirs must allege that an administration is
neither open nor necessary.[142] Specific words are not
required, but the facts to support these allegations must be found in the
plaintiff's pleadings.[143] While Helen's sons do not expressly allege
that they are "heirs" in the pleadings, we find the following
allegations are sufficient: "Helen L. Jansen died;" her unprobated
will "gave all of her property in equal shares to her three sons;"
and "[i]n an intestate proceeding, . . . [Helen's] property at the time of
her death would go to her three sons." We also find that the allegation
that "[t]he last Will of Helen Jansen has not been probated because at her
death she owned no property, except personal effects, and this contingent
interest in a lawsuit" is sufficient to allege that there is no
administration and no necessity for one. Therefore, taking the allegations in
the pleadings as true, Helen's sons (John, George, and Rolf), as well as
Dorothy, have standing to bring suit against Virginia even in the absence of
Virginia's judicial admission.
“Given that the trial court did not lack jurisdiction from
the face of the appellants' pleadings, it was incumbent upon Virginia, as the
defendant challenging jurisdiction, to assert and prove that the allegations in
the pleadings were fraudulent either by filing affidavits and discovery
products or by calling live witnesses to testify.[144] Virginia neither asserted nor proved that
the allegations of jurisdiction were fraudulent. At the hearing, Virginia did
not put on any evidence or offer any affidavits or other proof to establish her
claim that the court lacked jurisdiction to hear the case. In fact, Virginia's
counsel advised the trial court that Virginia's motion assumed the appellants'
supplemental pleading "to be the truth on its face." Through counsel,
Virginia also advised the trial court that the hearing on the motion involved a
pure question of law and that there was no reason to take any evidence. Because
the pleadings establish jurisdiction and Virginia did not meet her burden of
showing the district court lacked jurisdiction, the trial court erred in
dismissing the suit as to Helen's heirs (John, George, and Rolf) and Dorothy.
“The pleadings sufficiently allege standing for all the
appellants because Virginia judicially admitted that the pleadings contain
facts that give the appellants standing to bring their claims. Additionally,
and independent of Virginia's judicial admission, the face of the pleadings
demonstrate that (a) the trial court had jurisdiction to determine Helen's
heirs, and (b) John, George, Rolf, and Dorothy have standing. Because Virginia
brought forth no evidence to show the allegations in the appellants' pleadings
were false, she failed to establish that the court lacked jurisdiction.
Therefore, it was error for the court to dismiss the suit based on lack of
jurisdiction.
“The judgment of the trial court is reversed and the case is
remanded for further proceedings consistent with this opinion.”
*
* * * *
Cases
#6A&B
Phifer, administrator of the Estate of Bailey v. Nacogdoches County Central
Appraisal District (TexApp Tyler 2000) (“Old Bailey” & “New Bailey”)
Old Bailey
Case #6A Phifer,
administrator of the Estate of Bailey v. Nacogdoches County Central Appraisal
District
April
25, 2000 (TexApp Tyler 2000) (Opinion later withdrawn... see 6B)
Majority
Opinion by Justice Worthen, joined by Justice Hadden Dissenting Opinion by
Chief Justice Murphy
New Bailey
Case #6B Phifer,
administrator of the Estate of Bailey v. Nacogdoches County Central Appraisal
District
October
31, 2000 45 S.W.3d 159 (TexApp - Tyler 2000) (Replaces 6A)
Opinion by
Justice Worthen,
For the true
connoisseurs of Texas probate jurisdiction, Bailey v. Cherokee Co. Appraisal District.[145] is a rich appetizer in the buffet of cases. What could be
more delicious? Perhaps that would be the case of Phifer, administrator of the
Estate of Bailey v. Nacogdoches County Central Appraisal District.[146] Yes, the Bailey
Estate and the tax collectors are at it again.
For those of you who think death and taxes go together, Bailey is
instructive. For those who think that death and taxes are certain, Bailey is
enlightening. We quote the Chief
Justice.
“It appears that for 27 years the Estates have avoided
payment of ad valorem taxes on various properties. These property taxes are
allegedly owed to five county taxing authorities, one of which is the Appellee.
Appellant's counsel has advised that should a reversal be ordered here, the
Estates have no intention of remitting the taxes to the appraisal districts.” Chief Justice Ramey, dissenting in Old
Bailey.
The original opinion was
withdrawn by the court of appeals.[147] It does not
exist. It is void. But, it is interesting, enticing, and
irresistible so we include it! We call
it “Old Bailey.” It was replaced by
“New Bailey.” “New Bailey” is a truly
extraordinary opinion. The Bailey
opinions and the administration of the Bailey Estate are becoming more and more
bizarre.
“In Old Bailey, the
court of appeals reversed the trial court.
On rehearing, in New Bailey, the court of appeals reversed itself. As you read Old Bailey’s discussion about
which proceeding was filed first, note that the Bailey probate administration
began after Bailey’s death in 1973, but this fact is not discussed. Either the
court did not think of it, or the court did not see any significance in the
fact that the 1973 case was the first one filed.
For those who do not
think that void proceedings in courts that lack jurisdiction may become valid
proceedings by gaining jurisdiction after the case is no longer before the
court, Bailey is astounding. Some may
find it curious that the fact that a case is pending in one court is the only
basis for claiming that a court which does not have the case before it obtains
retroactive jurisdiction. If this paragraph doesn't make sense now, after
reading New Bailey, it might.
Even the name of the
Bailey case is strange. Old Bailey and New Bailey involve the Bailey Estate,
but court refers to the party by the name of the former administrator. In Texas, reference to the administrator is
sensible and perhaps essential. But, in
keeping with the creativity of the Bailey tradition, the court opinion is named
after Phifer, the administrator who quit and was replaced by an administrator
who quit and was replaced by the current administrator of the estate. Yes,
there were two after Phifer. Phifer was long gone by the time of New
Bailey. That may merely seem odd if it
wasn’t for the order and mandate (quoted in this footnote[148]) issued by the
court which orders that Phifer, in his capacity as administrator pay the
expenses. How does he do that since he is no no longer the administrator? The court doesn’t say, and perhaps didn’t
think about it. Ah well, the court of appeals had plenty on its mind. Will that
issue will be resolved in another court in an even newer Bailey?
We begin with Old
Bailey. This is the opinion that was
withdrawn. It is void. It is presented
here for educational and entertainment purposes.
Old Bailey
Case #6A Phifer,
administrator of the Estate of Bailey v. Nacogdoches County Central Appraisal
District
April
25, 2000 (TexApp Tyler 2000) (Opinion
later withdrawn... see 6B)
Majority
Opinion by Justice Worthen, joined by Justice Hadden Dissenting Opinion by
Chief Justice Murphy
Majority Opinion by Justice Worthen, joined by Justice
Hadden
“Phifer, Administrator of the Estate of Walter Earl Bailey[149] and Co-Independent Executor[150] of the Estate of Alibe C. Bailey
("Phifer"), appeals from a judgment entered by the District Court of
Nacogdoches County awarding Appraisal District delinquent property taxes and
foreclosure of a tax lien on certain real property in Nacogdoches County
subject to a continuing probate proceeding in the County Court at Law
("probate court”[151] ) in Cherokee County.
We will set aside the district court's judgment and remand with instructions to
defer jurisdiction to the probate court.
“In 1973, W.E. Bailey died intestate in Cherokee County. His
widow, Alibe C. Bailey, began probate proceedings in the probate court[152] in Cherokee County and was named as
administratrix of the estate of W.E. Bailey. At the time of his death, W.E.
Bailey owned real property in the counties of Cherokee, Anderson, Gregg,
Nacogdoches, Rusk and Smith. The estate failed to pay real property taxes on
any of this land during the pendency of the W.E. Bailey estate.
“In 1989, the Appraisal District filed an original petition
in the Nacogdoches County District Court for delinquent taxes and to foreclose
upon the real property located in Nacogdoches County. The administratrix, Alibe
C. Bailey, filed a plea of abatement on behalf of the W.E. Bailey estate. In
1992, Alibe C. Bailey died. In July 1994, the Appraisal District filed a claim
in the Cherokee County probate proceedings for the delinquent taxes owed on the
real property located in Nacogdoches County. In October 1994, following the
rejection of its claim by the estate, the Appraisal District filed suit in the
probate court.
“On August 13, 1997, the probate court entered an
"Order Establishing Procedures for Escrow of Taxes Involving Sales of Real
Estate." This order was agreed upon by the taxing authorities in the five
above-named counties and by Phifer, in both his dual capacities as administrator
of the Estate of W. E. Bailey and Co-Independent Executor of the Estate of
Alibe C. Bailey. The order contained the following paragraph:
. . .‘The escrow fund shall be held by the administrator for
the benefit of the estate and of the creditor taxing units of Smith Count[sic],
Cherokee County, Gregg County, Nacogdoches County, and Anderson County, all of
which taxing units have various disputed claims pending against the estate for
ad valorem taxes; that such funds may not be expended or commingled with other
funds of the estate until further ordered by the Court and with prior notice to
the taxing units through their attorneys of record; and that the liens (if any
are found to exist upon final completion of the tax litigation involving this Estate
and the herein mentioned taxing authorities) held by the taxing units, charged
against the property sold, and securing payment of ad valorem taxes, penalties,
interest and costs, are transferred from the property sold and hereby Ordered
attached to such escrow funds in lieu of the sold property itself; that such
funds in escrow be held solely for the purpose of funding payment of the taxes
on the property and on other properties of the estate upon the ultimate
resolution of the pending tax litigation, but only to the extent that such
taxes are established by judgment or other final Order of the Court; and that
the specific property subject of this Order is sold free and clear of such
liens, save and except the current year tax lien which tax year and amount is
ordered to be prorated between the estate and purchaser unless the purchaser
assumes payment of such current years taxes.’
“Following its agreement to the above-referenced order, the
Appraisal District filed its Second Amended Original Petition in Nacogdoches
County against Phifer in his capacity as Administrator of the Estate of W.E.
Bailey and Co-Independent Executor[153] of the Estate of Alibe C. Bailey. On October
14, 1998, with approval of the probate court, Phifer, in his dual roles, sold
the estates' real property in Nacogdoches County to Larry and Joyce Ellis. On
March 5, 1999, Phifer filed a Motion to Dismiss for Lack of Jurisdiction in the
suit for delinquent taxes in the Nacogdoches County District Court which was
denied. Then, on May 18, 1999, following a hearing on the merits, the district
court entered a judgment against Phifer in his dual capacities in the amount of
$15,282.31, and the judgment further declared in part:
“AND, IT IS FURTHER ORDERED, ADJUDGED, and
DECREED that a lien exists against each of the lots, tracts, or parcels of
land, for the amount of the taxes, interest, penalties, abstractor's fees and
costs of court found to be due on each particular lot, tract, or parcel of
land, which lien is prior and superior to all claims, right, title, interest,
or liens asserted by any Defendants(s), and that Plaintiffs have foreclosure of
the liens on each of the lots, tracts, or parcels of land as against the
Defendant(s) or any person claiming under the Defendant(s) by any right acquired
during the pendency of this suit; that an order of sale be issued by the Clerk
directed to the Sheriff or any Constable of this County, commanding such
officer to seize, levy upon, and advertise the sale of each of the tracts of
land, and sell them to the highest bidder for cash, as under execution, such
order to have all the force and effect of a writ of possession as between the
parties to this suit and any person claiming under the defendant(s) by any
right acquired pending this suit, . . .
“Phifer has appealed. . . . Phifer contends that the
district court in Nacogdoches County did not have jurisdiction to enter the
judgment for delinquent taxes and to foreclose its lien upon the Nacogdoches
real property which had been sold by the estate to the Ellises due to the prior
jurisdiction of the probate court. Phifer contends the probate court had
jurisdiction vested in it by sections 5 and 5A of the Texas Probate Code.
"All courts exercising original probate jurisdiction have the power to
hear all matters incident to an estate."[154] Further, subsections (a), (c)(1) and (d) of
section 5A provide:
(a) In all proceedings in the constitutional
county courts and statutory county courts at law, the phrases ‘appertaining to
estates’ and ‘incident to an estate’ in this Code include the probate of wills,
the issuance of letters testamentary and of administration, the determination
of heirship, and also include, but are not limited to, all claims by or against
an estate, all actions for trial of title to land incident to an estate and for
the enforcement of liens thereon incident to an estate, all actions for trial
of the right of property incident to an estate, and actions to construe wills,
and generally all matters relating to the settlement, partition, and distribution
of estates of deceased persons.
(c) A statutory probate court has concurrent
jurisdiction with the district court in all actions:
(1) by or against a person in the person's
capacity as a personal representative . . .
(d) A statutory probate court may exercise the
pendent and ancillary jurisdiction necessary to promote judicial efficiency and
economy.
“The Appraisal District, however, contends that the district
court in Nacogdoches County had jurisdiction under section 33.41 of the Texas
Property Tax Code which states:
(a) At any time after its tax on property becomes
delinquent, a taxing unit may file suit to foreclose the lien securing payment
of the tax, to enforce personal liability for the tax, or both. The suit must
be in a court of competent jurisdiction for the county in which the tax was
imposed.
“The Appraisal District asserts that under Estate of
Crawford v. Town of Flower Mound,[155] when there is a conflict between the
Property Tax Code and the Probate Code concerning proper jurisdiction for a tax
suit involving real property outside of the county where the probate is
pending, then the Property Tax Code provision controls.[156] [157] It further points out that if a court has
not acquired subject matter jurisdiction of the litigation, its judgment is void.[158] It thus concludes that the probate court's
agreed order of August 13, 1997, was void because the probate court did not
have jurisdiction to enter that order.
“We disagree with the Appraisal District's conclusion that
the district court had exclusive subject matter jurisdiction over its case.
While the district court had jurisdiction under the Property Tax Code, as noted
above, the probate court had obtained subject matter jurisdiction under the
Texas Probate Code.[159] The order entered by the probate court was
therefore not void for want of subject matter jurisdiction in that court.
“Thus, since both courts had subject matter jurisdiction
over the claim, we must next determine whether the district court or the
probate court had the dominant jurisdiction in this matter. The general rule in
Texas is that the court in which a suit is first filed acquires dominant
jurisdiction to the exclusion of other coordinate courts.[160] It would appear that the district court
first acquired jurisdiction when the suit for delinquent taxes was filed there
in 1989.[161] However, there are three exceptions to the
rule that the court where suit is first filed acquires dominant jurisdiction.[162] These include: (1) conduct by a party that
estops him from asserting prior active jurisdiction; (2) lack of persons to be
joined if feasible or the power to bring them before the court; and (3) lack of
intent to prosecute the first lawsuit.[163]
“A consideration of each of these factors in light of the
record before us leads us to conclude that the Appraisal District is estopped
from asserting that the district court has dominant jurisdiction. The Appraisal
District initially filed its tax suit in district court in December of 1989. At
the time it filed its July 1994 claim for delinquent taxes in probate court,
the Appraisal District had taken no further steps to obtain a judgment for
delinquent taxes or to foreclose its tax lien in district court. Then, three
months later, the Appraisal District filed suit in the probate court on its
rejected claim for taxes. Finally, on August 13, 1997, the Appraisal District
entered into an agreed order in probate court that it would transfer its tax
lien from the real property in Nacogdoches County to the proceeds from its
sale, which would be held in escrow by the administrator in Cherokee County.
The amount of the tax liens to attach to the sale proceeds held in escrow was
to be determined by ‘judgment or other final order’ of the probate court. It
was only after this agreed order was entered into in the probate court on
August 13, 1997, that the Appraisal District then actively began pursuing a
judgment and foreclosure of its tax lien on the Nacogdoches real property in
the Nacogdoches County District Court. Based upon these facts, we hold that the
Appraisal District's conduct in the probate court from July 1994 through August
13, 1997, estopped it from asserting prior active jurisdiction, i.e., dominant
jurisdiction in the district court.[164] While we agree with the dissent that
twenty-seven years is far too long for Phifer to avoid paying the estates' real
property tax obligations, we cannot ignore the effect of the August 13, 1997
probate court order agreed to by the Appraisal District.
“Accordingly, the judgment of the Nacogdoches County
District Court is set aside, and the cause is remanded to that court with
instructions to abate cause number 5627-89-12 pending final resolution of the
Appraisal District's claim in the Cherokee County Court at Law.[165]
Dissenting Opinion by Chief Justice Murphy.
“The Tax Code, however, clearly provides that delinquent ad
valorem tax suits should be brought in the county where the property is
located.[166] The majority acknowledges that the
Nacogdoches District Court had subject matter jurisdiction of this cause of
action and because suit was first filed in that forum, it had dominant
jurisdiction. The rationale for the majority's reversal is that as an exception
to such dominant jurisdiction, the conduct of the Appraisal District from 1994
until 1997 estops it from asserting the Nacogdoches District Court's dominant
jurisdiction. I disagree that the Appraisal District engaged in conduct that
estops it from asserting the Nacogdoches District Court's dominant
jurisdiction.
“The supreme court has instructed that the conduct of a party
that estops a party from asserting that the court in which the case was first
filed has dominant jurisdiction is "inequitable conduct."[167] [168] The record here shows that the Appraisal
District was involved in only three relevant acts pertinent to its claim here
during the stated period of 1994 to 1997: first, in 1994, the Appraisal
District filed its claim in Cherokee County Probate Court; second, the
Appraisal District then filed suit against the Estate in the probate court.
That suit pends. The rationale for the filing of this claim and the suit in the
probate court in 1994 is the supreme court's 1993 opinion in Bailey v. Cherokee
County Appraisal Dist.[169] There, the supreme court held that because
the suit for taxes constituted a claim against the Estates filed after
administration had commenced, jurisdiction of the suit lies in the probate
court and the case was reversed.[170] In Bailey, both the trial court suit and the
probate court were situated in Cherokee County. Considering the tortuous
history of these ad valorem tax claims, it was understandable that after the
Bailey case, that the Appraisal District would attempt to protect itself by
filing the claim and suit in the probate court as well.
“The third event that occurred in the 1994 to 1997 period was
that the Appraisal District, as recited in the majority opinion, entered into
an agreement with Phifer, the Administrator of the Estate of W.E. Bailey and
Co-Independent[171] Executor of the Estate of Alibe C. Bailey,
as well as the other surrounding counties' taxing authorities to the probate
court's entry on August 13, 1997, of the ‘Order Establishing Procedures for
Escrow of Taxes Involving Sales of Real Estate’(‘August 1997 Order’). As stated
in the majority opinion, the effect of this order was that the proceeds of a
sale of the Estates' property would be held in escrow by Phifer for the sole
purpose of funding payment of the ad valorem taxes to the respective appraisal
districts pending resolution of the pending tax litigation. The taxing
authorities' liens against the properties were transferred to the sale proceeds
in escrow.
“The subject Nacogdoches property was sold by Phifer to the
Ellises in October 1998. In May 1999, some twenty-one months after entry of the
August 1997 Order, the Appellees' Nacogdoches County District Court suit
against the representative Phifer was tried in Nacogdoches County District
Court resulting in a judgment for the Appraisal District in the approximate
amount of $15,300.
“The effect of the August 1997 Order is uncertain. The
majority concludes that the Order was not void as claimed by the Appraisal
District. It is, nevertheless, undisputed that the proceeds of the sale to the
Ellises have not been paid to the Appraisal District as per the Order. Were the
sales proceeds placed in escrow, the funds to pay the Appraisal District's tax
claim would be on deposit, the Appraisal District's claim against the Estates
would be satisfied and the Estates would be protected from the lawsuit; there
would have been no trial nor appeal. The probate court records, however, are
not before us.[172]
“Nevertheless, the third and final event in the 1994 to 1997
period, agreeing to that August 1997 Order, does not suggest any ‘inequitable
conduct’ by the Appraisal District. The Appraisal District only joined with the
four other taxing authorities and with Phifer in agreeing to the August 1997
Order, and there was no inappropriate conduct by the Appraisal District in
attempting to establish a procedure for the sale of the Estates' properties.
The Appraisal District's joint agreement to such an order does not reflect any
action remotely akin to inequitable conduct on the part of the Appraisal
District.
“Furthermore, in [a footnote], the majority stated,
"that once the Appraisal District commenced its July 1994 proceedings in
probate court, it never once, over the course of three years, attempted to stop
the probate court from proceeding further on its tax claim by filing a plea in
abatement directing the probate court's attention to the Appraisal District's
prior tax suit, which was still pending in district court." The majority
goes on to conclude that the District [Court] lost its right to assert the
dominant jurisdiction of the Nacogdoches court by failing to file a plea in
abatement in the probate court. I disagree. The probate court suit has never
been set for trial. This appeal only involves a trial in the district court of
Nacogdoches County. The absence of a plea in abatement in the probate court
suit was never in issue in the Nacogdoches County District Court. The
Nacogdoches court judgment had preclusive effect on the pendency of the probate
court proceeding.[173]
“Finally, there is no evidence of estoppel that the
Appraisal District by its speech or conduct induced the Estates to act in a
particular manner that caused loss or injury to the Estates.[174] [175] The Estates took no action as a consequence
of the events that occurred from 1994 to 1997; they were not affected
detrimentally.
“The parties to this dispute have finally had their day in
court, and the suit was tried in an appropriate forum. For all of the stated
reasons, I would overrule the Estates' issues one and three.”
*
* * * *
New Bailey
Case #6B Phifer,
administrator of the Estate of Bailey v. Nacogdoches County Central Appraisal
District
October
31, 2000 45 S.W.3d 159 (TexApp - Tyler 2000) (Replaces 6A) (Opinion by Justice Worthen)
“By its motion for rehearing, the Nacogdoches County Central
Appraisal District contends this Court erred in determining that the Cherokee
County Court at Law has jurisdiction over this case. Finding some merit to the
Appraisal District's arguments raised on rehearing, we grant its motion for
rehearing. We withdraw our opinion and judgment of April 25, 2000 and
substitute the following opinion affirming the trial court's judgment.
“Appellant, Dwight L. Phifer, Administrator of the Estate of
Walter Earl Bailey 1 [176] and Co-Independent Executor of the Estate of
Alibe C. Bailey, appeals from a judgment entered by the 145th Judicial District
Court of Nacogdoches County, awarding the Appraisal District delinquent
property taxes and foreclosure of a tax lien on certain real property in
Nacogdoches County. That property is also subject to a continuing probate
proceeding in the County Court at Law ("probate court") in Cherokee
County. Phifer raises four issues on appeal. We affirm the district court's
judgment.
“In 1973, W.E. Bailey died intestate in Cherokee County. His
widow, Alibe C. Bailey, began probate proceedings in the probate court in
Cherokee County and was named as administratrix of the estate of W.E. Bailey.
At the time of his death, W.E. Bailey owned real property in the counties of
Cherokee, Anderson, Gregg, Nacogdoches, and Smith. The estate has not paid real
property taxes on any of this land during the pendency of the W.E. Bailey
estate. The estate remains open solely due to the unpaid property taxes.
“In 1989, the Appraisal District filed an original petition
in the Nacogdoches County District Court to collect delinquent taxes and to
foreclose upon the real property located in Nacogdoches County. The
administratrix, Alibe C. Bailey, filed a plea in abatement on behalf of the
W.E. Bailey estate. In 1992, Alibe C. Bailey died. In July 1994, the Appraisal
District filed a claim in the Cherokee County probate proceedings for the
delinquent taxes owed by the estate of W. E. Bailey on the real property
located in Nacogdoches County. In October 1994, following the rejection of its
claim by the W. E. Bailey estate, the Appraisal District filed suit in the probate
court pursuant to the probate code to pursue its claim.
“On August 13, 1997, the probate court entered an
"Order Establishing Procedures for Escrow of Taxes Involving Sales of Real
Estate" in the probate proceeding. This order was agreed upon by the taxing
authorities in the five above-named counties and by Phifer, in both his dual
capacities as administrator of the Estate of W. E. Bailey and Co-Independent
Executor of the Estate of Alibe C. Bailey. The order contained the following
paragraph:
3. The escrow fund shall be held by the
administrator for the benefit of the estate and of the creditor taxing units of
Smith Count [sic], Cherokee County, Gregg County, Nacogdoches County, and
Anderson County, all of which taxing units have various disputed claims pending
against the estate for ad valorem taxes; that such funds may not be expended or
commingled with other funds of the estate until further ordered by the Court
and with prior notice to the taxing units through their attorneys of record;
and that the liens (if any are found to exist upon final completion of the tax
litigation involving this Estate and the herein mentioned taxing authorities)
held by the taxing units, charged against the property sold, and securing
payment of ad valorem taxes, penalties, interest and costs, are transferred
from the property sold and hereby Ordered attached to such escrow funds in lieu
of the sold property itself; that such funds in escrow be held solely for the
purpose of funding payment of the taxes on the property and on other properties
of the estate upon the ultimate resolution of the pending tax litigation, but
only to the extent that such taxes are established by judgment or other final
Order of the Court; and that the specific property subject of this Order is sold
free and clear of such liens, save and except the current year tax lien which
tax year and amount is ordered to be prorated between the estate and purchaser
unless the purchaser assumes payment of such current years taxes.
“On September 29, 1997, shortly after agreeing to the
above-referenced order in the probate court, and apparently after several years
of inactivity in the district court, the Appraisal District resumed pursuit of
its claim in the district court by filing its First Amended Original Petition.
On October 14, 1998, with approval of the probate court, Phifer, in his dual
roles, sold the estates' Nacogdoches County real property to Larry and Joyce
Ellis. Phifer attempted unsuccessfully to have the district court case
dismissed for lack of jurisdiction claiming that only the probate court could
hear the Appraisal District's claims. After a hearing on the merits, the
district court entered a judgment against Phifer, in his dual capacities, in
the amount of $15,282.31. That judgment, signed May 18, 1999, further ordered
the foreclosure of the Appraisal District's lien and the sale of the
Nacogdoches County property. Phifer appealed, contesting the district court's
jurisdiction and attacking the merits of the judgment.
“In his first issue, Phifer contends that the Nacogdoches
County District Court did not have jurisdiction over the Appraisal District's
suit to collect delinquent taxes. He asserts that, pursuant to section 5 of the
Texas Probate Code, the Cherokee County Court at Law, which has original
probate jurisdiction over the Bailey estate, has the power to hear all matters
"incident to an estate" and all petitions regarding probate and
administration must be filed and heard in that court.[177] He further contends that the Appraisal
District's claims for delinquent taxes are claims "incident to an
estate" as that phrase is used in section 5A. That phrase includes all
claims against an estate and all actions for enforcement of liens on land
incident to an estate.[178] Phifer also asserts that the Appraisal
District's tax claim falls within the definition of "claims" in
section 3(c) of the Probate Code, which provides that "claims"
include liabilities of a decedent, including taxes.[179] Further, Phifer argues that the probate
court and the district court have concurrent venue and, pursuant to section 8,
the probate court has jurisdiction because probate proceedings were instituted
there before the tax suit was filed in district court.[180]
“The Appraisal District, however, contends that the district
court in Nacogdoches County had jurisdiction pursuant to section 33.41(a) of
the Texas Property Tax Code which states:
At any time after its tax on property becomes delinquent, a
taxing unit may file suit to foreclose the lien securing payment of the tax, to
enforce personal liability for the tax, or both. The suit must be in a court of
competent jurisdiction for the county in which the tax was imposed.
Tex.
Tax Code § 33.41(a). The Appraisal District asserts that under Estate of
Crawford v. Town of Flower Mound,[181] when there is a conflict between the
Property Tax Code and the Probate Code concerning proper jurisdiction for a tax
suit involving real property outside of the county where the probate is
pending, then the Property Tax Code provision controls. Apparently inspired by
the holding in Crawford, the Texas Legislature, in 1999, added Probate Code
section 5C, entitled "Actions to Collect Delinquent Property Taxes,"
which reads in pertinent part as follows:
(a) This section applies only to a decedent's estate that:
(1) is being administered in a pending probate proceeding;
(2) owns or claims an interest in property against which a
taxing unit has imposed ad valorem taxes that are delinquent; and
(3) is not being administered as an independent
administration under Section 145 of this code.
(b) Notwithstanding any provision of this code to the
contrary, if the probate proceedings are pending in a foreign jurisdiction or
in a county other than the county in which the taxes were imposed, a suit to
foreclose the lien securing payment of the taxes or to enforce personal
liability for the taxes must be brought under Section 33.41, Tax Code, in a
court of competent jurisdiction in the county in which the taxes were imposed.[182]
“In its motion for rehearing, the Appraisal District asserts
for the first time that this Court must apply new section 5C to this case. It
argues that section 5C reconciles any conflicts between the Probate Code's
jurisdictional provisions and the Tax Code's provisions by requiring this suit
to collect delinquent property taxes to be brought in Nacogdoches County, the
county in which the taxes were imposed. Even if the Cherokee County Court at
Law originally acquired jurisdiction of the Appraisal District's tax claims, it
argues, that court was divested of jurisdiction on September 1, 1999, the
effective date of new section 5C.
“Phifer responds that new section 5C is not applicable to
this case for several reasons. He argues that the Supreme Court, in Bailey v.
Cherokee County Appraisal District,[183] held that the Cherokee County Court at Law
is the court of competent jurisdiction to adjudicate these claims. He also
contends that the Appraisal District relinquished its lien for the alleged
delinquent taxes in the Agreed Escrow Order. Further, he contends that because
the estate sold the property to the Ellises, the estate does not own or claim
an interest in the property as required by section 5C. Phifer additionally
argues that 5C does not apply here because the district court's judgment was
rendered May 18, 1999 and, therefore, the cause of action was not pending on
September 1, 1999, the amendment's effective date. Finally, Phifer argues that
the new probate laws cannot be applied to this case because retroactive
application of amended Probate Code section 317(c) would destroy his defense of
limitations in violation of the constitution's prohibition against ex post
facto laws.
“The sole purpose of a motion for rehearing is to provide
the court an opportunity to correct any errors on issues already presented.[184] A motion for rehearing does not afford a
party an opportunity to raise new issues.[185] While applicability of new section 5C is
raised for the first time on rehearing, the issue is one of jurisdiction.[186] Therefore, the
applicability of the amendment may be raised for the first time in a motion for
rehearing.[187]
“Section 5C unquestionably provides that a suit to collect
delinquent taxes on property should be brought in the county where the property
is located even when probate proceedings are pending in another county.
Accordingly, if section 5C applies, the Nacogdoches County District Court had
jurisdiction over this case and the Cherokee County Court at Law did not. We
now address whether new section 5C is applicable to this case. The threshold
inquiry is whether the legislature expressly prescribed the statute's proper
reach.[188] If the legislature has done so, the
legislative command must be obeyed without analyzing the issue further.[189] Thus, when the legislature has specifically
provided for the applicability of a new law to pending cases, the courts must
apply the law as intended. Additionally, it is proper to apply intervening
statutes conferring or ousting jurisdiction, whether or not jurisdiction lay
when the underlying conduct occurred or when the suit was filed.[190] Application of a new jurisdictional rule
usually takes away no substantive right but simply changes the tribunal that is
to hear the case.[191] Present law normally governs in such
situations because jurisdictional statutes speak to the power of the court
rather than to the rights or obligations of the parties.[192] Further, when the applicable law changes
during the pendency of the appeal, the court of appeals must render its
decision in light of the change in the law.[193]
“The legislature declared September 1, 1999 as the effective
date for new section 5C.[194] There is no savings clause providing that
the former law is continued in effect for any purpose.[195] On the contrary, the amendment is
specifically made applicable to all causes of action pending on September 1,
1999. Thus, the legislature clearly intended this jurisdictional amendment to
apply retrospectively to cases that were filed prior to September 1, 1999 and
that were still pending on that date. We must apply the law as intended.[196] This suit was filed in 1989. As Phifer
points out, the trial court's judgment was entered on May 18, 1999. Phifer
appealed to this Court in a timely manner and the cause was pending in this
Court on September 1, 1999. The fact that the district court had entered its
judgment prior to September 1, 1999 is not determinative. The applicable law
changed during the pendency of the appeal and this Court must rule in light of
the change in the law.[197] Thus, consideration of these general rules
of statutory construction directs us to apply new section 5C to this case.[198] As we explain below, even if the legislative
directive were unclear or insufficient, there are other considerations that
support this conclusion.
“We shall not attempt an unnecessary in depth discussion of
the somewhat murky history and evolution of probate jurisdiction. We also shall
not attempt to differentiate between jurisdictional grants to constitutional
county courts, statutory probate courts, and county courts at law.[199] Our focus here is on the authority of a
district court to hear a delinquent tax suit concerning property located in the
same county as the district court but also involved in probate proceedings
pending in another county. Keeping our narrow focus in mind, we review these
subjects from a historical perspective which also supports our determination
that this case belongs in the Nacogdoches County District Court.
“Prior to 1973, the Texas Constitution provided that
district courts had jurisdiction over certain enumerated probate matters. Tex.
Const. art. V, § 8. In 1973, section 8 was amended to expand the district
court's probate jurisdiction and provided that the legislature may change the
jurisdiction of district or county courts in probate matters. However, by amendment to the Probate Code,
the legislature has diminished the jurisdiction of the district court in
probate related matters.[200] Current article V, section 8 of the
constitution, which has been in effect since 1985, is much more general than
previous versions. It states in pertinent part that "District Court
jurisdiction consists of exclusive, appellate, and original jurisdiction of all
actions, proceedings, and remedies, except in cases where exclusive, appellate,
or original jurisdiction may be conferred by this Constitution or other law on
some other court, tribunal, or administrative body." Thus, the trend would appear to be to
require parties to try cases involving estates in the probate court.
“On the other hand, a different picture comes to light when
considering suits to collect delinquent property taxes and enforce liens on
land. The Texas Constitution provides that the annual assessment of taxes
against land constitutes a lien on the property until the taxes have been paid.
Tex. Const. art. VIII, § 15. All property belonging to a delinquent taxpayer is
susceptible to seizure and sale for the payment of taxes under regulations as
the legislature may provide. The 1876 version of Article V, section 8
specifically granted jurisdiction for the enforcement of liens on land to the
district court. That provision remained
in tact until 1985 when it was removed in favor of the more general language
set out above providing that unless exclusive, appellate, or original
jurisdiction is conferred on another court, the district court has
jurisdiction. The Probate Code includes enforcement of liens on land among
those enumerated matters to be heard in constitutional county courts, statutory
county courts at law, statutory probate courts, and district courts when
incident to an estate.[201] However, no other court has been given
exclusive, appellate or original jurisdiction over suits to enforce a lien on
land not incident to an estate. Thus, jurisdiction over suits to enforce a lien
on land not incident to an estate remains in the district court. However, this
incident/not incident to an estate dichotomy addresses the issue of which court
within one county has jurisdiction. It does not resolve the jurisdictional
dilemma presented when the land is in one county and probate of the estate is
pending in another county.
“The legislature has, since 1943, specifically required
suits to collect delinquent property taxes to be brought in the county in which
the taxes were levied.[202] Tax liens attach upon the land rather than
upon the person, and a foreclosure suit is a proceeding ‘in rem’ rather than
‘in personam.’[203] It follows that a foreclosure suit should be
brought in the county where the property is located. Moreover, taxing units
derive the authority to file suit to collect delinquent property taxes from
section 33.41 of the Tax Code which directs them to file suit in the county in
which the tax was imposed, meaning in the county where the land is located.[204] When a cause of action is derived from a
statute, the statutory provisions are mandatory and exclusive and must be
complied with in all respects or the action is not maintainable for lack of
jurisdiction.[205] This is persuasive authority for determining
that this delinquent tax suit involving land in Nacogdoches County should be
heard in the district court in that county.
“Finally, as explained in Crawford, policy considerations
favor our holding that jurisdiction over this case lies in the district court.
The jurisdictional requirement of Tax Code section 33.41(a) was imposed ‘to
ensure that governmental taxing units need not bear the burden and expense of
enforcing their taxes in every county in Texas.’[206] Taxing authorities should not be required to
first determine whether every taxpayer is alive and then research every county
in Texas to discover if a probate proceeding is pending.[207] The case before us provides adequate
illustration of the need to curb this burden, as various taxing authorities in
each of several counties have been involved in litigation with the Bailey
estate in attempts to collect past due taxes.
“Phifer contends that the 1993 Texas Supreme Court case
involving the Bailey estate requires this case to be tried in probate court. In
that case, the taxing authorities in Cherokee County had filed suit in the
district court in Cherokee County to collect taxes accruing on estate property
located in Cherokee County. The Supreme Court held that, because the case
constituted a claim against the estate, filed after administration had begun in
the Cherokee County Court at Law sitting in probate, jurisdiction over the
taxing authorities' claims lay with the Cherokee County Court at Law.[208] While that case held that the Cherokee
County Court at Law was the court of competent jurisdiction to consider the
Cherokee County taxing authorities' claims, that case is not controlling here.
That case did not involve land located in a county other than the county where
probate proceedings were pending. Further, even if the land had been in another
county, section 5C was not available for the Supreme Court's consideration.
“With regard to Phifer's assertion that section 5C does not
apply because the estate sold the property to the Ellises, Phifer misconstrues
the statute. Section 5C(a)(2) makes this section applicable to an estate that
‘owns or claims an interest’ in property owing delinquent ad valorem taxes.[209] Section 5C instructs taxing units where to
file actions to collect delinquent property taxes. The guidelines of the
statute must necessarily apply at the time suit is filed. Otherwise, an estate
could simply divest a court of jurisdiction by selling the property between the
date suit is filed and the date of judgment. Parties cannot manipulate
jurisdiction. Accordingly, we disagree that present ownership by a third party
can affect applicability of section 5C or alter its requirement that this suit
should be heard in a court of competent jurisdiction in Nacogdoches County, the
county in which the property at issue is located.
“We need not reach Phifer’s argument based on his assertion
that retroactive application of amended Probate Code Section 317(c), which
involves the presentment of claims against the estate, would constitute a
violation of his constitutional rights.[210] Although section 317(c) was amended at the
same time section 5C was added, we need not consider its effect. Section 317(c)
does not factor into a determination of where the Appraisal District must
assert its claims. Therefore, whether retroactive application of section 317(c)
would be unconstitutional is not a question that is before us.
“This is a hybrid case to enforce a lien on land in one
county incident to an estate pending in another county. Although ordinarily,
pursuant to the Probate Code, all claims against an estate, all actions for
enforcement of liens on land incident to the estate, and all matters relating
to the settlement of the estate should be heard in the probate court, the
legislature has carved out an exception to the rule. The legislature has made
it clear that in suits to collect delinquent taxes on property located in a
county other than the county where the estate is being probated, whether the
issues are incident to or appertaining to an estate is not controlling. In such
cases, including the one before us, the Tax Code's requirement that suit be
brought in the county where the property is located controls. Accordingly, we
conclude that the Nacogdoches County District Court had jurisdiction pursuant
to section 33.41 of the Tax Code.[211] We overrule Phifer's first issue.
_________________
Comment on New Bailey
New Bailey is
remarkable. Contemplate whether the
court of appeals had jurisdiction. If
the trial court lacked jurisdiction, does the court of appeals gain
jurisdiction, or is its jurisdiction no greater than the jurisdiction of the
trial court? If the court of appeals
lacked jurisdiction because the trial court lacked jurisdiction, was the case
“pending” in the court of appeals. The court’s holding is dependent on the case
“pending” in the court of appeals. We repeat the court’s statement:
“[T]he cause was pending in this Court on September 1, 1999.
. . . The applicable law changed during the pendency of the appeal and this
Court must rule in light of the change in the law.[212] Thus, consideration of these general rules
of statutory construction directs us to apply new section 5C to this case.”
The rest of New Bailey
does not directly discuss jurisdiction, but it is remarkable and
irresistible You may skip it, but you
will be missing out. It is astounding in this case because the trial court had
no jurisdiction until the case was in the court of appeals. The procedural
issues occured in a court which lacked jurisdiction! Consider what obligation a
lawyer or party has to litigate in a void (at the time) proceeding in a court
which (at the time of the litigation) does not have jurisdiction. Retroactive
jurisdiction makes past actions of lawyers and parties look bad, even if they
were sensible at the time. If there was
no jurisdiction, was the party required to comply with the procedures required
in New Bailey?
_________________
“In his second issue, Phifer raises five separate issues. He
contends that the trial court erred in not allowing him to file a document
entitled "Defendant's Appearance and First Amended Plea in
Abatement," in allowing the Appraisal District to recover on a claim
barred by limitations, in failing to grant Alibe Bailey's Plea in Abatement, in
holding that Phifer, in his capacity as representative of Alibe Bailey's
estate, defaulted, and in failing to grant his oral motion for continuance. . .
.
“We need not address Phifer's argument under this issue that
the trial court erred in denying the plea in abatement filed February 12, 1990.
That was a plea to the jurisdiction, a subject we fully considered in
addressing Phifer's first issue.
“A recitation of some procedural facts is necessary here.
The Appraisal District's Original Petition, filed December 4, 1989, named as
defendants Alibe Bailey, individually and as administratrix of the W.E. Bailey
estate, William E. Bailey, and Robert E. Bailey. The defendants filed their
"Defendants' Appearance and Plea in Abatement" on February 12, 1990,
asserting that the district court lacked subject matter jurisdiction and
entering a general denial. Alibe Bailey died on June 1, 1992. On September 29,
1997, the Appraisal District filed its First Amended Original Petition, naming
as the sole defendant Phifer, in his capacity as administrator of the W.E.
Bailey estate. On November 10, 1997, the Appraisal District filed its Second
Amended Original Petition, naming as defendant Phifer in his capacity as
administrator of the W.E. Bailey estate and in his capacity as co-independent
executor of the Alibe Bailey estate. Phifer filed a general denial in his
capacity as administrator of the W.E. Bailey estate on November 12, 1997. He
did not file a timely answer in his capacity as co-independent executor of the
Alibe Bailey estate.
“In his capacity as administrator of the W.E. Bailey estate,
Phifer filed a motion to dismiss for lack of jurisdiction on March 5, 1999,
arguing that the Cherokee County Court at Law had exclusive jurisdiction
because probate of the estates was pending there. This motion was denied by
Judge Jack Pierce on March 15, 1999, without a hearing. On May 8, 1999, Phifer
mailed a document entitled "Defendants' Appearance and First Amended Plea
in Abatement" which is file stamped as having been filed on May 10, 1999.
The parties appeared before visiting Judge Joe Clayton on May 10. At that
hearing, counsel for Phifer attempted to re-urge the question of jurisdiction,
arguing that he was, until that day, unaware that his motion to dismiss had
been ruled on. Judge Clayton agreed to reset the case to May 12 to allow Judge
Pierce to determine whether he wished to hear oral argument on the jurisdictional
issue in spite of having previously ruled on the motion to dismiss. Judge
Pierce declined to revisit the question of jurisdiction, found that Phifer had
notice of the hearing on the merits, denied leave to file Phifer's amended
pleading, denied counsel's request for a continuance, and proceeded to hear the
merits of the case. The trial judge later entered a written order striking
Phifer's amended plea.
“Phifer complains that he was not allowed to file his
amended pleading. Under Rule 63 of the Rules of Civil Procedure, a party
seeking to file an amended pleading within seven days of the date a case is set
for trial must obtain leave from the judge. Tex. R. Civ. P. 63. Where leave is
sought, the trial judge has no discretion to refuse it unless the opposing
party presents evidence of surprise or prejudice or the amendment asserts a new
cause of action or defense, and thus is prejudicial on its face, and the
opposing party objects to the amendment.[213]
“Counsel asserted that the amended pleading was placed in
the mail on May 8. It was file stamped May 10. The trial was set for May 10.
The case was actually heard on May 12. Clearly, whether considering the date
mailed or the date filed, the amendment was tendered within seven days of the
trial setting. Accordingly, Phifer was required to obtain leave of court. Leave
of court was not requested until after the document was filed. Further, the
amended pleading raises the affirmative defense of limitations and is thus
prejudicial on its face.[214] The Appraisal District objected to the
amendment. Accordingly, the trial judge did not err in refusing to allow the
amended pleading to be filed.[215]
“In a separate argument under issue two, Phifer complains of
the default judgment entered against him in his capacity as executor of Alibe
Bailey's estate. As explained, Alibe Bailey filed a general denial in 1990, on
behalf of herself individually, and as the administrator of the W.E. Bailey
estate. Phifer, on November 12, 1997, filed a general denial in his capacity as
administrator of the W.E. Bailey estate. Phifer did not file a timely answer in
his capacity as co-independent executor of the Alibe Bailey estate. Following
Alibe Bailey's death, the Appraisal District did not file a scire facias
pursuant to Rule of Civil Procedure 152 to bring Alibe Bailey's representative
into the suit. Phifer asserts that, in the absence of a scire facias, the
answer filed by Alibe Bailey in 1990 inures to Phifer's benefit in his capacity
as representative of her estate. The Appraisal District responds that a writ of
scire facias is inapplicable because it had, by its First Amended Original
Petition, effectively nonsuited Alibe Bailey by naming Phifer only in his
capacity as representative of the W.E. Bailey estate. It further reasons that,
when it filed its second amended petition naming Phifer in both capacities, and
had him served in both capacities, it brought the Alibe Bailey estate back into
the suit. Accordingly, as Phifer never answered in his capacity as
representative of the Alibe Bailey estate, the default entered against Phifer
in his capacity as representative of the estate of Alibe Bailey was proper.
“To set aside a default judgment by motion for new trial the
movant must 1) establish that the failure to answer was not intentional or the
result of conscious indifference, 2) set up a meritorious defense, and 3)
demonstrate that setting aside the default will not cause a delay or otherwise
injure plaintiff.[216] We review the trial court's denial of the
motion for new trial under an abuse of discretion standard.[217] Whether the executor's failure to answer was
intentional or the result of conscious indifference is a fact question.[218] The movant must, by affidavits accompanying
its motion for new trial, set forth facts which, if true, would negate an
intentional or consciously indifferent failure to answer.[219] When a default judgment is attacked on
direct appeal, every step of the proceeding is open to examination.[220] The record must affirmatively show a strict
compliance with all the necessary requisites for issuance, service, and return
of process.[221]
“The rules of civil procedure provide a method for
proceeding with a pending cause of action that survives after the death of a
party. Rule 152 applies on the death of a defendant, requiring her estate's
legal representative to appear and defend the suit after being served with
scire facias. Tex. R. Civ. P. 152. The scire facias and returns thereon must
conform to the requisites of citations and returns as set out in the rules of
civil procedure.[222] The purpose of scire facias is to substitute
the legal representatives in the decedent's place.[223] When a writ of scire facias has issued, the
deceased's legal representative may adopt pleadings previously filed by the
decedent, thereby preventing rendition of a valid default judgment for failure
to file an answer. [224] This procedure was not followed in this
case.
“An amended pleading supersedes and supplants the original
pleading.[225] An amended petition that omits a previously
named defendant operates as a voluntary dismissal as to that party. Webb v.
Jorns, 488 S.W.2d 407, 409 (Tex. 1972). Accordingly, when the Appraisal
District filed its amended petition of September 29 in which it omitted Alibe
Bailey, it dropped her from the suit. At that point, the rules regarding the
writ of scire facias, including service pursuant to Rule 154, were
inapplicable. When, on November 10, the Appraisal District filed its second
amended petition naming Phifer in his capacity as representative of Alibe
Bailey's estate, it had to comply with the rules regarding issuance, service
and return of citation in order to effectively bring him into the suit in this
additional capacity.[226] The record shows that citation, directed to
Phifer in both his capacity as representative of the W.E. Bailey estate and as
representative of the Alibe Bailey estate, was issued on March 25, 1999 and
served on March 29, 1999. The sheriff's return was properly filed thereafter.
“Phifer briefly asserted in his motion for new trial that he
should be allowed to rely on the previously filed answer of Alibe Bailey. As
explained above, that 1990 answer does not, under the facts of this case, inure
to Phifer's benefit. The Appraisal District properly served Phifer after
amending its petition to name Phifer as representative of Alibe Bailey's estate
as a defendant. Therefore, Phifer, as representative of Alibe Bailey's estate,
was properly brought into the suit. Phifer attached no affidavit to his motion
for new trial regarding the subject of his failure to answer. Phifer did not
establish that his failure to answer was not intentional or the result of
conscious indifference.[227] Accordingly, we conclude that the trial
court did not err in refusing to set aside the default judgment.
“Also under his second issue, Phifer contends the trial
court erred in failing to grant counsel's oral motion for continuance which was
based on Phifer's inability to attend trial as a witness. Counsel's oral
motion, unsupported by affidavit or consent of the Appraisal District, does not
satisfy the requisites of Rule 251 of the Texas Rules of Civil Procedure.[228] When the provisions of Rule 251 have not
been satisfied, it will be presumed that the trial court did not abuse its
discretion in denying a continuance.[229]
“Finally, under issue two, Phifer alleges it was error to
allow the Appraisal District to recover on a claim barred by limitations. This
complaint goes directly to the viability of an affirmative defense that was
never pleaded. The Rules of Civil Procedure require a claim that a plaintiff's
cause of action is barred by the applicable statute of limitations to be
affirmatively set forth in a responsive pleading.[230] In the absence of the required pleading,
this issue was not before the trial court.[231] Having found no merit to any of the
complaints raised by Phifer in his second issue, we overrule issue two.
“In his third issue, Phifer asserts that the trial court
erred in failing to grant his motion for new trial because the Ellises,
purchasers of the Nacogdoches County property at issue, were not joined in this
suit. Phifer contends that the failure to bring them into the suit constitutes
a violation of their due process rights. A party on appeal may not complain of
errors that do not injuriously affect him or that merely affect the rights of
others.[232] Accordingly, to the extent Phifer complains
of a violation of the Ellises' rights, he may not do so.
“Phifer further asserts that, in the Ellises' absence,
complete relief cannot be granted and he "would be in substantial risk of
incurring double liability." If this is a complaint that the Ellises
should have been joined in the lawsuit, Phifer has waived this complaint. The
Ellises became the owners of the property on October 14, 1998. At no time prior
to the date of trial did Phifer attempt to join the Ellises in the lawsuit. At
the close of the hearing on the merits, after both sides had rested, Phifer
asserted that the Ellises should have been made parties to this suit. However,
there was never a request for leave to serve the Ellises with citation and
petition. Assuming the mere mention of joinder combined with the expression of
opinion that someone should be joined constitutes a request, it was too late.[233]
“Also under his third issue, Phifer contends that, as the
agreed order entered by the probate court removed the Appraisal District's lien
from the land and placed it on the sale proceeds, the Appraisal District cannot
foreclose on the land. As we explained, the Nacogdoches County District Court
has jurisdiction over the Appraisal District's suit for delinquent taxes. The
Cherokee County Court at Law did not have jurisdiction over the Appraisal
District's claims at the time it entered the Agreed Order. A court without
jurisdiction cannot render a valid judgment.[234] Accordingly, the Agreed Order was null and
void and did not operate to transfer the Appraisal District's tax lien from the
real property to the proceeds of the sale.
“Additionally, Phifer contends under his third issue, that
he was not given proper notice of the trial setting. He asserts that the
failure to provide proper notice of the trial violated his right of due
process. Phifer does not assert that he did not receive the notice that was
sent. He argues only that he thought the notice was for a hearing on his motion
to dismiss.
“The law presumes that a trial court will hear a case only
after proper notice to the party.[235] To rebut this presumption, Phifer has the
burden to affirmatively show a lack of notice by affidavit or other competent
evidence.[236] Phifer filed an affidavit with his motion
for new trial asserting that he thought the notice he received related to a
hearing on his motion to dismiss. Attached to his affidavit is a copy of a
notice, dated March 19, 1999, that Phifer admits he received. That notice states
that a "HEARING ON THE MERITS" is set for May 10, 1999. Our record
also contains a second notice, dated April 13, 1999, which states that a
"HEARING ON A TAX SUIT" is set for May 10, 1999. Both notices state
that the hearing was requested by the plaintiff, a fact making Phifer's
argument that he thought the hearing was on his own motion to dismiss less
credible. We conclude that Phifer did not overcome the presumption that he
received proper notice of the trial setting.[237] Accordingly, the trial court did not err in
denying Phifer's motion for new trial based on Phifer's alleged failure to
receive notice of the trial setting. We overrule Phifer's third issue.
“In his fourth issue, Phifer contends the evidence is
insufficient to support the trial court's award of damages to the Appraisal
District. He argues that the Appraisal District's witness testified that he did
not know if the required delinquent tax notices were sent to Alibe Bailey when
she was administrator of the estate of W.E. Bailey. Phifer contends this
testimony is a judicial admission that proper notice was not sent, precluding
any award for penalties and interest. He also argues that the trial court erred
by including claims barred by limitations.
“Texas Rule of Civil Procedure 54 provides that it is
sufficient to aver generally that all conditions precedent have been performed
and when a party has so pleaded, he is required to prove only that which is
specifically denied by the opposing party. Tex. R. Civ. P. 54. Here, Phifer, as
representative of W.E. Bailey's estate, filed only a general denial and, as
representative of Alibe Bailey's estate, filed no answer. Section 33.47 of the
Tax Code provides that the delinquent tax roll constitutes prima facie evidence
that all requirements of law relating to the imposition of the tax have been
complied with.[238] Here, when the Appraisal District introduced
certified copies of the delinquent tax record, it established its prima facie
case as to every material fact necessary to establish its cause of action, including
that Phifer received proper delinquent tax notices.[239] Phifer presented no witnesses. Defendant's
Exhibit 1, admitted during cross-examination of the Appraisal District's
witness, does not bear on the issue of whether the property owners received delinquent
tax notices. Further, in light of Phifer's failure to specifically deny that
notice was properly given, the Appraisal District was not required to offer
independent proof of proper notice. Accordingly, the Appraisal District's
evidence was sufficient to support the trial court's damages award.[240]
“To the extent Phifer argues under this issue that the trial
court's award is erroneous because some amounts are barred by limitations, that
affirmative defense was not before the trial court and properly not considered
in calculating the damage award.[241] We overrule Phifer's
fourth issue.
“We affirm the trial court's judgment.
“JIM WORTHEN, Justice
“Panel consisted of Davis, C.J., Hadden, J., and Worthen,
J.”
*
* * * *
Case #7 Sabine
Gas Transmission Company, et al. v. Winnie Pipeline Transmission Company and
Southeastern Marketing Company, et al
March
2, 2000 15 S.W.3d 199 (TexApp Houston [14th dist.] 2000))
In the world of Texas
probate jurisdiction, it is hard to pick one case as the "this one is takes
the cake" or "doesn’t this beat all" case. Some might nominate
Sabine. Note that the name is Sabine Gas Transmission Company, et al. v. Winnie
Pipeline Transmission Company and Southeastern Marketing Company, et al. Yes,
that is a clue. The name does not mention an estate, an executor, a dead
person, a guardian, a ward, a trustee, or a trust. This is a suit between two
gas pipeline companies. It couldn't possibly be a probate case, could it? In Texas, sure it could. Though natural gas
transmission is not a dead industry, this case is a probate jurisdiction case.
As cases go, this one is a gas.[242]
Sabine arose from
alleged bribes and kickbacks taken under a percentage gas sales contract. The
Sabine case was in the Montgomery County District Court, which had
jurisdiction. Then the TexasTwoStep began. In the first step, the Harris County
Probate Court #2 reached out and plucked this case from the Montgomery County
District Court. In the second step, that same Harris County Probate Court #2
dismissed the case on the grounds that the Harris County's Probate Court #2 no
longer had jurisdiction. It did not return the case to the Montgomery County
District Court. Instead it dismissed the case. One wonders if Dennis the Menace
grew up and became a judge. But this was only the beginning.
The dismissal was
appealed. The Fourteenth Court of Appeals provides a detailed analysis of its
reasons for concluding that the Probate Court erred in dismissing the case for
lack of jurisdiction because the Probate Court did have jurisdiction.
Pause and reflect for a
moment. The Probate Court dismissed a
case for lack of jurisdiction. That was erroneous. So, what does the Fourteenth
Court do? Does it reverse? No. It holds
that, even though the Probate Court had jurisdiction, that court could dismiss
this case over which it did have jurisdiction, so... no harm, no foul, no
reversal. The dismissal is affirmed.
Isn’t Texas probate
jurisdiction fun! The dismissal was
without prejudice. The parties, having
been to the Montgomery County District Court, Harris County Probate Court #2
and 14th District Court of appeals may refile their suit and see what the
courts do next[243] So far, the
litigants and courts have accomplished . . . nothing. And, you ask, what about
the statute of limitations and concept of judicial economy? Well, what about it? We turn to the case itself.
“This appeal arises from the probate court's dismissal of
the claims of Winnie Pipeline Company and Southeastern Marketing Company
(collectively "Winnie") against Sabine Gas Transmission Company and
other defendants (collectively "Sabine") for lack of jurisdiction.
Alleging that the probate court erred in finding it lost jurisdiction over
Winnie's claims, Sabine asks us to reverse the probate court's dismissal of the
claims and reinstate the case in the probate court. Though we agree with Sabine
that the court's decision was erroneous, we find any error in the court's
finding was harmless and affirm its dismissal.
“This case arose when Winnie filed assorted claims against
Sabine and several others in a Montgomery County District Court arising from
alleged bribes and kickbacks taken under a percentage gas sales contract. Two
of the named defendants were the independent co-executors[244] of the Walter Fawcett estate which was being
probated in Harris County Probate Court No. 2. The Executors moved to transfer
Winnie's claims to Harris County, based on the assertion that the probate court
had dominant, concurrent, or pendent jurisdiction over the claims since the
Executors were parties to the suit. The probate court granted the Executors'
motion and consolidated these claims with the probate proceeding. Eventually,
Winnie settled with the Executors, non-suited its claims against them, and
moved to have its remaining claims against Sabine dismissed for lack of
jurisdiction. The probate court granted
Winnie's motion and dismissed its claims without prejudice, making an express
finding that it lost jurisdiction over the claims. Sabine appealed.
“. . . Sabine points to the general rule that once a court
obtains jurisdiction over a case, it retains jurisdiction throughout the case.
Sabine argues for the application of this rule to probate courts, making the
probate court's dismissal of Winnie's claims an abuse of discretion. Sabine cites
many cases in support of this proposition, though none of them squarely address
the issue before the court.[245] Winnie, however, relies heavily on a case
from the Austin Court of Appeals,[246] which it believes is
directly on point.
“In Goodman, the court addressed an issue similar to the one
we must address today: Does a probate court abuse its discretion finding it
lost jurisdiction over ancillary and pendent claims once the estate is
dismissed from the probate proceeding?[247] There, Frances
Ledbetter entered into a contract for the sale of land with Weaver.[248] The sale was conditioned upon Weaver taking
steps to develop the property.[249] Sometime after this contract was entered
into, Ledbetter died and his estate was admitted to probate.[250] His estate sued Weaver to clear title to the
property.[251] Weaver countersued the estate for specific
performance and filed a third party claim against the City of Austin, alleging
that the City had prevented him from obtaining approvals necessary to allow the
property to be developed and from meeting the conditions of the contract.[252]
“Pursuant to the estate's motion to consolidate, the probate
court exercised its ancillary and pendent jurisdiction under Section 5A of the
Probate Code and consolidated the third-party and counterclaims with the
probate proceeding.[253] After Weaver settled with the estate and the
estate administration was completed, the City moved to dismiss the remaining
claims on the ground that the probate court lacked subject matter jurisdiction.[254] The probate court
granted the dismissal and Weaver appealed.[255]
“The court of appeals upheld the dismissal, holding that
"the probate court had no discretion to continue to exercise ancillary
jurisdiction over the [City] after it dismissed the estate from the proceeding."[256] The court explained its holding by noting
that a probate court's ancillary jurisdiction arises only over a claim that
bears some relationship to the estate.[257] If the estate is dismissed from the probate
proceeding, the claim loses its ancillary nature since there is no claim within
the court's jurisdiction to which the ancillary or pendent claim relates.[258] Because it found the claims against the City
to be ancillary or pendent to nothing, the court held the probate court lost
jurisdiction.[259]
“Here, unlike the situation in Goodman, the estate was still a party to the probate proceeding when the trial
court dismissed the ancillary and pendent claims.[260] Thus, the
probate court's reliance on this case in finding that it lost jurisdiction was
misplaced. Rather, this case
involves an issue not before the Goodman court-does a probate court abuse its
discretion by holding that it loses jurisdiction over claims which it has
ancillary or pendent jurisdiction when no other claims before the court have
any relationship to those claims even though the estate administration is still
pending?
“Before analyzing the probate court's actions, it is
important to determine how it acquired jurisdiction over the claims before it.
The probate court acquired jurisdiction over the claims against the Executors
under § 5A(c) of the Probate Code which states "[a] statutory probate
court2 has concurrent jurisdiction with the district court in all actions by or
against a person in the person's capacity as a personal representative."[261] [262] The court acquired jurisdiction over the
claims against Sabine under § 5A(d), which provides that "[a] statutory
probate court may exercise the pendent and ancillary jurisdiction4 necessary to
promote judicial efficiency and economy." [263] Further, the Code
allows probate courts to exercise concurrent, pendent, or ancillary
jurisdiction over claims regardless of whether the claims are appertaining or
incident to the estate.[264] [265]
“Based on the plain meaning of Section 5A, we find that, while the court acted within
its discretion by dismissing Winnie's claims against Sabine, it abused its
discretion by finding that it lost jurisdiction over those claims while the
estate was still pending. While the probate court's exercise over Winnie's
claims against Sabine was permissive, there is no basis in the statute itself
for holding that the court lost jurisdiction over those claims once the claims
against the Executors were settled. Should the court have desired, it could
have dismissed the claims based on a finding that its continued entertainment
of them would not promote ‘judicial efficiency and economy.’ However, the
probate court did not lose jurisdiction; its jurisdiction over the claims would
still run concurrently with the district court..
“Having found that the court abused its discretion, we must determine if the error was harmless.[266] Here, it is clear that the court had the discretionary power to
dismiss the claims. Probate courts exercise their ancillary or pendent
jurisdiction over non-probate claims only when doing so aids the efficient
administration of the estate.[267] The impetus behind the
court's decision is usually, as it was in this case, the close relationship
between the non-probate claims and the claims against the estate. Once that
relationship ceases to exist due to the settlement or dismissal of the claim
against the estate, the court may find its resolution of the non-probate claims
no longer efficient.
“Here, since the
court could have dismissed the claims without finding that it lost jurisdiction,
we find the error in dismissing the claims for lack of jurisdiction harmless.
Accordingly, we affirm the judgment of the trial court.
*
* * * *
Case #8 Herring v. Welborn July 12, 2000 27 S.W.3d 132 (Tex.App.-San
Antonio 2000)
Against
the wishes of the surviving spouse who individually owned an undivided interest
in real estate, an administrator of an estate sold the real estate. In another court, the surviving spouse was
miffed, and sued a few people, including the original presiding judge. The new judge grants a restraining order
against the original judge, but later decides that the new court lacks
jurisdiction, and lacking jurisdiction, sanctions the surviving spouse. The court of appeals agrees that jurisdiction
to sue the original judge is in the original judge's court; found some of the
new judge's actions improper and reversed sanctions. A partial dissent would
affirm the sanctions and impose more sanctions because the surviving spouse
sued - a judge. The partial dissent is
emotional, but lacks an intellectual basis.
Majority Opinion by
Chief Justice Hardberger, joined by Justice López, and joined in part by
Justice Green who also dissented in part.
“This appeal arises from an order of dismissal and award of sanctions by the 81st Judicial District
Court in Wilson County. The underlying
dispute, however, stems from a sale of land ordered by the San Patricio County
Court at Law during the probate of Ethel Arnetta Herring's
("Ethel") estate. The land is located in Wilson County. One of the appellees,
Michael Welborn, has filed a motion to sanction Lemuel and his counsel for
filing a frivolous appeal.
“We
affirm the trial court's order of dismissal, but modify it to be without
prejudice. We vacate the trial court's
award of sanctions and deny Welborn's motion for appellate sanctions.
“Several individuals are mentioned throughout
this opinion:
Plaintiff / Appellant,
His Family, and His Counsel
Lemuel O. Herring Plaintiff / Appellant
Ethel Arnetta Herring Lemuel's Wife; Deceased
Katina Brauchle Daughter of Lemuel & Ethel; Former
Administratrix of Ethel's Estate
Jimmy Robert Keys Ethel's Son; Lemuel's Stepson
Paula S. Waddle Lemuel's Attorney
Defendant / Appellee /
Movant for Sanctions
Michael
Welborn Judge, San Patricio County Court at Law. This court is sitting in
probate of Ethel's estate and ordered the sale of the land.
Defendants / Appellees
Donald
Kubicek Successive Dependent Administrator of Ethel's Estate
Robert
& Cynthia Hyatt Purchasers of the Land.
Robert
Joseph The Hyatts' Attorney
Richard
Corrigan The Receiver. The San Patricio court appointed Corrigan when Lemuel
would not consummate the sale to the Hyatts.
Murray
Guaranty Title Co. Title Company and Escrow Agent.
“We refer to the San Patricio County Court at Law as the "San Patricio
court" and the 81st Judicial District
Court as the "trial court." Except for Ethel and Lemuel, we refer
to people by their surnames for convenience and uniformity. We refer to the
land in Wilson County as "the land."
“This is
the third appeal that springs from the administration of Ethel's estate.[268] In Herring I, Lemuel sued Keys in the San
Patricio court to recover community property that he alleges Ethel fraudulently
transferred to him. In Herring II, Lemuel attacked the San Patricio court's
appointment of a receiver to carry out the court-ordered sale of the land.
“Background
“The land
was the community property of Ethel and Lemuel Herring. Ethel died,
survived by Lemuel, Brauchle, and Keys.
Lemuel inherited an undivided interest in l/2 of the land; each child inherited
an undivided interest in 1/4 of the land. Brauchle eventually quit-claimed her
interest to Lemuel. The probate court later awarded Lemuel the interest held by
Keys. The trial court made this award by way of constructive trust when Keys
failed to appear at trial after Herring I was remanded to the San Patricio
court.
“During the probate of Ethel's estate, the Hyatts signed an earnest money
contract with Brauchle, the dependent administrator of Ethel's estate, to
purchase the land. As a dependent administration, the sale was subject to the approval of the San Patricio court. The
following excerpt from Herring II provides a helpful summary of the facts (and
the law the Thirteenth Court applied to those facts) after the Hyatts signed
the contract to purchase the land:
‘When Ethel died and an [administratrix] was
appointed . . . the . . . land . . . passed, along with her other assets, into
the management and control of the administrator of her estate. During the
administration of the . . . estate, the [San Patricio] court issued an
order...authorizing the administrator...to sell [the] . . . land. . . . The [administratrix] of [her] estate [then]
had the authority, by order of the [San Patricio] court, to convey the entire
community interest in the property, including Lemuel's interest . . . to a
third party. . . .
[W]hen a sale of real property is ordered and
approved by the probate court, the [administratrix] has the power and authority
to execute a deed transferring title to such property. . . . There is no additional requirement for the
holder of a community interest in the property to join in the deed. . . .’[269]
“Lemuel
refused to sign the deed, which would have allowed the transaction to close and
Brauchle to pay off the debts of the community. The record is unclear as to
the sequence of events, but the San
Patricio court soon appointed Kubicek as successor dependent administrator of
Ethel's estate. According to the Thirteenth Court:
‘[T]he
[San Patricio] court later issued an order compelling Lemuel to sign the deed .
. . . Lemuel . . . refused and . . . the present successor administrator,
Donald Kubicek, sought appointment of a receiver for the sole purpose of
completing the sale and conveyance of the property. The . . . court heard the
motion and appointed a receiver to sell the property and distribute the
proceeds, finding that the estate has present debts [that] could only be
satisfied out of the proceeds of a sale of the property, and that the estate
presently has a sales contract for the property which [Lemuel] refuses to
convey. From that order, Lemuel brings the present interlocutory appeal, . . .
challenging the right of the trial court to appoint a receiver.’[270]
“The
court concluded that the [San Patricio] court had ‘discretion to appoint a
receiver to carry out the order of sale.’[271] The estate eventually conveyed the land to
the Hyatts.
“Unsatisfied
with the outcome in the San Patricio and appeals courts, Lemuel brought suit in
Wilson County, where the land is located, against Welborn,*[272] Kubicek, Corrigan,
Joseph, the Hyatts, and Murray Guaranty. In addition to several causes of action, Lemuel sought a temporary restraining order
and a temporary injunction to enjoin the defendants from further
"encumbering, subdividing, deeding, transferring or otherwise affecting
the property." The trial court
granted the temporary restraining order.
“The defendants filed separate pleas to the
trial court's jurisdiction. In addition to questioning the court's
jurisdiction, Welborn filed a motion for
sanctions.*[273] At the hearing, the trial court granted the
defendants' pleas to the jurisdiction. The
court then awarded sanctions to the defendants on the basis of the amount they
expended in attorney's fees.
“On appeal, Lemuel raises four issues. He
asserts that the trial court erred by: 1) dismissing the case for a lack of
jurisdiction, 2) awarding sanctions, 3) denying the application for temporary
injunction, and 4) dismissing the suit with prejudice.
“Discussion
“1.
Jurisdiction of San Patricio Statutory County Court at Law
“. . . Lemuel asserts that jurisdiction over
this case lies with the trial court, not the San Patricio court. According to
Lemuel, the trial court erred in dismissing the suit.
“a.
Standard of Review
“Whether the trial court had subject matter
jurisdiction "is a question of law subject to de novo review."[274] We review the trial court's order of
dismissal by construing the pleadings in Lemuel's favor and looking to his
intent.[275]
“b.
Construing Lemuel's Pleadings
“Lemuel alleges that the San Patricio court
followed improper procedures in selling the land. In his original petition,
Lemuel asserts various causes of action to restore his ownership interest and
obtain redress for the probate court's allegedly improper court-ordered
receivership and sale:
“•declaratory judgment (Lemuel asked the trial
court to void the conveyance to the Hyatts and quiet title in favor of Lemuel);
“•cancellation of deed (while the sale was
pending, Lemuel recorded a lis pendens[276] in Wilson County; he asserts that the
transfer was improper, among other reasons, because of the lis pendens,
inadequate consideration, and inadequate notice prior to the probate court's
order of sale);
“•conversion (he seeks both legal title and
possession of the land); and
“•recovery of money paid (Joseph, Kubicek, and
Murray “Title received funds when the transaction closed).
“In addition, Lemuel seeks punitive damages
because the transfer to the Hyatts was allegedly far below market value.
“Lemuel also seeks injunctive relief against the
defendants that would bar any further action on the land. Lemuel states in his
petition that he does not want the land sold pending the outcome of Herring I
lawsuit, which dealt with fraud on the community by Ethel and her son, Keys.
The Herring II court disposed of this issue: ‘The fact that Herring has made
allegations of fraud that might affect the composition of the estate, or the
amount Herring may ultimately receive for his community interest, does not
deprive the [probate] court of its ability to carry out the prior order of sale
before the opportunity for that sale is lost.’[277]
“Other than the punitive damages and injunctive
relief, Lemuel seeks only a restoration of his ownership interest in the land.
Because the standard of review calls this court to ascertain Lemuel's intent by
construing his pleadings in his favor, there are two (possibly overlapping)
results that we believe are possible in construing his pleadings:
“•The petition filed in the trial court amounts to a collateral
attack on the San Patricio court's proceedings because alleged procedural
deficiencies are at the heart of his complaints; and/or
“•The relief sought in the trial court amounts to an
objection to the sale and a request that the sale ordered by the San Patricio
court (and other development activities) be halted.
“In order to resolve the effect of this
construction, we must examine the probate jurisdiction of the San Patricio
court.
“c. The
Probate Jurisdiction of the San Patricio Court
“San Patricio County has one statutory county
court.[278] This statutory county court has, concurrent
with the constitutional county court, "the probate jurisdiction . . . for
county courts."[279] The Probate Code requires applications and
motions to be filed in the San Patricio court or the constitutional county
court:
“In those counties where there is a statutory probate court,
county court at law, or other statutory court exercising the jurisdiction of a
probate court, all applications, petition and motions regarding probate and
administrations shall be filed and heard in such courts and the constitutional
county court, rather than in the district courts, unless otherwise provided by
the legislature. . . .[280]
“Because the statutory county court in San
Patricio County is a court ‘exercising original probate jurisdiction,’ it has
the power to hear ‘all matters incident to an estate.’[281]
“The San Patricio court's jurisdiction in
probate matters is broad, and includes the power to ‘probate wills . . . and
transact all business appertaining to estates subject to administration . . .
including the settlement, partition, and distribution of such estates.’[282] In matters appertaining, or incident, to the
estate, the San Patricio court has the power to handle "all actions for
trial of title to land incident to an estate . . . and generally all matters
relating to the settlement ... of estates."[283] Traditionally, county courts such as the San
Patricio County Court at Law did not enjoy such broad probate jurisdiction.[284] This court has recently reviewed the history
and background of probate jurisdiction and explained that the Legislature has
broadened the statutory county court's jurisdiction:
‘As amended, section 5 expanded the jurisdiction of the
county court in probate matters to allow it the power to hear all matters
incident to an estate, including, but not limited to, an action to construe a
will . . . .’[285]
“Yet, a
pending probate matter is necessary to invoke that power:
‘Section 5's clause "matter incident to an
estate," however, will not create jurisdiction for the county court in the
absence of a pending probate matter. . . . Stated differently, before a matter
can be regarded as incident to an estate over which the county court acting as
a probate court would have jurisdiction, a probate proceeding must actually be
pending. . . . [A] court empowered with probate jurisdiction may only exercise
its probate jurisdiction over matters incident to an estate when a probate
matter proceeding related to such matter is already pending. . . .’[286]
“Now,
‘under the current statutory scheme of probate jurisdiction, a district court
can exercise jurisdiction over a matter incident to an estate where no probate
court has otherwise acquired jurisdiction over the estate.’ [287]
“The desire to ‘provide a quick and full
settlement of a decedent's estate in a single proceeding’ forms the
underpinnings of the Legislature's intent to broaden the scope of statutory
county court jurisdiction.[288]
“Lemuel argues that ‘substantial authority
exists for the filing of a lawsuit regarding real estate title in a district
court, particularly [in] the county . . . where the property is located, even
while a probate remains open.’ The cases to which he cites, however, are
distinguishable from the facts of the present case.
“(1)
Carroll v. Carroll-Independent v. Dependent Administration
“Lemuel cites Carroll v. Carroll to support an
expansive view of the district court's jurisdiction during the pendency of a
probate proceeding in statutory county court.[289] Yet, Carroll involved a constitutional
county court, which has concurrent probate jurisdiction with the district court
when there is no statutory county court that has been created by the
Legislature to exercise probate jurisdiction.[290] Because Carroll
involved an independent administration, further action by the county court was
not permitted because the estate was being administered independently.[291] Unlike Carroll, the present case involves a
dependent administration in a statutory county court.
“(2)
Goodwin v. Kent-In Which Court Were the Pleadings Filed First?
“In Goodwin v. Kent, the appeals court
considered which court (the County Court at Law of Smith County or the district
court in Rusk County) had dominant jurisdiction to resolve a land title
dispute.[292] The statutory county court admitted the
decedent's will to probate in 1974 as an independent administration.[293] No showing had been made that the estate
administration was closed.[294] In 1987, Goodwin petitioned the 4th District
Court of Rusk County (where the land was located) to determine his ownership in
one of the decedent's tracts of land.[295] Later that year, Glass petitioned the Smith
County court to determine the title of the land.[296] Glass then filed a plea in abatement and
motion to transfer venue from Rusk County to Smith County.[297] The following month, Goodwin filed a Plea in
Abatement in the Smith County court and alleged that the district court in Rusk
County had dominant jurisdiction.[298] Judge Kent (of Smith County) overruled
Goodwin's plea in abatement; Goodwin then petitioned the Tyler Court of Appeals
to issue a writ of mandamus to compel the abatement.[299]
“The appeals court found that both courts have
‘at least the power to hear and decide a title issue.’[300] The appeals court stated that the county court
had a duty to dismiss the petitions that Goodwin filed in Smith County.[301] Yet, the court apparently*[302] reached this result because the title dispute
had not been filed previously in the Smith court.[303]
“Lemuel states in his petition that he "had
objected throughout the probate proceedings in San Patricio County to the sale
of the property." In addition, when the probate court issued an order to
sell Lemuel's land, followed by an order approving the sale, he (as an
interested party) could have complained then the sale was improper. Finally,
Lemuel's counsel conceded during oral argument that issues, such as whether
personal property should have been sold first in order to pay the estate debts,
remain unresolved. These reasons, in light of the San Patricio court's
continuing role in supervising the dependent administration[304] of Ethel's estate, support the trial court's
dismissal of Lemuel's suit.
“3)
Crawford v. Town of Flower Mound-A Statutory Limit to Probate Jurisdiction
“Crawford v. Town of Flower Mound involved a
suit by taxing entities to recover past due ad valorem taxes.[305] The Texas Tax Code requires taxing entities
to bring suit for delinquent property tax in the county where the real estate
is located.[306] The Crawford court construed this provision
as providing dominant jurisdiction to a court in which the land is located over
the county of probate.[307] The court stated merely that the probate
provisions of sections 5 and 5A ‘do not extend to judgments and foreclosures
for delinquent property taxes on property located outside the county of the
probate proceeding.’[308]
“In the present case, Lemuel cites the mandatory
venue provision for suits involving land to support maintaining his suit in
Wilson county.[309] Yet, ‘the requirement that suit be brought in
the county where the land is located is one of venue or privilege, and not of
jurisdiction, and it may be waived.’[310] The jurisdictional
requirement of the Tax Code makes good policy sense because it allows taxing
authorities to be able to litigate in one county.[311]
“4)
Gaynier v. Ginsberg-The District Court Retains Jurisdiction Over Some Matters
“In Gaynier v. Ginsberg, the Dallas Court of
Appeals addressed which type of court (district or county) had jurisdiction in
a suit that sought to remove a trustee and impose a constructive trust.[312] The appeals court concluded that because
district courts have jurisdiction to remove trustees, the district court should
maintain jurisdiction over the suit.[313] The court also explained that "[w]hile
the amendments to the Texas Constitution and the Probate Code did broaden the
jurisdiction of probate courts, they did not take away the jurisdiction of the
district courts."[314] "[A]s far as [the] action involves the
imposition of a constructive trust, it was properly brought in the district
court." [315] Although Lemuel sought imposition of a
constructive trust when Herring I was on remand to the San Patricio court, he
does not seek that remedy in the present case. Also, the facts suggest that
Gaynier involved an independent administration, which may have affected the
outcome, as discussed above in Carroll.[316]
“d. The
Trial Court Did Not Err in Dismissing Lemuel's Claim
“The trial court did not err in dismissing
Lemuel's claim for a lack of jurisdiction for several related reasons.
“(1) The
Probate Authority of the San Patricio Court Encompasses This Lawsuit
The Legislature has the power to increase or
diminish statutory county court and district court probate jurisdiction. To
this end, the Legislature has conferred broad jurisdiction upon the San
Patricio court, a statutory county court empowered to sit in probate. Once a
probate proceeding is under way, the statutory county court's authority to deal
with all matters incident to an estate is triggered.[317] "In other words, the pendency of a
probate proceeding is a requisite for a court's exercise of jurisdiction over
matters related to it."[318] The broad authority of the San Patricio
court, which is ongoing because of the continuing administration of Ethel's
estate, exists to the exclusion of the Wilson County district court in matters
that are incident to the estate.