Texas Estate, Will, Trust, and Probate Case Review
Course 1, Current Cases on Trial and Appellate Court Jurisdiction
© A. Hawkins 2000
CLE Course Provider
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Table of Contents

Part 1. Appellate Jurisdiction and Finality of Orders

Case 1.1 In re Murphy, July 29, 1999, 1 S.W.3d 171 (TexApp Fort Worth 1999)

•Majority Opinion by Justice Richards, joined by Justice Day

•Dissenting Opinion by Justice Brigham

Case 1.2 Estate of Navar v. Fitzgerald February 17, 2000, 14 S.W.3d 378 (TexApp El Paso 2000)

Case 1.3 Woollett v. Matyastik February 17, 2000 (TexApp Austin 2000)

Case 1.4 Columbia Rio Grande Regional Hospital v. Stover April 28, 2000 (TexApp -Corpus Christi 2000)

Case 1.5 Logan v. McDaniel, June 15, 2000, (TexApp - Austin 2000)

Part 2. Trial Court Probate Jurisdiction

Case 2.1 Columbia Rio Grande Regional Hospital v. Stover April 28, 2000 (TexApp -Corpus Christi 2000)

Case 2.2 Garza v. Rodriguez, January 26, 2000 (TexApp - San Antonio 2000)

Case 2.3 Enax v. Noack, January 31, 2000 (TexApp Houston[first dist.] 2000)

Case 2.4 Shuld v Dembrinski, March 17, 2000, 12 S.W.3d 485 (TexApp - Dallas 2000)

Case 2.5 Jansen v. Firzpatrick, March 2, 2000 (TexApp Houston [14th district] 2000)

Case 2.6 Phifer, administrator of the Estate of Bailey v. Nacogdoches County Central Appraisal District April 25, 2000 (TexApp Tyler 2000)

•Majority Opinion by Justice Worthen, joined by Justice Hadden •Dissenting Opinion by Chief Justice Murphy

Case 2.7 Sabine Gas Transmission Company, et al. v. Winnie Pipeline Transmission Company and Southeastern Marketing Company, et al March 2, 2000 (TexApp Houston [14th dist.] 2000)

Case 2.8 Herring v. Kubicek, July 12, 2000, (TexApp 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

A Note on Probate Jurisdiction

Texas, probate jurisdiction is not a subject for the timid. There are hundreds of published appellate opinions on Texas probate jurisdiction since probate jurisdiction was “reformed” in 1973. It is not an easy subject. A surprisingly large portion of Texas probate litigation is void because it is in courts which lack 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 jurisdiction law is complicated. Some law is unwritten and undecided. In some cases, the appellate courts appear to be guessing whether they have jurisdiction to hear the appeal. Sometimes they seem to be guessing which trial court has jurisdiction. Sometimes the judges on an appellate court disagree among themselves. Texas estate jurisdiction has been described as a “nightmare”*[1] 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?

Keeping Score

Some might want to note the number of cases in which:

1. The court of appeals finds that an appealed probate order is final and it has jurisdiction to hear the appeal.

2. The court of appeals finds that an appealed probate order is interlocutory and it lacks jurisdiction to hear the appeal.

3. The court of appeals finds that a probate order that was not appealed is final and may no longer be contested.

4. The court of appeals finds that a probate order that was not appealed is interlocutory and may be contested.

5. The trial court had jurisdiction to hear what it heard.

6. The trial court did not have jurisdiction to hear what it heard.

7. The party sued the judge, but the court in which the suit was filed lacked jurisdiction.

8. The judge sued the party and the lawyer for the party for suing the judge, but the court in which the suit was filed lacked jurisdiction.

9. The court of appeals claims that judicial efficiency is the goal, thus demonstrating a sly sense of humor.

Texas probate jurisdiction is not simple or rational. Much is unclear and unsettled. It is a mess.*[2] 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.

Author’s Note

Most citations by the court are moved from the opinions to footnotes in order to enhance readability. Commentary is provided, both in the main text and in footnotes. Footnotes by the teacher are indicated with an asterisks [*] in the text and in the footnote.*[3] Footnotes without an asterisks [*] are either footnotes by the courts or the courts citations moved to footnotes. Some footnotes by the court and some repetitive citations are omitted.*[4] Some names are shortened to first or last names.*[5]

The Course

Part 1. Appellate Jurisdiction and Finality of Orders

When an appeal of a probate order is filed, the court may decide that the order is interlocutory, not final, so it does not have jurisdiction. If you fail to appeal, the appellate courts may decide that it was a final order. Since it was not appealed, it is too late to challenge the order. The rules are not clear. Five recent cases suggest that the choice may be wrong, no matter what it is. We begin with In re Murphy[6] and Estate of Navar v. Fitzgerald[7] in which the Forth Worth and El Paso courts of appeals decide that it is too soon to appeal because an order is interlocutory rather than final, before reviewing Woollett,[8] Columbia[9] and Logan[10] in which the Austin and Corpus Christi courts of appeals hold that arguably interlocutory orders were final, and having not been appealed could, no longer be challenged.*[11] We also review the dissent in Murphy.

1.1 In re Murphy 1 S.W.3d 171 (TexApp-Fort Worth 1999, no pet.)

Majority Opinion by Justice Richards, joined by Justice Day

“Dottie Murphy and Frances Marie Murphy have appealed the trial court's order transferring the business of the ward's guardianship from Wichita County to Harris County under section 612 of the probate code. [12] . . . [W]e conclude that the transfer order is not final and appealable. . . . . [W]e dismiss the appeal for want of jurisdiction.

“A final order of a court that exercises original probate jurisdiction is appealable to this court.[13] To be final and appealable, the order need not fully dispose of the entire proceeding.[14] Instead, the reviewing court applies the following test to determine whether the order is final and appealable:

‘If there is an express statute . . . declaring the phase of the probate proceedings to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.’[15]

“The probate code does not provide that a section 612 transfer order is final and appealable; thus, the order is not final unless it disposes of all parties and issues at a particular phase in the ward's guardianship proceeding. In this case, the transfer order is not final and appealable because it did not dispose of any parties or issues in any particular phase of the guardianship. The order just changed the venue in which those issues and parties will be decided.[16]

“Appellants cite several cases in which venue rulings concerning guardianships were appealed before the entire guardianship proceeding was disposed of.[17] But all of these cases predate Crowson, and, with one exception, they also predate the enactment of legislation prohibiting an interlocutory appeal from a venue determination.[18] In addition, none of the cases discuss the appellate jurisdiction issue.*[19]

“At oral argument, appellants contended the Crowson test is comprised of two components: (1) does the order being appealed completely finish a distinct, separate phase of the guardianship proceeding; and (2) if so, did the order involve a substantial right? If both of these elements are present, appellants contend the order at issue is final and appealable.

“Appellants also devote a significant portion of their argument to their contention that the transfer order is final and appealable because it affects a substantial right. We do not reach this issue, however, because, as we have discussed, the transfer order did not dispose of any phase in the ward's guardianship proceeding. There is case law to the effect that whether a probate order adjudicates a substantial right factors into the finality determination.[20] Most of these cases predate Crowson, however, and they do not discuss the Crowson test. Crowson itself discusses the "substantial right" language but does not include it in the test for determining finality.[21] Consequently, we question whether the "adjudication of a substantial right" inquiry is still viable post-Crowson. Moreover, at least one Texas court has held an order granting or denying a motion to transfer under section 608 of the probate code does not affect the substantial rights of any party and therefore is not final.[22]

“Appellants also argue that, if the transfer order itself is not final, they will not be able to appeal it until the guardianship is terminated, which may not be until the ward dies. By making this argument, appellants say too much. If the guardianship proceeding itself is a single phase, the transfer order is interlocutory and not appealable. Conversely, if a motion to transfer could be a phase in a guardianship proceeding (which it is not, in this case), then a guardianship has multiple phases. Appellants can appeal the transfer order after entry of any order disposing of all issues and parties in any one of those phases.[23] The fact that the order would be appealed to a Houston appellate court rather than this court should not factor into the jurisdiction determination.

“Because the transfer order at issue did not dispose of any parties or issues in any particular phase of the ward's guardianship proceeding, it is not final and appealable, and we lack jurisdiction to review it. Accordingly, we dismiss the appeal for want of jurisdiction.” In re Murphy[24]

Dissenting Opinion by Justice Brigham

“I would hold that the trial court's order transferring the business of the ward's guardianship from Wichita County to Harris County under section 612 is final for purposes of appeal; therefore, I respectfully dissent.

“The case law regarding the appealability of probate orders is somewhat unsettled.[25] Because the legislature cannot conceivably identify in advance what types of orders should be immediately appealable or predict when in a particular case an earlier rather than later review of an interlocutory order is compelling, the question of whether an order is final for purposes of appeal is frequently left to the courts.[26] In making such a determination in the context of probate law, we have some guidance.

To authorize an appeal of a probate matter, it is not necessary that the order to be appealed be one that fully and finally disposes of the entire probate proceeding; it must be one which finally disposes of and is conclusive of the issue or controverted question for which that particular part of the proceeding is brought.[27] Absent an express statute declaring the phase of the probate proceeding to be final and appealable, the supreme court has determined that "if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory."[28]

“The Corpus Christi court determined that a ‘substantial right’ makes the probate order appealable.[29] The ‘substantial right’ language is merely one of the factors for determining whether a probate order is appealable, but equally important is the supreme court's language that the order must dispose of all issues in the phase of the proceeding for which it was brought.[30]

“Although the majority acknowledges that an order need not fully dispose of the entire proceeding to be final and appealable, instead of applying the Crowson test, it appears to apply the general rule that appellate jurisdiction exists only in cases in which a final judgment has been rendered that disposes of all issues and parties in the case.[31] But the term "final judgment" applies differently in different contexts.[32][33]

“In Crowson, the "proceeding" was the heirship determination.[34] The "order in question" was a summary judgment order, determining that the claimant Crowson was not an heir.[35] In holding that the summary judgment against Crowson was interlocutory, and thus, not appealable absent a severance, the supreme court recognized that the summary judgment was logically a part of the heirship determination, but it did not dispose of the heirship claims of all the interveners.[36] Therefore, the summary judgment did not dispose of that whole "particular phase" of the probate proceeding.[37] Also, the court in Crowson took into consideration the express probate code provision that a judgment in a proceeding to declare heirship is final and appealable.[38] [39] In other words, the court recognized that a determination that Crowson was not an heir could not be a final order where the issue of who the heirs were had not yet been addressed and the pertinent statute provided that a judgment identifying the heirs was final and reviewable.[40]

“Here, the "proceeding" is the guardianship, and the "order in question" is the order transferring the business of the guardianship to Harris County. A guardianship is not an ordinary lawsuit, but is an ongoing proceeding in which various orders are made from time to time. Although there is no express statute providing that a judgment in an ongoing guardianship is final and appealable, as in a suit to determine heirship, it is also worthy to note that there is no express provision that an order transferring the business of a guardianship is not subject to interlocutory appeal.[41]

“Because the order transferring the business of the guardianship fully disposed of a "particular phase" of the guardianship, was conclusive of the question for which that part of the proceeding was brought, and left no issues outstanding with regard to the forum of the core guardianship, it is a final order for purposes of appeal.

“If the transfer of the core guardianship proceeding is not appealable now, when would it be appealable? The majority opinion, I believe, disregards the supreme court's policy to avoid constructions that defeat bona fide attempts to appeal.[42] It is for these reasons that I dissent. In re Murphy[43]

1.2 Estate of Navar v. Fitzgerald, February 17, 2000 , 14 S.W.3d 378 (TexApp-El Paso 2000, no pet.)

“Based upon an application to show cause filed by movant James Fitzgerald, the El Paso County Probate Court ordered Jose L. Navar, independent administrator of the estate of Virginia B. Navar, to post bond in the amount of $652,905 or face removal as administrator. . . .

“The Texas Probate Code provides:

“All final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeals.”[44]

“Thus, if the order setting bond is a "final" order, then it is appealable and this court has jurisdiction. If not, the appeal must be dismissed.

“To be final and appealable, a probate order need not fully dispose of the entire proceeding.[45] Because probate administration is a continuing process, its nature contemplates that future decisions must be based on intermediate decisions. Interlocutory appeal is necessary to provide practical review of erroneous, controlling intermediate decisions before their consequences become irreparable.[46] The Texas Supreme Court in Crowson v. Wakeham expressed the test for appealability as:

“If there is an express statute . . . declaring the phase of the probate proceedings to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.[47]

“Despite this apparently simple test expressed by the Supreme Court, the law regarding appealability of probate orders is less than well-settled.[48] Crowson did not expressly overrule prior case law on appealability; indeed it quoted with approval a frequently-cited court of appeals case allowing interlocutory appeals of probate orders adjudicating a "substantial right."[49] The courts of appeals are split as to whether the "substantial right" test remains a valid inquiry after Crowson.[50]

“Determining the appealability of the probate order here, however, does not require us to choose sides in this debate, as the order setting the executor's bond is not final and appealable under any formulation of the test. We find that the order is part of that portion of the estate's administration dealing with satisfying creditor's claims, there is nothing in this record to indicate such claims have been fully disposed of,*[51] nor has the challenged order been severed from the larger administration. Moreover, the order does not even remove Jose Navar as executor of the estate, but only provides that he may be removed if bond is not posted as required. And no substantial right has been adjudicated, as Navar could continue to act as executor until such time as he was removed by further order of the court.[52] No order removing Navar as executor is contained in this record, and his notice of appeal specifically addresses the ‘'Order Setting Bond' entered by the Probate Court on August 2, 1999. . . .’ The order cannot even be said to have finally adjudicated the amount of the bond, as the probate court may revisit that issue at any time during the administration of the estate.[53] We conclude the order appealed from in this case is interlocutory and is not a final order under the Probate Code. . . .

“We lack jurisdiction to hear this appeal, and therefore grant appellee's motion and dismiss the appeal.” Estate of Navar v. Fitzgerald[54] ”

Compare Navar with Woollett v. Matyastik[55] which was decided by the Austin Court of Appeals on February 17, 2000, the same day as Navar.

1.3 Woollett v. Matyastik February 17, 2000 (TexApp-Austin 2000)

“Bill filed an Application for Appointment of Guardian of the Estate and Person of Rose Matyastik July 7, 1998 in the Milam County Court. On July 20, both appellants filed separate contests to Bill's application. The county court signed an order transferring ‘this guardianship’*[56] to the district court ‘in accordance with Texas Probate Code 606.’ On September 1, Bill filed an application to be appointed the temporary guardian of the person and estate of Ms. Matyastik, and also sought a temporary restraining order against appellants.[57] On the same day, the district court signed a temporary restraining order against appellants, appointed an attorney ad litem for Ms. Matyastik, and appointed Bill the temporary guardian of the person and estate of Ms. Matyastik pending the hearing on the contest of Bill's application to be appointed temporary guardian. Following a hearing on Bill's application, the district court signed an order on September 28 that appointed Bill the temporary guardian, imposed a temporary injunction against appellants, and set a hearing for determining the permanent guardian. Among other matters, the order empowered Bill to expend up to $50,000 of the Ward's estate for the care and maintenance of the Ward, including payment of expenses associated with this guardianship proceeding, without further Court approval. In the event that the Temporary Guardian shall be required to expend more of the Ward's estate than the foregoing $50,000 he shall file a request for such expenditures with this Court and the same shall be considered approved and authorized unless the other parties hereto shall within 10 days file a contest and request for hearing.

“The September 28 order became final.

“On March 16, 1999, Bill filed an Application for Payment of Expenses seeking $13,543.12 in attorney's fees for ‘expenses arising from the administration and management’ of the estate. The district court signed the order authorizing the expense payment on the same day. In this appeal, appellants, also children of Ms. Matyastik, challenge the district court's jurisdiction to render the March 16 order, and the approval of the application for payment when Bill presented no supporting evidence.” *[58] Woollett v. Matyastik[59]

At this point, in a footnote, the Austin court of Appeals states, “appellants complain of the appointment of Bill as the temporary guardian. The September 28, 1998 order appointing Bill temporary guardian is a final, unappealed order. We cannot address the validity of that order.” Woollett v. Matyastik[60]

1.4 Columbia Rio Grande Regional Hospital v. Stover April 28, 2000 (TexApp -Corpus Christi 2000)

Columbia involves both appellate jurisdiction and trial court jurisdiction. Appellate jurisdiction is reviewed here. The Columbia facts are discussed in more detail in the trial court jurisdiction section.

“The final order barring Columbia's claim was appealable to this Court.[61] [62] Because no direct appeal of the September 24, 1997, probate order was taken by Columbia, it cannot now attack the order collaterally.” [63] Columbia Rio Grande Regional Hospital v. Stover[64]

1.5 Logan v. McDaniel, June 15, 2000, (TexApp - Austin 2000)

“Samuel Downing McDaniel sued Jill M. Johnson Logan, individually and as independent executrix of the estate of Jim Pearce Johnson, in Travis County to recover attorney's fees for representing Johnson in guardianship proceedings in Hays County that preceded Johnson's death. Relying on an order issued during the guardianship proceedings that held Johnson had the capacity to hire his own attorney, the Travis County Probate Court granted partial summary judgment in favor of McDaniel. That portion of the probate proceeding was severed, and Logan, Johnson's daughter and independent executrix of his estate, brings this appeal. She urges that McDaniel had no authority to represent her father and that the order issued by the Hays County court during the guardianship proceedings was interlocutory in nature and therefore could not have collateral estoppel or res judicata effect. We will affirm.

“In August 1996, Johnson suffered what his doctors characterized as a massive stroke. Believing the stroke rendered her father unable to competently manage his own affairs, Logan initiated guardianship proceedings in October 1996 in the probate court*[65] of Hays County seeking to have her father declared incapacitated and to have herself appointed guardian. On October 17, 1996, an attorney ad litem was appointed to represent Johnson. Johnson rejected the representation of court-appointed counsel, however, and on October 31, 1996 he signed a legal services contract hiring McDaniel, a personal friend, to represent him. McDaniel filed pleadings on behalf of Johnson contesting Logan's request to be appointed guardian.

“In response, pursuant to Rule 12 of the Texas Rules of Civil Procedure, Logan filed a motion for McDaniel to show his authority to represent Johnson (the Rule 12 motion).[66] At a hearing on the Rule 12 motion, McDaniel called Johnson to the stand to explain why he had hired his own attorney. In its order on the motion, the court ruled "that at the time Mr. Johnson hired Mr. McDaniel to represent him, Mr. Johnson had sufficient capacity to do so and therefore that Mr. McDaniel has shown authority at that time to represent him." That order was never severed or appealed.

“The Hays County court later appointed Johnson's son as temporary guardian of the estate and ward. The guardianship proceeding was never closed because Johnson died on January 6, 1998, before a final order had been rendered on the guardianship application. Johnson's will was filed in the Travis County Probate Court.[67] McDaniel made a claim against the estate for $76,542 in attorney's fees earned in representing Johnson during the contested guardianship proceeding. The estate denied the claim, whereupon McDaniel filed suit in the Travis County Probate Court seeking judgment to enforce his claim for attorney's fees. He filed a motion for partial summary judgment seeking a determination that (1) at the time Johnson entered the legal services agreement he had legal capacity to contract, and (2) the contract authorized McDaniel to represent Johnson. The trial court granted partial summary judgment in favor of McDaniel, and the claim was severed from the rest of the probate proceedings to allow Logan to bring this appeal.

“. . . McDaniel invoked the doctrines of res judicata and collateral estoppel, asserting that the matters resolved by the Hays County Probate Court's order on the Rule 12 motion should not be relitigated in the present cause. In response to McDaniel's motion for summary judgment, Logan submitted doctors' letters and other evidence disputing McDaniel's assertion that Johnson was competent to retain his own attorney when he signed the contract for legal services with McDaniel. That evidence is sufficient to raise a fact issue on the matter, precluding summary judgment, unless the Hays County order on the Rule 12 motion prevents redetermination of the matter of Johnson's capacity to retain his own counsel. . . .

“McDaniel sought summary judgment on both collateral estoppel and res judicata grounds. Though the parties refer to these doctrines interchangeably, they are, in fact, distinct doctrines with different applications. Res judicata, also known as claim preclusion, prevents relitigation of a claim or cause of action that has been finally adjudicated in a prior suit, as well as related matters that, with the use of diligence, could have been litigated in that suit.[68] Collateral estoppel, or issue preclusion, prevents relitigation of particular issues already resolved in a prior suit.[69] It is the latter doctrine that applies in this case. More precisely, McDaniel attempts an offensive use of collateral estoppel, in which a plaintiff seeks to stop a defendant from relitigating an issue that the defendant has previously litigated and lost.[70] [71]

“To establish the elements of collateral estoppel, a party must show that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the prior action; (2) those facts were essential to the judgment in the prior action; and (3) the parties were cast as adversaries in the prior action.[72] The first and third elements are easily met here. McDaniel's motion sought judgment that (1) at the time Johnson entered the legal services agreement, he had legal capacity to contract; and (2) the contract authorized McDaniel to represent Johnson. Both matters were decided in McDaniel's favor in the order on the Rule 12 motion.[73]

“The parties to this action were also both cast as adversaries in the prior proceedings. The opposing parties in the guardianship proceeding were Johnson and Logan. Logan makes much of the fact that McDaniel, acting as Johnson's attorney, was not a party to the prior proceeding. However, it is only necessary that the party against whom the plea of collateral estoppel is being asserted be a party or in privity with a party in the prior litigation.[74] In the guardianship proceeding the Rule 12 motion was filed by Logan, and it is Logan against whom the doctrine of collateral estoppel is asserted now. McDaniel has satisfied this element of collateral estoppel.

“This case turns, then, on the second element of collateral estoppel: whether the facts sought to be litigated in the present action were essential to the judgment in the first action. Logan argues that because the order on the Rule 12 motion was merely interlocutory and the guardianship proceeding never resulted in a final judgment in that action, the doctrine of collateral estoppel cannot apply. Outside the context of probate proceedings, orders on Rule 12 motions have been held interlocutory and thus not appealable.[75] McDaniel counters that orders that would be considered interlocutory in other proceedings are often deemed final and appealable in the context of a probate proceeding.

“Guardianship proceedings are governed by the Probate Code and are generally conducted in county probate courts.[76] All final orders of any court exercising original probate jurisdiction are immediately appealable to the courts of appeals.[77] To be deemed final and appealable, an order rendered in a probate proceeding need not finally dispose of the entire proceeding.[78] A probate proceeding consists of a continuing series of events, in which the probate court may make decisions at various points in the administration of the estate on which later decisions will be based. The need to review controlling, intermediate decisions before an error can harm later phases of the proceeding has been held to justify modifying the "one final judgment" rule.[79]

“It has been held that an appealable order in a probate proceeding must adjudicate conclusively a controverted question or substantial right.[80] The continued viability of the "substantial right" test is apparently in some doubt.[81] Be that as it may, barring a statute making an order in a particular phase of a probate proceeding final, the supreme court has cautioned that if pleadings in that phase raise other issues or parties that are not disposed of, the order is interlocutory.[82] Regarding the appealability of a probate order, the Supreme Court has stated:

‘If there is an express statute . . . declaring the phase of the probate proceeding to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.[83]

“There is no express statute providing that an order on a Rule 12 motion is final and appealable in a probate proceeding. The question, then, is whether the Rule 12 order here disposed of each issue raised in the pleadings for that proceeding, or whether the order conclusively disposed of that phase of the proceeding.

“The Rule 12 motion filed by Logan asked the Hays County Probate Court to require McDaniel to show authority to represent Johnson in the guardianship proceedings she had initiated. In evidence at the hearing was the power of attorney her father had previously executed in Logan's favor, a later document he signed revoking the power of attorney, the legal services contract, and correspondence and affidavits from doctors who believed Johnson was not competent to hire his own attorney. Johnson testified on his own behalf as to why he had retained McDaniel to represent him. The court's order addressed only the narrow issue raised in the Rule 12 motion, ruling that Johnson had sufficient capacity to hire McDaniel when he did so and therefore that McDaniel had authority to represent Johnson in the ongoing guardianship proceedings. Because no issues raised in the pleadings pertaining to the Rule 12 motion remained unresolved, we hold that the order concluded a discrete phase of the guardianship proceedings in the probate court.

“We note that such a holding has been anticipated and approved in a similar case. In Coleson v. Bethan,[84] the court of appeals held that an order continuing appointment of an attorney ad litem in a guardianship proceeding was a final and appealable order. The Fort Worth court also noted that the same result could arise in a Rule 12 motion if someone questioned the "capacity" of a client to hire an attorney to defend against a guardianship proceeding.[85] That is precisely what happened in this case.

“Because the Hays County order concluded a discrete phase of the guardianship proceeding, that order was final and appealable, not interlocutory. The resolution of the issues in that earlier order was the basis of the motion for partial summary judgment filed by McDaniel against Johnson's estate in Travis County. Therefore, McDaniel has satisfied the second prong of the doctrine of collateral estoppel.

“We are satisfied that McDaniel has shown that (1) the issues sought to be litigated in McDaniel's motion for partial summary judgment were fully and fairly litigated in the hearing and order on the Rule 12 motion in the prior guardianship proceeding; (2) the order concluded a discrete phase of that guardianship proceeding and so amounted to an appealable judgment in the first action, and the issues sought to be litigated in the prior action were essential to that judgment; and (3) the parties were cast as adversaries in the earlier action. We therefore hold that the doctrine of collateral estoppel prevents Logan from relitigating the issue of her father's capacity to retain his own counsel in the guardianship proceeding. We affirm the Travis County Probate Court's grant of summary judgment in favor of McDaniel.” Logan v. McDaniel,[86]

Part 2. Trial Court Probate Jurisdiction

2.1 Columbia Rio Grande Regional Hospital v. Stover April 28, 2000 (TexApp -Corpus Christi 2000)

Columbia[87] shows how a creditor may turn a claim against an estate into a liability to the estate, a remarkable feat which is easy 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. We quote extensively from the opinion because merely reporting on it doesn’t do it justice.

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. Many fail to pick their way through them. 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. Relax, take a deep breath, and proceed with more from the Corpus Christi court of appeals in Columbia.

“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.[88] 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.[89] 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.[90] 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.[91] 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.[92] 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. Id.

“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.[93] 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.’[94]

“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,[95] it is equally clear that courts have determined the legislature did not intend for the independent administrator to be completely free from judicial supervision.[96] 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.[97]

“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. [98] 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. Id. at 5(e). This is a general grant of authority to statutory county courts. [99] 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."[100] This statute codifies case law.[101]

“Columbia's reliance on Carter v. Brady[102] 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.[103] 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." [104] 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. . . ."[105] 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.[106] 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.[107] [108] Because no direct appeal of the September 24, 1997, probate order was taken by Columbia, it cannot now attack the order collaterally.[109]

“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.” Columbia Rio Grande Regional Hospital v. Stover.[110]

2.2 Garza v. Rodriguez, January 26, 2000 (TexApp - San Antonio 2000, no pet.)

“Is that enough fun with trial court jurisdiction? No. There is more. There is always more. Garza v. Rodriguez[111] from the San Antonio court of appeals is interesting. 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 stated in the will.” Garza does not discuss whether the issue was plead, litigated , considered by the county court prior to the order or whether the constitutional county court had proper jurisdiction over the parties or subject matter. The possibility that the order was a superfluous and erroneous attempt to recite the will provisions by a draftsman who was clueless about a fee simple subject to a springing executory interest is not discussed. 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[112] *[113] an order of final probate settling, approving, and closing Pena's estate was entered in the county court.[114] 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. . . . .’*[115]

“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.

“On October 19, 1984,[116] 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[117] 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.[118] Appellants further assert that the district court had jurisdiction to act because their pleadings requested the imposition of a constructive trust. [119]

“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.[120] 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.[121] 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*[122] 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.[123] In most counties in Texas, the constitutional county courts ("county courts") act as the probate court.[124] 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.[125] 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.[126] The construction of a will or issues of title were thus general civil matters within the jurisdictional reach of the district courts.[127] [128]

“In 1973,[129] the county court's probate jurisdiction was expanded when the Legislature undertook a two-step reform of probate jurisdiction.[130] First, it proposed an amendment to article 5, section 8 of the constitution authorizing a statutory revision of probate jurisdiction.[131][132] 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.[133] 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.[134] 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.[135] 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.[136] [137]

“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[138]

“In Crawford, a will was admitted to probate in constitutional county court in 1968.[139] 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.[140] The district court set aside the will, determined heirship, partitioned the real property, and ordered an accounting.[141] 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.[142] 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.[143] 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.[144]

“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,[145] 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.[146]

“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]." [147] 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.[148] 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.[149]

“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.*[150] The final order, whether by mistake or design, unambiguously granted Santiago fee simple absolute title to the remainder of Pena's estate. That order was not challenged. 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.[151] An action to undo an incorrect former judgment must be brought in the court rendering the judgment or in a higher court.[152] Because the instant action seeks to undo the prior probate order, the district court properly determined it did not have jurisdiction.[153]” Garza v. Rodriguez,[154]

Is that enough fun with trial court jurisdiction? No such luck. There is yet more. We turn to Enax v. Noack.[155] The court of appeals finds subject matter jurisdiction of a county court at law to impose a constructive trust in a guardianship. 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 holds belief that the legislature increased the jurisdiction of guardianship courts while specifically intending to make no such change. Probate litigation is full of surprises.

2.3 Enax v. Noack, January 31, 2000 (TexApp Houston[first dist.] 2000)

“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 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.[156] 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.[157] The rationale behind these decisions is based on an interpretation of Probate Code section 5A:

Constitutional County Court and Statutory County Court at Law

Statutory Probate Court and District Court

§ 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.

§ 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.[158] [159]

“Before 1993, section 5A applied to both probate and guardianship proceedings.[160] In 1993, the legislature rewrote the guardianship laws and separated them into a new chapter XIII of the Probate Code.[161] 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

Guardianship

§ 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.

§ 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.

TEX. PROB. CODE §§ 5A(a), 607(a).

STATUTORY PROBATE COURT AND DISTRICT COURT PROVISIONS

Probate

Guardianship

§ 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.

§ 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.[162]

“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.[163] 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.[164]

“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.[165] [166] 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 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*[167] 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.[168] We disagree with Lloyd's interpretation of W.C. Banks.

“In W.C. Banks, a visiting judge conducted a bench trial.[169] 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.[170] 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.[171]

“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.

2.3 Shuld v Dembrinski, March 17, 2000, 12 S.W.3d 485 (TexApp - Dallas 2000, no pet.)

Another trial court jurisdiction case is Shuld v Dembrinski, a March case from the Dallas Court of Appeals vacating an order dismissing and reinstate litigation between siblings in the county court at law on the grounds that jurisdiction was not exclusively in the probate court. The District Court had jurisdiction. Therefore the County Court at Law had jurisdiction. Therefore, whether the Probate Court had jurisdiction was irrelevant. Even if Probate Court had jurisdiction, it wasn’t exclusive. The result is that the parties, older and more experienced, return to the beginning with the case back where it started.

“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. 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.[172] A statutory probate court in Dallas County has the general jurisdiction of a probate court as provided in section 25.0021.[173] Section 25.0021 provides that a probate court has the general jurisdiction as provided in the Texas Probate Code.[174]

“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."[175] Further, all courts exercising original probate jurisdiction "shall have the power to hear all matters incident to an estate." [176] Matters incident to an estate include the determination of heirship and all actions for trial of title to land.[177]

“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.[178] In other words, the pendency of a probate proceeding is a requisite for a court's exercise of jurisdiction over matters related to it.[179] 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.[180]

“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.[181] In considering a plea to the jurisdiction, the trial court must look solely to the allegations in the plaintiff's petition.[182] 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.[183] The plaintiff bears the burden of alleging facts affirmatively showing that the trial court has subject- matter jurisdiction.[184] We take allegations in the pleadings as true and construe them in favor of the pleader.[185]

“Schuld's petition alleged the specific owners of the property, each owner's interest in the property, and the estimated value of the property.[186] 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.[187] 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.[188] *[189]

“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.[190] 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.[191]

“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.”

2.4 Jansen v. Firzpatrick, March 2, 2000 (TexApp Houston [14th district] 2000)

If you wonder if all of the parties might die before the Texas courts decide whether they have jurisdiction, they have.

In Jansen, the trial court dismissed for lack of jurisdiction. The 14th court 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 case starts over, the plaintiffs are dead. They have been replaced, so we proceed.

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 subsitution 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. They 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.’[192]

“At the outset, we are compelled to point out that a motion in Limine is not the proper procedural tool 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.[193] 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.[194] The goal of a plea to the jurisdiction is to have the trial court dismiss the cause of action.[195] 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.[196] 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.[197] [198] 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.[199] Because the concept of "standing" is an element of subject matter jurisdiction, it is generally reviewed under the same standard as subject matter jurisdiction.[200]

“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.[201] 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.[202] If the court does not have jurisdiction over the subject matter of the suit, it must dismiss the case without prejudice.[203] 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.[204] We have discretion to accept statements made in the briefs as true.[205] 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 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. 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.[206] 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.[207] [208] 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.[209] 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.[210] The definition of personal property includes choses in action.[211] A chose in action is a personal right not reduced to possession, but recoverable by a lawsuit.[212] A right to set aside a deed is a personal right and therefore a chose in action.[213]

“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.[214] 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 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.[215] When a plaintiff dies while a lawsuit is still pending, his or her heirs, administrator, or executor may be made plaintiffs.[216] Heirs must allege that an administration is neither open nor necessary.[217] Specific words are not required, but the facts to support these allegations must be found in the plaintiff's pleadings.[218] 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.[219] 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.

2.5 Phifer, administrator of the Estate of Bailey v. Nacogdoches County Central Appraisal District, April 25, 2000 (TexApp Tyler 2000)

For the true connoisseurs of Texas probate jurisdiction, Bailey v. Cherokee Co. Appraisal District.[220] 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.[221] 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.

“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.[222]

The court of appeals reversed. As you read the discussion of which proceeding was filed first, note that the 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 consider that this case was the first one filed important.

Majority Opinion by Justice Worthen, joined by Justice Hadden

“Phifer, Administrator of the Estate of Walter Earl Bailey[223] and Co-Independent Executor[224] 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”[225] ) 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*[226] 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[227] 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."[228] 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,[229] 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.[230] [231] It further points out that if a court has not acquired subject matter jurisdiction of the litigation, its judgment is void.[232] 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.[233] 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.[234] It would appear that the district court first acquired jurisdiction when the suit for delinquent taxes was filed there in 1989.[235] However, there are three exceptions to the rule that the court where suit is first filed acquires dominant jurisdiction.[236] 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.[237]

“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.[238] 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.[239]

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.[240] 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."[241] [242] 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.[243] 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.*[244] 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*[245] 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.*[246]

“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.[247]

“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.[248] [249] 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.”

2.6 Sabine Gas Transmission Company, et al. v. Winnie Pipeline Transmission Company and Southeastern Marketing Company, et al March 2, 2000 (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, and, as cases go, it is a gas.[250] This case received the TexasTwoStep procedure. In the first step, the Harris County Probate Court #2 reached out and plucked this case from the Montgomery District Court. In the second step, that same Harris County’s Probate Court #2 dismissed the case on the grounds that the Harris County’s Probate Court #2 lacked jurisdiction.

One wonders if Dennis the Menace grew up to become a judge. But this is 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 over this case which arose ‘from alleged bribes and kickbacks taken under a percentage gas sales contract.’ Let’s pause and reflect for a moment. The Probate Court erroneously dismissed a case for lack of jurisdiction. That was erroneous. So, what does the Fourteenth Court do? Does it reverse? No. It says, “so what.”[251] 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. 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? Yet, this case doesn’t rate even an honorable mention in the pantheon of Texas probate jurisdiction cases. 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[252] 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.[253] Winnie, however, relies heavily on a case from the Austin Court of Appeals,[254] 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?[255] There, Frances Ledbetter entered into a contract for the sale of land with Weaver.[256] The sale was conditioned upon Weaver taking steps to develop the property.[257] Sometime after this contract was entered into, Ledbetter died and his estate was admitted to probate.[258] His estate sued Weaver to clear title to the property.[259] 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.[260]

“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.[261] 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.[262] The probate court granted the dismissal and Weaver appealed.[263]

“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."[264] 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.[265] 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.[266] Because it found the claims against the City to be ancillary or pendent to nothing, the court held the probate court lost jurisdiction.[267]

“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.[268] 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 court[269] has concurrent jurisdiction with the district court in all actions by or against a person in the person's capacity as a personal representative."[270] [271] 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 jurisdiction[272] necessary to promote judicial efficiency and economy." [273] 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.[274] [275]

“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.[276] 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.[277] 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.

2.7 Herring v. Kubicek, July 12, 2000, (TexApp 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.

“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.[278] 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. . . .’[279]

“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.’[280]

“The court concluded that the [San Patricio] court had ‘discretion to appoint a receiver to carry out the order of sale.’[281] 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,*[282] 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.*[283] 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."[284] We review the trial court's order of dismissal by construing the pleadings in Lemuel's favor and looking to his intent.[285]

“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[286] 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.’[287]

“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.[288] This statutory county court has, concurrent with the constitutional county court, "the probate jurisdiction . . . for county courts."[289] 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. . . .[290]

“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.’[291]

“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.’ [292] 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."[293] Traditionally, county courts such as the San Patricio County Court at Law did not enjoy such broad probate jurisdiction.[294] 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 . . . .’[295]

“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. . . .’[296]

“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.’ [297]

“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.[298]

“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.[299] 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.[300] Because Carroll involved an independent administration, further action by the county court was not permitted because the estate was being administered independently.[301] 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.[302] The statutory county court admitted the decedent's will to probate in 1974 as an independent administration.[303] No showing had been made that the estate administration was closed.[304] 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.[305] Later that year, Glass petitioned the Smith County court to determine the title of the land.[306] Glass then filed a plea in abatement and motion to transfer venue from Rusk County to Smith County.[307] 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.[308] 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.[309]

“The appeals court found that both courts have ‘at least the power to hear and decide a title issue.’[310] The appeals court stated that the county court had a duty to dismiss the petitions that Goodwin filed in Smith County.[311] Yet, the court apparently*[312] reached this result because the title dispute had not been filed previously in the Smith court.[313]

“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[314] 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.[315] The Texas Tax Code requires taxing entities to bring suit for delinquent property tax in the county where the real estate is located.[316] The Crawford court construed this provision as providing dominant jurisdiction to a court in which the land is located over the county of probate.[317] 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.’[318]

“In the present case, Lemuel cites the mandatory venue provision for suits involving land to support maintaining his suit in Wilson county.[319] 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.’[320] The jurisdictional requirement of the Tax Code makes good policy sense because it allows taxing authorities to be able to litigate in one county.[321]

“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.[322] The appeals court concluded that because district courts have jurisdiction to remove trustees, the district court should maintain jurisdiction over the suit.[323] 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."[324] "[A]s far as [the] action involves the imposition of a constructive trust, it was properly brought in the district court." [325] 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.[326]

“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.[327] "In other words, the pendency of a probate proceeding is a requisite for a court's exercise of jurisdiction over matters related to it."[328] 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.

“The San Patricio court had authority to issue an order that authorized the sale.[329] The court's action in confirming or disapproving the report of sale has the ‘force and effect’ of a final judgment."[330] As such, "any person interested in the estate or in the sale shall have the right to have such decrees reviewed as in other final judgments in probate proceedings."[331]

“Resolution of the conveyance to the Hyatts, ordered by a probate court, is vital to the overall management and settlement of the estate's debts. If the conveyance is voided, then the estate will need to satisfy its debts in other ways. Because Lemuel's pleadings attack a sale ordered by the San Patricio court's sale, the proper method for Lemuel to seek relief is to exhaust his procedural remedies with the San Patricio court and then pursue an appeal accordingly. Lemuel's actions during the estate administration support this result. Under Goodwin v. Kent, the Wilson County district court should not exercise jurisdiction. Lemuel complained about the sale throughout the probate of Ethel's estate in the San Patricio court and attacked alleged procedural deficiencies there as well (culminating in Herring II).

“(2) Jurisdiction Requirements Trump Venue Provisions

This jurisdictional requirement "trumps" the venue provision of bringing suit in the county where the land is located. To illustrate this concept, the Tax Code (discussed above) provides an example of a jurisdictional requirement for delinquent ad valorem tax suits. These suits must be brought in the county in which the land is located. The Civil Practice and Remedies Code's venue provision for suits relating to land is not jurisdictional. Although the county in which the land is located is the mandatory venue for land-related suits, this privilege of litigating in that county may be waived. A jurisdictional requirement (such as that contained in the Probate or Tax Codes) takes precedence over a venue requirement.

“(3) Wilson County is Not Appropriate for Relief Against the Successor Administrator

“Lemuel seeks injunctive relief[332] and punitive damages from Kubicek, the successor administrator. Lemuel asserts that because the suit is, in part, against Kubicek in his official capacity, the district court in Wilson County has original jurisdiction in this case. We disagree. If Lemuel wished to bring suit against Kubicek in a district court, the proper district court to seek such injunctive relief, assuming that the district court were the proper forum, would be in San Patricio County, the county in which the estate is being probated.[333]

“(4) Policy Reasons Support the Wilson County Court's Dismissal of Lemuel's Pleadings

“Finally, policy reasons support the trial court's dismissal. A court sitting in probate has the power to issue orders to the administrator to sell land regardless of which county the land is located. If an interested party objects to the sale, the court that issued the orders is the best court to hear the objection for several reasons. First, the court is afforded the opportunity to correct its mistake. Second, because the court is responsible for the settlement of the estate, any change in the disposition of an asset might affect the estate's ability to satisfy its debts. Third, judicial economy favors a consolidated series of actions in one court rather than multiple litigation in many courts. We cannot imagine anything more chaotic than interested parties and their counsel visiting the various courts of our state's 254 counties in order to settle land disputes that arise from the administration of an estate. The court sitting in probate has broad authority to resolve the complex, interwoven, and difficult matters that the interested parties present for its consideration. We believe that our Legislature intended to allow that authority to be exercised in as unfettered a manner as possible.

“We affirm the trial court's dismissal for lack of jurisdiction.

“2. Hearing on Injunctive Relief

“a. Standard of Review

We review the trial court's denial of a temporary injunction under the abuse of discretion standard.[334] The trial court abused its discretion in denying Lemuel's application for temporary injunction if it misapplied the law to the established facts or if the evidence reasonably supports the conclusion that Lemuel has a probable right to recovery.[335] In reviewing the trial court's denial of Lemuel's application, we draw "all legitimate inferences from the evidence in a manner most favorable to the trial court's judgment."

“b. Application

“Because the trial court dismissed the lawsuit for a lack of jurisdiction, its decision not to hold a hearing on injunctive relief was proper as well. A court's jurisdiction over the subject matter of the case is essential to its authority to decide the merits of the case. [336] Lemuel's desire to stop the parties from carrying out the order of the San Patricio court's order was central to Lemuel's case. . . .

“3. Trial Court Sanctions

We turn next to the propriety of the trial court's sanctions against Lemuel and Waddle. We assume, without deciding, that the trial court had jurisdiction to consider the appellees' various motions for sanctions.

“Welborn*[337] moved for sanctions against Lemuel and Waddle, arguing that:

“A. Lemuel's pleading is for an improper purpose, in violation of Texas Civil Practice and Remedies Code section 10.001(1); and

“B. The legal arguments in Plaintiff's pleading are not warranted by existing law, in violation of section 10.001(2).

“Welborn also sought sanctions under Texas Rule of Civil Procedure 13. At the hearing, the defendants joined in Welborn's motion or filed their own motions for sanctions.

“The court specifically found that Lemuel and Waddle violated sections 10.001(1)-(2) of the Texas Civil Practice and Remedies Code.[338] The trial court awarded sanctions in favor of each defendant in the amount of their respective attorney's fees. The court held Lemuel and Waddle jointly and severally liable for the sanctions. The trial court also issued an order of dismissal with prejudice.

“Lemuel argues that the trial court erred in awarding sanctions. He also asks that, in the event this court concludes that the trial court did not err in dismissing for a lack of jurisdiction, that the judgment be modified to reflect a dismissal without prejudice. Welborn, Kubicek, and Joseph argue that the court did not err in dismissing with prejudice. Corrigan, the Hyatts, and Murray Guaranty agree that although the trial court did not err in dismissing with prejudice, the judgment should be modified to reflect a dismissal without prejudice.

“a. Standard and Scope of Review

“We review a trial court's award of sanctions under the abuse of discretion standard.[339] Our scope of review is the entire record that was before the trial court.[340] We review the conflicting evidence in the light most favorable to the trial court's ruling, and draw all reasonable inferences in favor of the court's judgment.[341]

“b. Applicable Law

“Section 10.001 provides, in part:

“The signing of a pleading or motion as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory's best knowledge, information, and belief, formed after reasonable inquiry:

“* the pleading or motion is not being presented for any improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation; [and]

“* each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law . . . .

“The code continues, explaining the limitations on sanctions that are available to the trial court:

“* The sanction must be limited to what is sufficient to deter repetition of the conduct or comparable conduct by others similarly situated.

“* A sanction may include any of the following:

“(1) a directive to the violator to perform, or refrain from performing, an act;

“(2) an order to pay a penalty into court; and

“(3) an order to pay to the other party the amount of the reasonable expenses incurred by the other party because of the filing of the pleading or motion, including reasonable attorney's fees.[342]

“In order for a party seeking sanctions to prevail, there must be little or no basis for claims, no grounds for legal arguments, misrepresentation of law or facts, or legal action that is sought in bad faith. In Skepnek v. Mynatt, the appeals court affirmed a trial court's award of sanctions against an attorney.[343] Among its findings of fact, the trial court explained: "[e]ach factual contention of the Special Appearance did not have evidentiary support" and that "[t]he denials in the Special Appearance of Raymark's amenability to this Court's jurisdiction are not warranted by the evidence."[344] Conversely, another court of appeals denied an appellant's request for sanctions when the appellee sought a cost bond that was not authorized under the Rules of Procedure.[345] These cases highlight the severity with which conduct by counsel and party must reach in order to be sanctionable.

“In confronting the issue of Rule 13 sanctions, the First Court of Appeals explained: ‘‘Groundless’ means without basis in law or fact and not warranted by a good faith argument for an extension, modification, or reversal of existing law.’[346] The movants for sanctions argued that the appellant's claims were groundless ‘because the judicial communication privilege clearly bars the claims which [the appellant] has raised in this case. . . . [The movants] also argue that [the appellant] never specifically argued for an extension, modification, or reversal of Texas law. . . .’[347]

“The appeals court held that the trial court abused its discretion in awarding sanctions, explaining:

‘Clearly, rule 13 is a tool that must be available to trial courts in those egregious situations where the worst of the bar uses our system for ill motive without regard to reason and the guiding principles of the law. The rule, however, cannot become a weapon used to punish those with whose intellect or philosophic viewpoint the trial court finds fault. Innovative changes in the law or applications of the law must by necessity come from creative and innovative sources. By their very definition, changes in the law are different from and in disagreement with what has been historically accepted. We cannot allow rule 13 to have a chilling effect on those who seek change in legal precedent.’ [348]

“(1) Award of Monetary Sanctions

“In the present case, there is scarce evidence of factual misrepresentations that bear heavily upon the case. Lemuel's interpretation of the facts might be debatable, but is not without basis in the trial record. Lemuel alleged that the issues surrounding the land had not been litigated, alleging that his case was distinct from the pending estate administration. His response pleadings offer further legal authority for his jurisdictional arguments. Although the trial court properly disagreed with Lemuel's interpretation of case law and statute, these authorities offer at least a debatable argument for extending jurisdiction to the Wilson County district court.

“Simply put, the parties disagree over how the issue is to be framed and whether casting Lemuel's pleadings in a particular light warrants litigating in one forum over another. Lemuel's attempt at reaching a favorable result had some arguable legal basis. Any misstatements or misrepresentations were explained, and appear to be inadvertent. The legal authority relied upon was not misrepresented. Lemuel attempted to stretch the law to be applicable to his case. It did not work. But because the argument was correctly rejected by the trial court does not mean it was sanctionable.[349]

“We conclude that the trial court erred in awarding monetary sanctions.

“(2) Dismissal With Prejudice

“We turn next to the dismissal with prejudice. Welborn argues that ‘the trial court's issuance of a dismissal’ with prejudice "amounts to a directive on Appellant to refrain from performing an act." Welborn further calls our attention to Cloghly v. NBC Bank - Seguin, N.A.[350] In Cloghly, we quoted Rule 13, which permits the dismissal of a suit with prejudice because it incorporates by reference Rule 215.2(b)(5).[351] Section 10.004 does not provide a similar incorporation of another sanctions list.

“We have not located case law that extends section 10.004 to allow the dismissal of cases with prejudice. We decline to bend section 10.004 to allow dismissals with prejudice. If the Legislature wishes to empower trial courts with this power when courts impose sanctions under the Civil Practices and Remedies Code, it may do so. In light of the trial court's order, we are not convinced that the trial court intended to dismiss the cause with prejudice as a sanction.[352] [353]

“Because we are outside the area of sanctions in considering the dismissal with prejudice, we determine next whether the court had the power to dismiss Lemuel's suit with prejudice. ‘A trial court is powerless to dismiss a cause ‘with prejudice’ after determining it lacks subject-matter jurisdiction over the cause.’ [354]

“If a dismissal with prejudice were a viable sanction under the Civil Practice and Remedies Code, we would conclude that the trial court abused its discretion in dismissing with prejudice. Because the trial court concluded that it lacked jurisdiction, another court could have had jurisdiction. Toward the end of the hearing, the trial court acknowledged the possibility that Lemuel could refile the suit in San Patricio county. The trial court should not have prohibited Lemuel from attempting to refile his lawsuit. Even if permitted as a sanction, an outright dismissal with prejudice goes beyond what is ‘sufficient to deter repetition of the conduct’ in the present case.[355]

“We sustain Lemuel's second and fourth issues.

“4. Motion for Appellate Sanctions

“Welborn[356] filed a motion for sanctions against Lemuel and Waddle, claiming that the pending appeal is frivolous. Welborn[357] does not explain why the appeal is frivolous. Lemuel (and Waddle) responded to Welborn's allegations in a reply brief. We turn first to how a decision by this court regarding the award of appellate sanctions will be reviewed.

“If the court of appeals determines that an appeal is frivolous, it may-on motion of any party [and] after notice and a reasonable opportunity for response-award each prevailing party just damages. In determining whether to award damages, the court must not consider any matter that does not appear in the record, briefs, or other papers filed in the court of appeals.[358]

“Whether to grant sanctions is within the discretion of the reviewing court.[359] As long as Lemuel's argument has a ‘reasonable basis in law and constituted an informed, good faith challenge to the trial court's judgment,’ this court's award of sanctions probably would not be appropriate.[360] We have stated that an award of sanctions on appeal ‘will be imposed only if the record clearly shows the appellant has no reasonable expectation of reversal.’ [361]

“In Campos, the appellant misrepresented the plain language of the Property Code to this court.[362] The appellant's arguments in Campos were not supported by case law.[363] Any citations to case law instead were irrelevant to the merits of the appeal.[364] The court sanctioned the appellant, determining that the appellant had no reasonable basis for believing that the case would be reversed.[365] Such sanctions serve not only to punish, but to dissuade litigants and counsel from straining judicial resources in bad faith.

“The present case, however, does not present itself as devoid of merit. Lemuel does not twist the facts of the dispute. There is only one significant disagreement regarding one of the factual issues (whether the Hyatt's received a refund of their earnest money). That particular factual allegation does not form an underpinning of our opinion, nor is that conclusion improbable without a very close reading of the evidence in question.

“The law of probate jurisdiction is less than perfectly clear.[366] In light of, or perhaps despite, this murkiness, Lemuel managed to advocate a position that is supported by citations to case law and appropriate statutes. Lemuel's interpretation of previous courts' opinions in the area of probate jurisdiction, and their application to the present case, is not out of touch with reality. We disagree with the interpretation of the case law by Lemuel. But we do not think the appeal is frivolous. We deny Welborn's motion for appellate sanctions.

Conclusion

“We affirm the trial court's order of dismissal for lack of jurisdiction, but order that it be modified to be a dismissal without prejudice. We vacate the trial court's award of sanctions, and we overrule Welborn's motion for appellate sanctions.

Concurring and dissenting opinion by: Paul W. Green, Justice

“I concur in part and dissent in part. I would affirm the trial court's order in its entirety, and I would add appellate sanctions against Herring.

“I concur with the majority's decision affirming the trial court's order dismissing Herring's lawsuit, but I dissent to the majority's decision to reform the order into a dismissal without prejudice and deny the Welborn defendants the monetary sanctions they were awarded below.

“The majority says Herring's attempt to litigate the land title issues in Wilson County had some arguable legal basis. I disagree. Although the land was located in Wilson County, once the property came under the jurisdiction of the San Patricio County probate court, any title issue involving the property was properly raised there. It cannot be reasonably argued, however creatively, that title issues foreclosed by a final judgment in one court of competent jurisdiction can be relitigated in another court of equal jurisdiction.

“Moreover, the frivolous and harassing character of Herring's actions are clearly revealed by the fact that he sued the San Patricio County trial judge whose ruling he did not like, and even now appeals the dismissal of his claim against that judge. I believe the record amply supports the trial court's conclusion that Herring brought this groundless lawsuit for improper purposes.

“The plaintiff and his attorney evidently thought they might find a friendlier forum in Wilson County. They did not. The trial court made an assessment of the situation and sanctioned them both. I see no abuse of discretion. I would affirm the trial court sanctions, and would add appellate sanctions against Herring for frivolously appealing the dismissal of Judge Welborn despite his clear judicial immunity.” [367]

---

[1] *See Weldon v. Hill, 678 S.W.2d 268, 274 (Tex. App.-Fort Worth 1984, writ ref'd n.r.e.)

[2] *Because of the complexity of the issues, some background is useful for this course. Extensive background is better. However, even a beginner has to start somewhere and this may be as good a place to start as any. If you are a beginner, we suggest humility. This is only a start. Be cautious about thinking that either you or the courts really understand it. If you don’t know all about Texas probate jurisdiction now, you will not know all about it when you finish this course.

[3] *This is an example of a footnote by the author.

[4] *References to a particular brand of published statute are omitted.

[5] *The teacher believes the substance of the opinions is preserved. However, if you wish to use a quotation in your own brief, consult the original opinion to determine how you will edit and present the quotation.

[6] 1 S.W.3d 171 (TexApp-Fort Worth 1999, no pet.)

[7] February 17, 2000 (TexApp-El Paso 2000)

[8] Woollett v. Matyastik February 17, 2000 (TexApp-Austin 2000)

[9] Columbia Rio Grande Regional Hospital v. Stover April 28, 2000 (TexApp -Corpus Christi 2000)

[10] Logan v. McDaniel, June 15, 2000, (TexApp - Austin 2000)

[11] *The rule seems to be:

If the highest court that considers it says it is too late, it is to late. If the highest court says it is too early, it is too early. If the highest court says it is currently appealable, it is. The way to find out is to appeal, or not appeal, and let the court tell you what it thinks. Remember that, if you are guessing whether it is appealable, the court may also be guessing.

[12] See TEX. PROB. CODE §§ 612-614

[13] See TEX. PROB. CODE §§ 5(f).

[14] See Crowson v. Wakeham, 897 S.W.2d 779, 782 (Tex. 1995).

[15] Id. at 783; see also A&W Indus. v. Day, 977 S.W.2d 738, 740 (Tex. App.- Fort Worth 1998, no pet.).

[16] See, e.g., Forlano v. Joyner, 906 S.W.2d 118, 120 (Tex. App.-Houston [1st Dist.] 1995, no writ) (holding that transfer order under section 608 of probate code did not resolve a severable claim and therefore could never, by itself, be appealable under Crowson)

[17] See, e.g., In re Hersey's Guardianship, 93 S.W.2d 810, 812 (Tex. Civ. App.-San Antonio 1936), judgment dism'd as moot sub nom, Holland v. Bailey, 133 Tex. 150, 127 S.W.2d 446 (Tex. Comm'n App. 1939, op. adopted); In re Estate of Izer, 693 S.W.2d 481, 483-84 (Tex. App.-Corpus Christi 1985, writ ref'd n.r.e.).

[18] See TEX. CIV. PRAC. & REM. CODE § 15.064(a) (providing that "[n]o interlocutory appeal shall lie from the [venue] determination."); see also TEX. R. CIV. P. 87(6) ("There shall be no interlocutory appeals from [a venue] determination.").

[19] * Did the court think it was so obvious that the order was final that it wasn’t worth mentioning, or did they not notice the issue?

[20] See, e.g., Spies v. Milner, 928 S.W.2d 317, 318 (Tex. App.-Fort Worth 1996, no writ); Vineyard v. Irvin, 855 S.W.2d 208, 210 (Tex. App.-Corpus Christi 1993, no writ).

[21] See Crowson, 897 S.W.2d at 783.

[22] See Grounds v. Lett, 718 S.W.2d 38, 39 (Tex. App.-Dallas 1986, no writ).

[23] Since appealing the transfer order, appellants have also appealed several other orders in the ward's guardianship proceeding: a sanctions order; an order dismissing causes of action in Archer and Wichita Counties; an order granting the ward's motion in limine that appellants have interests adverse to the ward; another transfer order; and an order terminating the guardianship. Appellants have acted to perfect their appeals of these matters in both this court and the First or Fourteenth Court of Appeals. They do not explain why the transfer order would not be appealable with any one or all of these other orders, which, presumably, appellants believe are final.

[24] 1 S.W.3d 171 (TexApp-Fort Worth 1999, no pet.)

[25] See Christensen v. Harkins, 740 S.W.2d 69, 72 (Tex. App.-Fort Worth 1987, no writ).

[26] See, e.g., Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385, 386 (1945) (determining that an order overruling a plea in abatement to petition to probate will was merely interlocutory, and was therefore not appealable); Stubbs v. Ortega, 977 S.W.2d 718, 721 (Tex. App.-Fort Worth 1998, pet. denied) (addressing the issue because there is no express statute which declares the trial court's order to allow a guardian to file for divorce on behalf of her ward is a final and appealable order).

[27] See Kelley, 188 S.W.2d at 386 (interpreting the predecessor to section 5(f) of the probate code).

[28] Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995).

[29] See Estate of Wright, 676 S.W.2d 161, 163 (Tex. App.-Corpus Christi 1984, writ ref'd n.r.e.).

[30] See Crowson, 897 S.W.2d at 783.