Texas Trial Court Jurisdiction
Recent Estate and Guardianship Cases
YouKnowItAll.com
© A. Hawkins
2001
Table of Contents
Case #1 Columbia Rio Grande
Regional Hospital v. Stover April 28, 2000 17 S.W.3d 387 (TexApp -Corpus Christi 2000)
Case #2 Garza v. Rodriguez, January 26, 2000 18 S.W.3d 694
(TexApp - San Antonio 2000)
Case #3 Enax v. Noack, January
31, 2000 12 S.W.3d 609 (TexApp Houston[first dist.] 2000)
Case #4 Shuld v Dembrinski, March 17,
2000, 12 S.W.3d 485 (TexApp - Dallas 2000)
Case #5 Jansen v. Fitzpatrick, March 2, 2000 14 S.W.3d 426
(TexApp Houston [14th district] 2000)
Case #6A Phifer, administrator of the
Estate of Bailey v. Nacogdoches County Central Appraisal District April 25, 2000 (TexApp Tyler 2000)
(Opinion later withdrawn... see 6B)
Majority Opinion by Justice Worthen,
joined by Justice Hadden Dissenting Opinion by Chief Justice Murphy
Case #6B Phifer, administrator of the
Estate of Bailey v. Nacogdoches County Central Appraisal District October 31, 2000 (TexApp Tyler 2000) (Replaces 6A)
Opinion by Justice Worthen,
Case #7 Sabine Gas Transmission
Company, et al. v. Winnie Pipeline Transmission Company and Southeastern
Marketing Company, et al March 2, 2000 15 S.W.3d 199 (TexApp Houston [14th dist.]
2000)
A Note on Texas Probate and
Guardianship Jurisdiction
Texas,
trial court probate and guardianship[1]
jurisdiction is not a subject for the timid. There are hundreds of
published appellate opinions on Texas trial court probate jurisdiction issues
since probate jurisdiction was reformed in 1973. It is not an easy subject. A surprisingly large portion of Texas
probate litigation is void because the trial occurs in a court which lacks
jurisdiction. Other litigation is erroneously dismissed for lack of
jurisdiction by courts that do have jurisdiction. Court proceedings without
jurisdiction are void. Many lawyers think estate and trust litigation is easy.
It isn't. Many lawyers and judges don't
even know the issues, much less the law.
Many clueless lawyers become trial and appellate judges. Probate trial court jurisdiction law is
complicated. Some law is unwritten. Some remains undecided. Sometimes the judges on an appellate court
disagree among themselves. Texas estate
jurisdiction has been described as a nightmare[2] but it isn’t literally a nightmare.
It is more like a horror story that causes nightmares for those who are exposed
to it. Do you dare read on?
Keeping Score
Some
might want to note the number of cases in which:
1. The trial court had jurisdiction to hear
what it heard.
2. The trial court did not have jurisdiction
to hear what it heard.
3. The court of appeals claims that judicial
efficiency is the goal, thus demonstrating a sly sense of humor.
Texas probate jurisdiction is not simple or rational. Much is unclear and unsettled. It is a mess.[3]
If anyone thinks they know it all, this course may change your
opinion. When it comes to Texas probate
jurisdiction, no one knows it all. No one can know it all. For those who enjoy
complexity, this course is a delight. Those who seek rational patterns will be
frustrated. These cases may give you a
headache. Aspirin may help.
A Note about footnotes
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 courts or the courts retain the court's footnote
number in both the text and our footnote. Some footnotes by the court and some
repetitive citations may be omitted.[4]
Some names are shortened to first or last names.[5]
Before each case the symbol * *
* * * visually identifies the case and allows you to search for * * * * * to
move to the next case.
The Course Text
* * * * *
Case #1 Columbia Rio Grande Regional Hospital v. Stover April 28, 2000 17 S.W.3d 387 (TexApp
-Corpus Christi 2000)
Columbia[6] shows how a creditor may turn a claim against an estate into a
liability to the estate, a remarkable feat in most places, but an easy one in
Texas. The path through the courts is
an interesting one that is all too representative of the tangled processing of
probate cases and issues in Texas.
In Texas, the first test in probate litigation is determining
which court has jurisdiction. Many fail
that test. The rules governing creditors claims are difficult and treacherous.
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. As you read Columbia,
ask yourself what the difference is between a dependent and independent
administration of an estate. Feel free
to be skeptical of the court's analysis of the concept of county court at law
jurisdiction over independent executors.
“Appellant Columbia Rio Grande Regional Hospital, a medical
provider, filed a declaratory action against Stover, independent executrix of
the estate of Reed, deceased. Stover filed a motion for summary judgment
asserting, inter alia, the action was barred by res judicata and collateral
estoppel. . . . We affirm.
“Columbia provided medical services to Reed for an
on-the-job injury. Columbia charged Reed
for services provided in the amount of $15,395.85, and later filed a hospital
lien for that amount in Hidalgo County. 1[7]
Subsequently, Reed filed suit against his employer in the 206th District
Court in Hidalgo County (Reed Lawsuit). Columbia filed notice of its hospital
lien in the Reed Lawsuit. 2[8]
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.[9]
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.[10]
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.[11]
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.[12]
“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.[13]
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.[14]
“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,[15] it is equally clear that courts
have determined the legislature did not intend for the independent
administrator to be completely free from judicial supervision.[16]
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.[17]
“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. [18]
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.[19]
This is a general grant of authority to statutory county courts. [20]
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."[21]
This statute codifies case law.[22]
“Columbia's reliance on Carter v. Brady[23] 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.[24]
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." [25]
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. . .
."[26]
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.[27] 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.[28] [29] Because no direct appeal of the
September 24, 1997, probate order was taken by Columbia, it cannot now attack
the order collaterally.[30]
“Accordingly, we hold there was a prior final judgment on
the merits by a court of competent jurisdiction. Stover established the first
element of res judicata, the only element about which Columbia complains.
Therefore, the summary judgment is sustainable on that ground.
* * * * *
Case #2 Garza v. Rodriguez, January 26, 2000 18 S.W.3d 694
(TexApp - San Antonio 2000)
For those who think that Texas title
passes by a will and not by an order of a probate court, Garza is very
interesting indeed. Garza addresses a devise of real estate in fee simple
subject to a springing executory interest that didn’t spring because an
unexplained constitutional county court order of final probate settling,
approving, and closing an estate granted fee simple absolute title and did not
account for the springing executory interest expressly provided in the will.
Garza does not discuss whether the issue was plead, litigated, considered by
the county court prior to the probate court order or whether the constitutional
county court had proper jurisdiction over the parties or subject matter. The 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[31] [32] an order of final probate settling,
approving, and closing Pena's estate was entered in the county court.[33]
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. . . . .[34]
“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.[35]
“On October 19, 1984,[36] 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[37] 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.[38] Appellants further assert that the
district court had jurisdiction to act because their pleadings requested the
imposition of a constructive trust.[39]
“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.[40] 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.[41]
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[42]
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.[43]
In most counties in Texas, the constitutional county courts
("county courts") act as the probate court.[44] 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.[45]
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.[46]
The construction of a will or issues of title were thus general civil
matters within the jurisdictional reach of the district courts.[47] [48]
“In 1973,[49] the county court's probate
jurisdiction was expanded when the Legislature undertook a two-step reform of
probate jurisdiction.[50]
First, it proposed an amendment to article 5, section 8 of the
constitution authorizing a statutory revision of probate jurisdiction.[51] [52] 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.[53]
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.[54]
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.[55]
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.[56]
[57]
“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[58]
“In Crawford, a will was admitted to probate in
constitutional county court in 1968.[59]
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.[60]
The district court set aside the will, determined heirship, partitioned
the real property, and ordered an accounting.[61]
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.[62] 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.[63]
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.[64]
“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,[65] 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.[66]
“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].’ [67]
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.[68]
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.[69]
“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.[70]
The final order, whether by mistake or design, unambiguously granted[71]
Santiago fee simple absolute title to the remainder of Pena's estate.
That order was not challenged.[72]
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.[73]
An action to undo an incorrect former judgment must be brought in the
court rendering the judgment or in a higher court.[74]
Because the instant action seeks to undo the prior probate order, the
district court properly determined it did not have jurisdiction.[75]
* * * * *
Case #3 Enax v. Noack, January
31, 2000 12 S.W.3d 609 (TexApp Houston[first dist.] 2000)
Is that enough fun
with trial court jurisdiction? No such luck. We turn to In Enax, 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.
“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[76] to the district court with the
district court's permission. On December 30, 1997, the district court signed a
final amended judgment, awarding $186,989.65 in actual damages and $216,989.65
in exemplary damages and imposing a constructive trust on Lloyd for
$141,989.65.
“. . . Lloyd brings an issue of first impression, contending
the county court at law lacked subject-matter jurisdiction to impose a
constructive trust in a guardianship proceeding. 1[77]
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.[78]
The rationale behind these decisions is based on an interpretation of
Probate Code section 5A:
Constitutional
County Court and Statutory County Court at Law
§ 5A.
Matters Appertaining and Incident to an Estate and Other Probate Court Jurisdiction
(a) In
proceedings in the constitutional county courts and statutory county courts at
law, the phrases "appertaining to estates" and "incident to an
estate" in this Code include
the
probate of wills,
the
issuance of letters testamentary and of administration,
the
determination of heirship,
and also
include, but are not limited to,
all
claims by or against an estate,
all
actions for trial of title to land incident to an estate and for the
enforcement of liens thereon incident to an estate,
all
actions for trial of the right of property incident to an estate,
and
actions to construe wills, and
generally
all matters relating to the settlement, partition, and distribution of estates
of deceased persons.
Statutory
Probate Court and District Court
§ 5A. Matters
Appertaining and Incident to an Estate and Other Probate Court Jurisdiction
(b) In
proceedings in the statutory probate courts and districts courts, the phrases
"appertaining to estates" and "incident to an estate" in
this Code include
the
probate of wills,
the
issuance of letters testamentary and of administration, and
the
determination of heirship,
and also
include, but are not limited to,
all
claims by or against an estate,
all
actions for trial of title to land and for the enforcement of liens thereon,
all
actions for trial of the right of property,
all
actions to construe wills,
the
interpretation and administration of testamentary trusts and the applying of
constructive trusts, and
generally
all matters relating to the settlement, partition, and distribution of estates
of deceased persons.
“Because
the legislature has given specific authority to the statutory probate courts
and district courts over "all actions to construe wills, the
interpretation and administration of testamentary trusts and the applying of
constructive trusts," the above cited cases interpreted this specific
grant of authority to deny the constitutional county courts and statutory
county courts at law the authority to impose constructive trusts.[79] 2 We do not agree with this interpretation
of §5A. [80]
“Before 1993, section 5A applied to both probate and
guardianship proceedings.[81]
In 1993, the legislature rewrote the guardianship laws and separated
them into a new chapter XIII of the Probate Code.[82]
As a part of the 1993 revision, guardianship provisions have been
removed from section 5A and ‘mirrored’ in a new section 607:
CONSTITUTIONAL
COUNTY COURT AND STATUTORY
COUNTY COURT AT LAW
PROVISIONS
Probate
§ 5A.
Matters Appertaining and Incident to an Estate and Other Probate Court Jurisdiction
(a) In
proceedings in the constitutional county courts and statutory county courts at
law, the phrases "appertaining to estates" and "incident to an
estate" in this Code include
the
probate of wills,
the
issuance of letters testamentary and of administration,
the
determination of heirship, and
also
include, but are not limited to,
all
claims by or against an estate,
all
actions for trial of title to land incident to an estate and for the
enforcement of liens thereon incident to an estate,
all actions
for trial of the right of property incident to an estate, and actions to
construe wills, and
generally
all matters relating to the settlement, partition, and distribution of estates
of deceased persons.
Guardianship
§ 607. Matters
Appertaining and Incident to an Estate
(a) In a proceeding in a
constitutional county court or a statutory county court at law, the phrases
"appertaining to estates" and "incident to an estate" in
this chapter include
the
appointment of guardians,
the
issuance of letters of guardianship,
a
claim by or against a guardianship estate,
all
actions for trial of title to land incident to a guardianship estate and for
the enforcement of liens incident to a guardianship estate,
all
actions for trial of the right of property incident to a guardianship estate,
and
generally
all matters relating to the settlement, partition, and distribution of a
guardianship estate.
STATUTORY PROBATE COURT
AND DISTRICT COURT PROVISIONS
Probate
§ 5A. Matters
Appertaining and Incident to an Estate and Other Probate Court Jurisdiction
(b) In proceedings in
the statutory probate courts and districts courts, the phrases
"appertaining to estates" and "incident to an estate" in
this Code include
the
probate of wills,
the
issuance of letters testamentary and of administration, and
the
determination of heirship,
and
also include, but are not limited to,
all
claims by or against an estate,
all
actions for trial of title to land and for the enforcement of liens thereon,
all
actions for trial of the right of property,
all
actions to construe wills,
the
interpretation and administration of testamentary trusts and the applying of
constructive trusts,
and
generally
all
matters relating to the settlement, partition, and distribution of estates of
deceased persons.
Guardianship
§ 607. Matters
Appertaining and Incident to an Estate
(b) In a proceeding in a
statutory probate court or district court, the phrases "appertaining to
estates" and "incident to an estate" in this chapter include
the
appointment of guardians,
the
issuance of letters of guardianship,
all
claims by or against a guardianship estate,
all
actions for trial of title to land and for the enforcement of liens on the
land,
all
actions for trial of the right of property,
And
generally
all
matters relating to the settlement, partition, and distribution of a
guardianship estate. 3[83]
“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.[84] 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.[85]
“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.[86] 4[87] 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[88]
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[89] 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.[90]
We disagree with Lloyd's interpretation of W.C. Banks.
“In W.C. Banks, a visiting judge conducted a bench trial.[91]
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.[92] 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.[93]
“In this case, the jury reached a verdict before the case
was transferred. The concerns addressed in W.C. Banks are inapplicable.
Accordingly, we hold that Government Code section 74.121(b)(1) authorized the
country court at law to transfer the case to the district court.
* * * * *
Case #4 Shuld v Dembrinski, March 17,
2000, 12 S.W.3d 485 (TexApp - Dallas 2000)
In Shuld, the county court at law
had dismissed litigation between siblings for lack of jurisdiction. The Dallas Court of Appeals vacated the
order dismissing and reinstated. The court of appeals found jurisdiction in the
constitutional County Court. The basis
for jurisdiction is convoluted and just plain weird. The court of appeals held
that:
•Jurisdiction was not exclusively in
the probate court.
•The District Court had jurisdiction.
•Therefore the County Court at Law
had jurisdiction.
•Whether the Probate Court had
jurisdiction was irrelevant.
•Even if Probate Court had
jurisdiction, it was not exclusive.
The result of Shuld is that the parties, older and more
experienced, return to the beginning with the case back where it started. What was that about "judicial
economy?"
“In this dispute, Trellice Lynn Schuld appeals the trial
court's order dismissing her suit against her siblings, Julius Dembrinski, Jr.,
Samantha Louise Henson, and William Dale Pete, to partition real property in
Mesquite. In a single point of error, Schuld contends the trial court erred in
sustaining Henson's plea that the statutory probate court had exclusive
jurisdiction over the matter. For the reasons set forth below, we sustain the
point of error, vacate the trial court's dismissal order, and order the case
reinstated.
“In August 1998, Schuld sued appellees in county court at
law to partition a house and lot. In her petition, she alleged that she and appellees
inherited interests in the property of their mother, De Anna Rae Pete, who died
intestate in 1975. Schuld alleged that no administration or probate proceedings
had been initiated since her mother's death, none were necessary or
contemplated, and no debts were owed by her mother. At the time of her death,
De Anna Rae Pete was married to Omar Gilbert Pete, and five children were born
to or adopted by her.
“Schuld alleged the value of the property to be $60,000 as
well as the specific interest each sibling had in the property. Schuld asked
the trial court to (1) determine the share of each of the joint owners, (2)
determine the property is not susceptible to partition and order it sold for
its market value, and (3) distribute the proceeds among the parties, after
paying her expenses.
“Henson filed an answer generally denying the allegations
and raising the affirmative defenses of waiver, collateral estoppel, homestead,
laches, and statute of limitations. Moreover, Henson filed a plea to the jurisdiction in which she asserted that the
statutory probate court had exclusive jurisdiction over the matter for two
reasons. First, she contended that Schuld's suit "is brought to determine
heirship to property inherited through De Anna Pete . . . ." Second, she asserted
the proceeding "is affected by the outcome of the probate of the will of
[De Anna Pete's] husband, Omar Pete."
“In an affidavit attached to the plea, Henson asserted that she inherited the house from her father, Omar
Pete, after his death in 1994. Attached to the plea was a copy of Omar Pete's
will; in the will, Omar Pete devised the property to Henson.[94] 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.[95]
A statutory probate court in Dallas County has the general jurisdiction
of a probate court as provided in section 25.0021.[96]
Section 25.0021 provides that a probate court has the general
jurisdiction as provided in the Texas Probate Code.[97]
“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.’[98]
Further, all courts exercising original probate jurisdiction ‘shall have
the power to hear all matters incident to an estate.’ [99] Matters incident to an estate
include the determination of heirship and all actions for trial of title to
land.[100]
“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.[101] In other words, the
pendency of a probate proceeding is a requisite for a court's exercise of
jurisdiction over matters related to it.[102] 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.[103]
“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.[104]
In considering a plea to the jurisdiction, the trial court must look
solely to the allegations in the plaintiff's petition.[105]
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.[106] The plaintiff bears the burden of
alleging facts affirmatively showing that the trial court has subject- matter
jurisdiction.[107]
We take allegations in the pleadings as true and construe them in favor
of the pleader.[108]
“Schuld's petition alleged the specific owners of the
property, each owner's interest in the property, and the estimated value of the
property. 1[109]
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.[110]
Nor did she ask the trial court
to determine her mother's heirs. To the contrary, her petition named the heirs
and sought to establish each of the co-owners' interest in the property. The
fact that the co-owners of the house and lot derived their interests by the
laws of descent and distribution or by virtue of a will does not convert this
partition suit into a determination of heirship over which the statutory
probate court might have exclusive jurisdiction. 2[111]
[112]
“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.[113] 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.[114]
“We conclude the trial court erred in dismissing this suit
for want of jurisdiction and therefore sustain the sole point of error. We
vacate the trial court's order of dismissal and order the case reinstated on
the trial court's docket for further proceedings.”
* * * * *
Case #5 Jansen v. Fitzpatrick, March 2, 2000 14 S.W.3d 426
(TexApp Houston [14th district] 2000)
If you wonder if all of the parties
might die before the Texas courts decide whether they have probate
jurisdiction, wonder no more - they
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 plaintiffs have been replaced and the case starts over.
The underlying dispute is
interesting, but the appeal is only of dismissal for lack of jurisdiction.
Maybe we will see the underlying case on appeal again after trial.
Jansen is a remarkable case on
issues of jurisdiction, standing, venue, and substitution of parties for
deceased parties. Given the length of probate litigation, the law of the
substitution for deceased parties and the proof required to prove standing is a
useful thing to know. There a lot of
names in this case. 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. 1 [115]
“At the outset, we are compelled to point out that a motion
in Limine is not the proper procedural tool[116]
to challenge a party's standing to sue or a court's jurisdiction to hear
a claim in a suit seeking to set aside a deed.2 [117] 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.[118]
The goal of a plea to the jurisdiction is to have the trial court
dismiss the cause of action.[119]
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.[120] 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.[121] 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.[122] Because the concept of
"standing" is an element of subject matter jurisdiction, it is
generally reviewed under the same standard as subject matter jurisdiction.[123]
“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.[124]
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.[125]
If the court does not have
jurisdiction over the subject matter of the suit, it must dismiss the case without
prejudice.[126]
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.[127]
We have discretion to accept statements made in the briefs as true.[128]
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[129]
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.[130]
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.[131] The Texas Probate Code grants exclusive jurisdiction to county courts
sitting in probate only when the controlling issues are the settlement,
partition, or distribution of an estate. 3[132] [133] [134]
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.[135]
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.[136]
The definition of personal property includes choses in action.[137]
A chose in action is a personal right not reduced to possession, but
recoverable by a lawsuit.[138]
A right to set aside a deed is a personal right and therefore a chose in
action.[139]
“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.[140]
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[141]
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.[142]
When a plaintiff dies while a lawsuit is still pending, his or her
heirs, administrator, or executor may be made plaintiffs.[143]
Heirs must allege that an administration is neither open nor necessary.[144] Specific words are not required,
but the facts to support these allegations must be found in the plaintiff's
pleadings.[145]
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.[146]
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.”
* * * * *
#6 A & B Phifer, administrator
of the Estate of Bailey v. Nacogdoches County Central Appraisal District (TexApp Tyler 2000) (“Old Bailey” & “New Bailey”)
Old Bailey
Case #6A Phifer, administrator of the
Estate of Bailey v. Nacogdoches County Central Appraisal District April 25, 2000 (TexApp Tyler 2000)
(Opinion later withdrawn... see 6B)
Majority Opinion by Justice Worthen,
joined by Justice Hadden Dissenting Opinion by Chief Justice Murphy
New Bailey
Case #6B Phifer, administrator of the
Estate of Bailey v. Nacogdoches County Central Appraisal District October 31, 2000 (TexApp Tyler 2000) (Replaces 6A)
Opinion by Justice Worthen,
For the true connoisseurs of Texas probate jurisdiction
Bailey v. Cherokee Co. Appraisal District.[147] 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.[148] Yes, the Bailey Estate and the
tax collectors are at it again. For
those of you who think death and taxes go together, Bailey is instructive. For
those who think that death and taxes are certain, Bailey is enlightening. We quote the Chief Justice.
“It appears that for 27 years the Estates have avoided
payment of ad valorem taxes on various properties. These property taxes are
allegedly owed to five county taxing authorities, one of which is the Appellee.
Appellant's counsel has advised that should a reversal be ordered here, the
Estates have no intention of remitting the taxes to the appraisal districts.”
Chief Justice Ramey, dissenting in Old
Bailey.
The original opinion was withdrawn
by the court of appeals.[149] It does not exist. It is void.
But, it is interesting, enticing, and irresistible so we include
it! We call it “Old Bailey.” It was replaced by “New Bailey.” “New Bailey” is a truly extraordinary
opinion. The Bailey opinions and the
administration of the Bailey Estate are getting more and more bizarre.
“In Old Bailey, the court of appeals
reversed the trial court. On rehearing,
in New Bailey, the court of appeals reversed itself. As you read Old Bailey’s discussion about which proceeding was
filed first, note that the Bailey probate administration began after Bailey’s
death in 1973, but this fact is not discussed. Either the court did not think
of it, or the court did not see any significance in the fact that the 1973 case
was the first one filed.
For those who do not think that void
proceedings in courts that lack jurisdiction may become valid proceedings by
gaining jurisdiction after the case is no longer before the court, Bailey is
astounding. Some may find it curious
that the fact that a case is pending in one court is the only basis for
claiming that a court which does not have the case before it obtain retroactive
jurisdiction. If this paragraph doesn't make sense now, after reading New
Bailey, it might.
Even the name of the Bailey case is
strange. Old Bailey and New Bailey involve the Bailey Estate, but court refers
to the party by the name of the former administrator. In Texas, reference to the administrator is sensible and perhaps
essential. But, in keeping with the
creativity of the Bailey tradition, the court opinion is named after Phifer,
the administrator who quit and was replaced by an administrator who quit and
was replaced by the current administrator of the estate. Yes, there were two
after Phifer. Phifer was long gone by the time of New Bailey. That may merely seem odd if it wasn’t for
the order and mandate[150] issued by the court which
orders that Phifer, in his capacity as administrator pay the expenses. How does
he do that since he is not the administrator?
The court doesn’t say, and perhaps didn’t think about it. Ah well, the
court of appeals had plenty on its mind. Will that issue will be resolved in
another court in an even newer Bailey?
We begin with Old Bailey. This
is the opinion that was withdrawn. It is void.
It is presented here for educational and entertainment purposes.
Old Bailey
Case #6A Phifer, administrator of the
Estate of Bailey v. Nacogdoches County Central Appraisal District April 25, 2000 (TexApp Tyler 2000)
(Opinion later withdrawn... see 6B)
Majority Opinion by Justice Worthen,
joined by Justice Hadden Dissenting Opinion by Chief Justice Murphy
Majority Opinion by Justice Worthen,
joined by Justice Hadden
“Phifer, Administrator of the Estate of Walter Earl Bailey[151]
and Co-Independent Executor[152]
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”[153] ) 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[154] 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[155]
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."[156]
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,[157]
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.[158] [159]
It further points out that if a court has not acquired subject matter
jurisdiction of the litigation, its judgment is void.[160]
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.[161] 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.[162]
It would appear that the district
court first acquired jurisdiction when the suit for delinquent taxes was filed
there in 1989.[163]
However, there are three exceptions to the rule that the court where
suit is first filed acquires dominant jurisdiction.[164]
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.[165]
“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.[166] 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.[167]
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.[168]
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."[169] [170] 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.[171]
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.[172]
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[173]
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.[174]
“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.[175]
“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.[176] [177]
The Estates took no action as a consequence of the events that occurred
from 1994 to 1997; they were not affected detrimentally.
“The parties to this dispute have finally had their day in
court, and the suit was tried in an appropriate forum. For all of the stated
reasons, I would overrule the Estates' issues one and three.”
* * * * *
New Bailey
Case #6B Phifer, administrator of the
Estate of Bailey v. Nacogdoches County Central Appraisal District October 31, 2000 (TexApp Tyler 2000) (Replaces 6A) (Opinion by
Justice Worthen)
“By its motion for rehearing, the Nacogdoches County Central
Appraisal District contends this Court erred in determining that the Cherokee
County Court at Law has jurisdiction over this case. Finding some merit to the
Appraisal District's arguments raised on rehearing, we grant its motion for
rehearing. We withdraw our opinion and
judgment of April 25, 2000 and substitute the following opinion affirming the
trial court's judgment.
“Appellant, Dwight L. Phifer, Administrator of the Estate of
Walter Earl Bailey 1 [178]
and Co-Independent Executor of the Estate of Alibe C. Bailey, appeals
from a judgment entered by the 145th Judicial District Court of Nacogdoches
County, awarding the Appraisal District delinquent property taxes and
foreclosure of a tax lien on certain real property in Nacogdoches County. That
property is also subject to a continuing probate proceeding in the County Court
at Law ("probate court") in Cherokee County. Phifer raises four
issues on appeal. We affirm the district court's judgment.
“In 1973, W.E. Bailey died intestate in Cherokee County. His
widow, Alibe C. Bailey, began probate proceedings in the probate court in
Cherokee County and was named as administratrix of the estate of W.E. Bailey.
At the time of his death, W.E. Bailey owned real property in the counties of
Cherokee, Anderson, Gregg, Nacogdoches, and Smith. The estate has not paid real
property taxes on any of this land during the pendency of the W.E. Bailey
estate. The estate remains open solely due to the unpaid property taxes.
“In 1989, the Appraisal District filed an original petition
in the Nacogdoches County District Court to collect delinquent taxes and to
foreclose upon the real property located in Nacogdoches County. The
administratrix, Alibe C. Bailey, filed a plea in abatement on behalf of the
W.E. Bailey estate. In 1992, Alibe C. Bailey died. In July 1994, the Appraisal
District filed a claim in the Cherokee County probate proceedings for the
delinquent taxes owed by the estate of W. E. Bailey on the real property
located in Nacogdoches County. In October 1994, following the rejection of its
claim by the W. E. Bailey estate, the Appraisal District filed suit in the probate
court pursuant to the probate code to pursue its claim.
“On August 13, 1997, the probate court entered an
"Order Establishing Procedures for Escrow of Taxes Involving Sales of Real
Estate" in the probate proceeding. This order was agreed upon by the
taxing authorities in the five above-named counties and by Phifer, in both his
dual capacities as administrator of the Estate of W. E. Bailey and
Co-Independent Executor of the Estate of Alibe C. Bailey. The order contained
the following paragraph:
3. The escrow fund shall be held by the administrator for
the benefit of the estate and of the creditor taxing units of Smith Count
[sic], Cherokee County, Gregg County, Nacogdoches County, and Anderson County,
all of which taxing units have various disputed claims pending against the
estate for ad valorem taxes; that such funds may not be expended or commingled
with other funds of the estate until further ordered by the Court and with
prior notice to the taxing units through their attorneys of record; and that
the liens (if any are found to exist upon final completion of the tax
litigation involving this Estate and the herein mentioned taxing authorities)
held by the taxing units, charged against the property sold, and securing
payment of ad valorem taxes, penalties, interest and costs, are transferred
from the property sold and hereby Ordered attached to such escrow funds in lieu
of the sold property itself; that such funds in escrow be held solely for the
purpose of funding payment of the taxes on the property and on other properties
of the estate upon the ultimate resolution of the pending tax litigation, but
only to the extent that such taxes are established by judgment or other final
Order of the Court; and that the specific property subject of this Order is
sold free and clear of such liens, save and except the current year tax lien
which tax year and amount is ordered to be prorated between the estate and
purchaser unless the purchaser assumes payment of such current years taxes.
“On September 29, 1997, shortly after agreeing to the
above-referenced order in the probate court, and apparently after several years
of inactivity in the district court, the Appraisal District resumed pursuit of
its claim in the district court by filing its First Amended Original Petition.
On October 14, 1998, with approval of the probate court, Phifer, in his dual
roles, sold the estates' Nacogdoches County real property to Larry and Joyce
Ellis. Phifer attempted unsuccessfully to have the district court case
dismissed for lack of jurisdiction claiming that only the probate court could
hear the Appraisal District's claims. After a hearing on the merits, the
district court entered a judgment against Phifer, in his dual capacities, in
the amount of $15,282.31. That judgment, signed May 18, 1999, further ordered
the foreclosure of the Appraisal District's lien and the sale of the
Nacogdoches County property. Phifer appealed, contesting the district court's
jurisdiction and attacking the merits of the judgment.
“In his first issue, Phifer contends that the Nacogdoches
County District Court did not have jurisdiction over the Appraisal District's
suit to collect delinquent taxes. He asserts that, pursuant to section 5 of the
Texas Probate Code, the Cherokee County Court at Law, which has original
probate jurisdiction over the Bailey estate, has the power to hear all matters
"incident to an estate" and all petitions regarding probate and
administration must be filed and heard in that court.[179]
He further contends that the Appraisal District's claims for delinquent
taxes are claims "incident to an estate" as that phrase is used in
section 5A. That phrase includes all claims against an estate and all actions
for enforcement of liens on land incident to an estate.[180]
Phifer also asserts that the Appraisal District's tax claim falls within
the definition of "claims" in section 3(c) of the Probate Code, which
provides that "claims" include liabilities of a decedent, including
taxes.[181]
Further, Phifer argues that the probate court and the district court
have concurrent venue and, pursuant to section 8, the probate court has
jurisdiction because probate proceedings were instituted there before the tax
suit was filed in district court.[182]
“The Appraisal District, however, contends that the district
court in Nacogdoches County had jurisdiction pursuant to section 33.41(a) of
the Texas Property Tax Code which states:
At any
time after its tax on property becomes delinquent, a taxing unit may file suit
to foreclose the lien securing payment of the tax, to enforce personal
liability for the tax, or both. The suit must be in a court of competent
jurisdiction for the county in which the tax was imposed.
Tex. Tax
Code § 33.41(a). The Appraisal District asserts that under Estate of Crawford
v. Town of Flower Mound,[183]
when there is a conflict between the Property Tax Code and the Probate
Code concerning proper jurisdiction for a tax suit involving real property
outside of the county where the probate is pending, then the Property Tax Code
provision controls. Apparently inspired by the holding in Crawford, the Texas
Legislature, in 1999, added Probate Code section 5C, entitled "Actions to
Collect Delinquent Property Taxes," which reads in pertinent part as
follows:
(a) This
section applies only to a decedent's estate that:
(1) is
being administered in a pending probate proceeding;
(2) owns
or claims an interest in property against which a taxing unit has imposed ad
valorem taxes that are delinquent; and
(3) is
not being administered as an independent administration under Section 145 of
this code.
(b)
Notwithstanding any provision of this code to the contrary, if the probate
proceedings are pending in a foreign jurisdiction or in a county other than the
county in which the taxes were imposed, a suit to foreclose the lien securing
payment of the taxes or to enforce personal liability for the taxes must be
brought under Section 33.41, Tax Code, in a court of competent jurisdiction in
the county in which the taxes were imposed.[184]
“In its motion for rehearing, the Appraisal District asserts
for the first time that this Court must apply new section 5C to this case. It
argues that section 5C reconciles any conflicts between the Probate Code's
jurisdictional provisions and the Tax Code's provisions by requiring this suit to
collect delinquent property taxes to be brought in Nacogdoches County, the
county in which the taxes were imposed. Even if the Cherokee County Court at
Law originally acquired jurisdiction of the Appraisal District's tax claims, it
argues, that court was divested of jurisdiction on September 1, 1999, the
effective date of new section 5C.
“Phifer responds that new section 5C is not applicable to
this case for several reasons. He argues that the Supreme Court, in Bailey v.
Cherokee County Appraisal District,[185]
held that the Cherokee County Court at Law is the court of competent
jurisdiction to adjudicate these claims. He also contends that the Appraisal
District relinquished its lien for the alleged delinquent taxes in the Agreed
Escrow Order. Further, he contends that because the estate sold the property to
the Ellises, the estate does not own or claim an interest in the property as
required by section 5C. Phifer additionally argues that 5C does not apply here
because the district court's judgment was rendered May 18, 1999 and, therefore,
the cause of action was not pending on September 1, 1999, the amendment's
effective date. Finally, Phifer argues that the new probate laws cannot be
applied to this case because retroactive application of amended Probate Code
section 317(c) would destroy his defense of limitations in violation of the
constitution's prohibition against ex post facto laws.
“The sole purpose of a motion for rehearing is to provide
the court an opportunity to correct any errors on issues already presented.[186]
A motion for rehearing does not
afford a party an opportunity to raise new issues.[187] While applicability of new
section 5C is raised for the first time on rehearing, the issue is one of
jurisdiction.[188] Therefore, the applicability of the amendment may be raised for the
first time in a motion for rehearing.[189]
“Section 5C unquestionably provides that a suit to collect
delinquent taxes on property should be brought in the county where the property
is located even when probate proceedings are pending in another county.
Accordingly, if section 5C applies, the
Nacogdoches County District Court had jurisdiction over this case and the
Cherokee County Court at Law did not. We now address whether new section 5C
is applicable to this case. The threshold inquiry is whether the legislature
expressly prescribed the statute's proper reach.[190]
If the legislature has done so, the legislative command must be obeyed
without analyzing the issue further.[191]
Thus, when the legislature has specifically provided for the
applicability of a new law to pending cases, the courts must apply the law as
intended. Additionally, it is proper to apply intervening statutes conferring
or ousting jurisdiction, whether or not jurisdiction lay when the underlying
conduct occurred or when the suit was filed.[192]
Application of a new jurisdictional rule usually takes away no
substantive right but simply changes the tribunal that is to hear the case.[193]
Present law normally governs in such situations because jurisdictional
statutes speak to the power of the court rather than to the rights or
obligations of the parties.[194]
Further, when the applicable law changes during the pendency of the
appeal, the court of appeals must render its decision in light of the change in
the law.[195]
“The legislature declared September 1, 1999 as the effective
date for new section 5C.[196]
There is no savings clause
providing that the former law is continued in effect for any purpose.[197] On the contrary, the amendment is
specifically made applicable to all
causes of action pending on September 1, 1999. Thus, the legislature
clearly intended this jurisdictional amendment to apply retrospectively to
cases that were filed prior to September 1, 1999 and that were still pending on
that date. We must apply the law as intended.[198]
This suit was filed in 1989. As
Phifer points out, the trial court's judgment was entered on May 18, 1999.
Phifer appealed to this Court in a timely manner and the cause was pending in
this Court on September 1, 1999. The fact that the district court had entered
its judgment prior to September 1, 1999 is not determinative. The applicable
law changed during the pendency of the appeal and this Court must rule in light
of the change in the law.[199] Thus, consideration of these general rules of
statutory construction directs us to apply new section 5C to this case.[200]
As we explain below, even if the legislative directive were unclear or
insufficient, there are other considerations that support this conclusion.
“We shall not attempt an unnecessary
in depth discussion of the somewhat murky history and evolution of probate
jurisdiction. We also shall not attempt to differentiate between jurisdictional
grants to constitutional county courts, statutory probate courts, and county
courts at law.[201]
Our focus here is on the authority of a district court to hear a
delinquent tax suit concerning property located in the same county as the
district court but also involved in probate proceedings pending in another
county. Keeping our narrow focus in mind, we review these subjects from a
historical perspective which also supports our determination that this case
belongs in the Nacogdoches County District Court.
“Prior to 1973, the Texas Constitution provided that
district courts had jurisdiction over certain enumerated probate matters. Tex.
Const. art. V, § 8. In 1973, section 8 was amended to expand the district
court's probate jurisdiction and provided that the legislature may change the
jurisdiction of district or county courts in probate matters. However, by amendment to the Probate Code,
the legislature has diminished the jurisdiction of the district court in
probate related matters.[202]
Current article V, section 8 of the constitution, which has been in
effect since 1985, is much more general than previous versions. It states in
pertinent part that "District Court jurisdiction consists of exclusive,
appellate, and original jurisdiction of all actions, proceedings, and remedies,
except in cases where exclusive, appellate, or original jurisdiction may be
conferred by this Constitution or other law on some other court, tribunal, or
administrative body." Tex. Const. art. V, § 8. Thus, the trend would
appear to be to require parties to try cases involving estates in the probate
court.
“On the other hand, a different picture comes to light when
considering suits to collect delinquent property taxes and enforce liens on
land. The Texas Constitution provides that the annual assessment of taxes
against land constitutes a lien on the property until the taxes have been paid.
Tex. Const. art. VIII, § 15. All property belonging to a delinquent taxpayer is
susceptible to seizure and sale for the payment of taxes under regulations as
the legislature may provide. The 1876 version of Article V, section 8
specifically granted jurisdiction for the enforcement of liens on land to the
district court. That provision remained
in tact until 1985 when it was removed in favor of the more general language
set out above providing that unless exclusive, appellate, or original
jurisdiction is conferred on another court, the district court has
jurisdiction. The Probate Code includes enforcement of liens on land among
those enumerated matters to be heard in constitutional county courts, statutory
county courts at law, statutory probate courts, and district courts when
incident to an estate.[203]
However, no other court has been given exclusive, appellate or original
jurisdiction over suits to enforce a lien on land not incident to an estate.
Thus, jurisdiction over suits to enforce a lien on land not incident to an
estate remains in the district court. However, this incident/not incident to an
estate dichotomy addresses the issue of which court within one county has
jurisdiction. It does not resolve the jurisdictional dilemma presented when the
land is in one county and probate of the estate is pending in another county.
“The legislature has, since 1943, specifically required
suits to collect delinquent property taxes to be brought in the county in which
the taxes were levied.[204]
Tax liens attach upon the land rather than upon the person, and a
foreclosure suit is a proceeding ‘in rem’ rather than ‘in personam.’[205]
It follows that a foreclosure suit should be brought in the county where
the property is located. Moreover, taxing units derive the authority to file
suit to collect delinquent property taxes from section 33.41 of the Tax Code
which directs them to file suit in the county in which the tax was imposed,
meaning in the county where the land is located.[206]
When a cause of action is derived from a statute, the statutory
provisions are mandatory and exclusive and must be complied with in all
respects or the action is not maintainable for lack of jurisdiction.[207]
This is persuasive authority for
determining that this delinquent tax suit involving land in Nacogdoches County
should be heard in the district court in that county.
“Finally, as explained in Crawford, policy considerations
favor our holding that jurisdiction over this case lies in the district court.
The jurisdictional requirement of Tax Code section 33.41(a) was imposed ‘to
ensure that governmental taxing units need not bear the burden and expense of
enforcing their taxes in every county in Texas.’[208]
Taxing authorities should not be required to first determine whether
every taxpayer is alive and then research every county in Texas to discover if
a probate proceeding is pending.[209]
The case before us provides adequate illustration of the need to curb
this burden, as various taxing authorities in each of several counties have
been involved in litigation with the Bailey estate in attempts to collect past
due taxes.
“Phifer contends that the 1993 Texas Supreme Court case
involving the Bailey estate requires this case to be tried in probate court. In
that case, the taxing authorities in Cherokee County had filed suit in the
district court in Cherokee County to collect taxes accruing on estate property
located in Cherokee County. The Supreme Court held that, because the case
constituted a claim against the estate, filed after administration had begun in
the Cherokee County Court at Law sitting in probate, jurisdiction over the
taxing authorities' claims lay with the Cherokee County Court at Law.[210]
While that case held that the Cherokee County Court at Law was the court
of competent jurisdiction to consider the Cherokee County taxing authorities'
claims, that case is not controlling
here. That case did not involve land located in a county other than the county
where probate proceedings were pending. Further, even if the land had been in
another county, section 5C was not available for the Supreme Court's
consideration.
“With regard to Phifer's assertion that section 5C does not
apply because the estate sold the property to the Ellises, Phifer misconstrues
the statute. Section 5C(a)(2) makes this section applicable to an estate that
‘owns or claims an interest’ in property owing delinquent ad valorem taxes.[211]
Section 5C instructs taxing units where to file actions to collect
delinquent property taxes. The guidelines of the statute must necessarily apply
at the time suit is filed. Otherwise, an estate could simply divest a court of
jurisdiction by selling the property between the date suit is filed and the
date of judgment. Parties cannot manipulate jurisdiction. Accordingly, we disagree that present ownership by a
third party can affect applicability of section 5C or alter its requirement
that this suit should be heard in a court of competent jurisdiction in
Nacogdoches County, the county in which the property at issue is located.
“We need not reach Phifer’s argument based on his assertion
that retroactive application of amended Probate Code Section 317(c), which
involves the presentment of claims against the estate, would constitute a
violation of his constitutional rights.[212]
Although section 317(c) was amended at the same time section 5C was
added, we need not consider its effect. Section 317(c) does not factor into a
determination of where the Appraisal District must assert its claims.
Therefore, whether retroactive application of section 317(c) would be
unconstitutional is not a question that is before us.
“This is a hybrid case to enforce a
lien on land in one county incident to an estate pending in another county.
Although ordinarily, pursuant to the Probate Code, all claims against an
estate, all actions for enforcement of liens on land incident to the estate,
and all matters relating to the settlement of the estate should be heard in the
probate court, the legislature has carved out an exception to the rule. The
legislature has made it clear that in suits to collect delinquent taxes on
property located in a county other than the county where the estate is being
probated, whether the issues are incident to or appertaining to an estate is
not controlling. In such cases, including the one before us, the Tax Code's requirement
that suit be brought in the county where the property is located controls.
Accordingly, we conclude that the Nacogdoches County District Court had
jurisdiction pursuant to section 33.41 of the Tax Code.[213] We overrule Phifer's first issue.
Comment on New Bailey
New Bailey is remarkable. Contemplate whether the court of appeals had
jurisdiction. If the trial court lacked
jurisdiction, does the court of appeals gain jurisdiction, or is its
jurisdiction no greater than the jurisdiction of the trial court? If the court of appeals lacked jurisdiction
because the trial court lacked jurisdiction, was the case “pending” in the
court of appeals. The court’s holding is dependent on the case “pending” in the
court of appeals. We repeat the court’s statement:
“[T]he cause was pending in this
Court on September 1, 1999. . . . The applicable law changed during the pendency
of the appeal and this Court must rule in light of the change in the law.[214] Thus, consideration of these general rules of
statutory construction directs us to apply new section 5C to this case.”
The rest of New Bailey does not
directly discuss jurisdiction, but it is remarkable and irresistible You may skip it, but you will be missing
out. It is astounding in this case because the trial court had no jurisdiction
until the case was in the court of appeals. The procedural issues occured in a
court which lacked jurisdiction!
Consider that as you read about them. Consider what obligation a lawyer
or party has to litigate in a void (at that time) proceeding in a court which
(at the time of the litigation) does not have jurisdiction. Retroactive
jurisdiction cab makes past actions of lawyers and parties look bad, even if
they were sensible at the time. If there
was no jurisdiction, was the party required to comply with the procedures
required in New Bailey?
“In his second issue, Phifer raises five separate issues. He
contends that the trial court erred in not allowing him to file a document
entitled "Defendant's Appearance and First Amended Plea in
Abatement," in allowing the Appraisal District to recover on a claim
barred by limitations, in failing to grant Alibe Bailey's Plea in Abatement, in
holding that Phifer, in his capacity as representative of Alibe Bailey's
estate, defaulted, and in failing to grant his oral motion for continuance. . .
.
“We need not address Phifer's argument under this issue that
the trial court erred in denying the plea in abatement filed February 12, 1990.
That was a plea to the jurisdiction, a subject we fully considered in
addressing Phifer's first issue.
“A recitation of some procedural
facts is necessary here. The Appraisal District's Original Petition, filed
December 4, 1989, named as defendants Alibe Bailey, individually and as
administratrix of the W.E. Bailey estate, William E. Bailey, and Robert E.
Bailey. The defendants filed their "Defendants' Appearance and Plea in
Abatement" on February 12, 1990, asserting that the district court lacked
subject matter jurisdiction and entering a general denial. Alibe Bailey died on
June 1, 1992. On September 29, 1997, the
Appraisal District filed its First Amended Original Petition, naming as the
sole defendant Phifer, in his capacity as administrator of the W.E. Bailey
estate. On November 10, 1997, the Appraisal District filed its Second Amended
Original Petition, naming as defendant Phifer in his capacity as administrator
of the W.E. Bailey estate and in his capacity as co-independent executor of the
Alibe Bailey estate. Phifer filed a general denial in his capacity as administrator
of the W.E. Bailey estate on November 12, 1997. He did not file a timely answer
in his capacity as co-independent executor of the Alibe Bailey estate.
“In his capacity as administrator of the W.E. Bailey estate,
Phifer filed a motion to dismiss for lack of jurisdiction on March 5, 1999,
arguing that the Cherokee County Court at Law had exclusive jurisdiction
because probate of the estates was pending there. This motion was denied by
Judge Jack Pierce on March 15, 1999, without a hearing. On May 8, 1999, Phifer
mailed a document entitled "Defendants' Appearance and First Amended Plea
in Abatement" which is file stamped as having been filed on May 10, 1999.
The parties appeared before visiting Judge Joe Clayton on May 10. At that
hearing, counsel for Phifer attempted to re-urge the question of jurisdiction,
arguing that he was, until that day, unaware that his motion to dismiss had
been ruled on. Judge Clayton agreed to reset the case to May 12 to allow Judge
Pierce to determine whether he wished to hear oral argument on the
jurisdictional issue in spite of having previously ruled on the motion to
dismiss. Judge Pierce declined to revisit the question of jurisdiction, found
that Phifer had notice of the hearing on the merits, denied leave to file Phifer's
amended pleading, denied counsel's request for a continuance, and proceeded to
hear the merits of the case. The trial judge later entered a written order
striking Phifer's amended plea.
“Phifer complains that he was not allowed to file his
amended pleading. Under Rule 63 of the Rules of Civil Procedure, a party
seeking to file an amended pleading within seven days of the date a case is set
for trial must obtain leave from the judge. Tex. R. Civ. P. 63. Where leave is
sought, the trial judge has no discretion to refuse it unless the opposing
party presents evidence of surprise or prejudice or the amendment asserts a new
cause of action or defense, and thus is prejudicial on its face, and the
opposing party objects to the amendment.[215]
“Counsel asserted that the amended pleading was placed in
the mail on May 8. It was file stamped May 10. The trial was set for May 10.
The case was actually heard on May 12. Clearly, whether considering the date
mailed or the date filed, the amendment was tendered within seven days of the
trial setting. Accordingly, Phifer was required to obtain leave of court. Leave
of court was not requested until after the document was filed. Further, the
amended pleading raises the affirmative defense of limitations and is thus
prejudicial on its face.[216]
The Appraisal District objected to the amendment. Accordingly, the trial
judge did not err in refusing to allow the amended pleading to be filed.[217]
“In a separate argument under issue two, Phifer complains of
the default judgment entered against him in his capacity as executor of Alibe
Bailey's estate. As explained, Alibe
Bailey filed a general denial in 1990, on behalf of herself individually, and
as the administrator of the W.E. Bailey estate. Phifer, on November 12,
1997, filed a general denial in his capacity as administrator of the W.E.
Bailey estate. Phifer did not file a
timely answer in his capacity as co-independent executor of the Alibe Bailey
estate. Following Alibe Bailey's death, the Appraisal District did not file
a scire facias pursuant to Rule of Civil Procedure 152 to bring Alibe Bailey's
representative into the suit. Phifer asserts that, in the absence of a scire
facias, the answer filed by Alibe Bailey in 1990 inures to Phifer's benefit in
his capacity as representative of her estate. The Appraisal District responds
that a writ of scire facias is inapplicable because it had, by its First
Amended Original Petition, effectively nonsuited Alibe Bailey by naming Phifer
only in his capacity as representative of the W.E. Bailey estate. It further
reasons that, when it filed its second amended petition naming Phifer in both
capacities, and had him served in both capacities, it brought the Alibe Bailey
estate back into the suit. Accordingly, as Phifer never answered in his capacity
as representative of the Alibe Bailey estate, the default entered against
Phifer in his capacity as representative of the estate of Alibe Bailey was
proper.
“To set aside a default judgment by motion for new trial the
movant must 1) establish that the failure to answer was not intentional or the
result of conscious indifference, 2) set up a meritorious defense, and 3)
demonstrate that setting aside the default will not cause a delay or otherwise
injure plaintiff.[218]
We review the trial court's denial of the motion for new trial under an
abuse of discretion standard.[219]
Whether the executor's failure to answer was intentional or the result
of conscious indifference is a fact question.[220]
The movant must, by affidavits accompanying its motion for new trial, set
forth facts which, if true, would negate an intentional or consciously
indifferent failure to answer.[221]
When a default judgment is attacked on direct appeal, every step of the
proceeding is open to examination.[222]
The record must affirmatively show a strict compliance with all the
necessary requisites for issuance, service, and return of process.[223]
“The rules of civil procedure provide a method for
proceeding with a pending cause of action that survives after the death of a
party. Rule 152 applies on the death of a defendant, requiring her estate's
legal representative to appear and defend the suit after being served with
scire facias. Tex. R. Civ. P. 152. The scire facias and returns thereon must
conform to the requisites of citations and returns as set out in the rules of
civil procedure.[224]
The purpose of scire facias is to substitute the legal representatives
in the decedent's place.[225]
When a writ of scire facias has issued, the deceased's legal
representative may adopt pleadings previously filed by the decedent, thereby
preventing rendition of a valid default judgment for failure to file an answer.
[226]
This procedure was not followed in this case.
“An amended pleading supersedes and supplants the original
pleading.[227]
An amended petition that omits a previously named defendant operates as
a voluntary dismissal as to that party. Webb v. Jorns, 488 S.W.2d 407, 409
(Tex. 1972). Accordingly, when the Appraisal District filed its amended
petition of September 29 in which it omitted Alibe Bailey, it dropped her from
the suit. At that point, the rules regarding the writ of scire facias,
including service pursuant to Rule 154, were inapplicable. When, on November
10, the Appraisal District filed its second amended petition naming Phifer in
his capacity as representative of Alibe Bailey's estate, it had to comply with
the rules regarding issuance, service and return of citation in order to
effectively bring him into the suit in this additional capacity.[228]
The record shows that citation, directed to Phifer in both his capacity
as representative of the W.E. Bailey estate and as representative of the Alibe
Bailey estate, was issued on March 25, 1999 and served on March 29, 1999. The
sheriff's return was properly filed thereafter.
“Phifer briefly asserted in his motion for new trial that he
should be allowed to rely on the previously filed answer of Alibe Bailey. As
explained above, that 1990 answer does not, under the facts of this case, inure
to Phifer's benefit. The Appraisal District properly served Phifer after amending
its petition to name Phifer as representative of Alibe Bailey's estate as a
defendant. Therefore, Phifer, as representative of Alibe Bailey's estate, was
properly brought into the suit. Phifer attached no affidavit to his motion for
new trial regarding the subject of his failure to answer. Phifer did not
establish that his failure to answer was not intentional or the result of
conscious indifference.[229] Accordingly, we conclude that the trial court did not err in
refusing to set aside the default judgment.
“Also under his second issue, Phifer contends the trial
court erred in failing to grant counsel's oral motion for continuance which was
based on Phifer's inability to attend trial as a witness. Counsel's oral
motion, unsupported by affidavit or consent of the Appraisal District, does not
satisfy the requisites of Rule 251 of the Texas Rules of Civil Procedure.[230]
When the provisions of Rule 251 have not been satisfied, it will be
presumed that the trial court did not abuse its discretion in denying a continuance.[231]
“Finally, under issue two, Phifer alleges it was error to
allow the Appraisal District to recover on a claim barred by limitations. This complaint goes
directly to the viability of an affirmative defense that was never pleaded. The
Rules of Civil Procedure require a claim that a plaintiff's cause of action is
barred by the applicable statute of limitations to be affirmatively set forth
in a responsive pleading.[232]
In the absence of the required pleading, this issue was not before the
trial court.[233]
Having found no merit to any of the complaints raised by Phifer in his
second issue, we overrule issue two.
“In his third issue, Phifer asserts that the trial court
erred in failing to grant his motion for new trial because the Ellises, purchasers of the Nacogdoches County property at issue,
were not joined in this suit. Phifer contends that the failure to bring
them into the suit constitutes a violation of their due process rights. A party
on appeal may not complain of errors that do not injuriously affect him or that
merely affect the rights of others.[234]
Accordingly, to the extent Phifer complains of a violation of the
Ellises' rights, he may not do so.
“Phifer further asserts that, in the Ellises' absence,
complete relief cannot be granted and he "would be in substantial risk of
incurring double liability." If
this is a complaint that the Ellises should have been joined in the lawsuit,
Phifer has waived this complaint. The Ellises became the owners of the property
on October 14, 1998. At no time prior to the date of trial did Phifer attempt
to join the Ellises in the lawsuit. At the close of the hearing on the merits,
after both sides had rested, Phifer asserted that the Ellises should have been
made parties to this suit. However, there was never a request for leave to
serve the Ellises with citation and petition. Assuming the mere mention of
joinder combined with the expression of opinion that someone should be joined
constitutes a request, it was too late.[235]
“Also under his third issue, Phifer contends that, as the
agreed order entered by the probate court removed the Appraisal District's lien
from the land and placed it on the sale proceeds, the Appraisal District cannot
foreclose on the land. As we explained, the Nacogdoches County District Court
has jurisdiction over the Appraisal District's suit for delinquent taxes. The
Cherokee County Court at Law did not have jurisdiction over the Appraisal
District's claims at the time it entered the Agreed Order. A court without
jurisdiction cannot render a valid judgment.[236]
Accordingly, the Agreed Order was null and void and did not operate to
transfer the Appraisal District's tax lien from the real property to the
proceeds of the sale.
“Additionally, Phifer contends under his third issue, that
he was not given proper notice of the
trial setting. He asserts that the failure to provide proper notice of the
trial violated his right of due process. Phifer does not assert that he did not
receive the notice that was sent. He argues only that he thought the notice was for a hearing on his motion to dismiss.
“The law presumes that a trial court will hear a case only
after proper notice to the party.[237]
To rebut this presumption, Phifer has the burden to affirmatively show a
lack of notice by affidavit or other competent evidence.[238]
Phifer filed an affidavit with his motion for new trial asserting that
he thought the notice he received related to a hearing on his motion to
dismiss. Attached to his affidavit is a copy of a notice, dated March 19, 1999,
that Phifer admits he received. That notice states that a "HEARING ON THE
MERITS" is set for May 10, 1999. Our record also contains a second notice,
dated April 13, 1999, which states that a "HEARING ON A TAX SUIT" is
set for May 10, 1999. Both notices state that the hearing was requested by the
plaintiff, a fact making Phifer's argument that he thought the hearing was on
his own motion to dismiss less credible. We conclude that Phifer did not
overcome the presumption that he received proper notice of the trial setting.[239]
Accordingly, the trial court did not err in denying Phifer's motion for
new trial based on Phifer's alleged failure to receive notice of the trial
setting. We overrule Phifer's third issue.
“In his fourth issue, Phifer contends the evidence is
insufficient to support the trial court's award of damages to the Appraisal
District. He argues that the Appraisal District's witness testified that he did
not know if the required delinquent tax notices were sent to Alibe Bailey when
she was administrator of the estate of W.E. Bailey. Phifer contends this
testimony is a judicial admission that proper notice was not sent, precluding
any award for penalties and interest. He also argues that the trial court erred
by including claims barred by limitations.
“Texas Rule of Civil Procedure 54 provides that it is
sufficient to aver generally that all conditions precedent have been performed
and when a party has so pleaded, he is required to prove only that which is
specifically denied by the opposing party. Tex. R. Civ. P. 54. Here, Phifer, as
representative of W.E. Bailey's estate, filed only a general denial and, as
representative of Alibe Bailey's estate, filed no answer. Section 33.47 of the
Tax Code provides that the delinquent tax roll constitutes prima facie evidence
that all requirements of law relating to the imposition of the tax have been
complied with.[240]
Here, when the Appraisal District introduced certified copies of the
delinquent tax record, it established its prima facie case as to every material
fact necessary to establish its cause of action, including that Phifer received
proper delinquent tax notices.[241]
Phifer presented no witnesses. Defendant's Exhibit 1, admitted during
cross-examination of the Appraisal District's witness, does not bear on the
issue of whether the property owners received delinquent tax notices. Further,
in light of Phifer's failure to specifically deny that notice was properly
given, the Appraisal District was not required to offer independent proof of
proper notice. Accordingly, the Appraisal District's evidence was sufficient to
support the trial court's damages award.[242]
“To the extent Phifer argues under this issue that the trial
court's award is erroneous because some amounts are barred by limitations, that
affirmative defense was not before the trial court and properly not considered
in calculating the damage award.[243] We overrule Phifer's fourth issue.
“We affirm the trial court's judgment.
“JIM WORTHEN, Justice
“Panel consisted of Davis, C.J., Hadden, J., and Worthen,
J.”
* * * * *
Case #7 Sabine Gas Transmission Company, et al. v. Winnie Pipeline Transmission
Company and Southeastern Marketing Company, et al March 2, 2000 15 S.W.3d 199 (TexApp
Houston [14th dist.] 2000))
In the world of Texas probate
jurisdiction, it is hard to pick one case as the "this one is takes the
cake" or "doesn’t this beat all" case. Some might nominate
Sabine. Note that the name is Sabine Gas Transmission Company, et al. v. Winnie
Pipeline Transmission Company and Southeastern Marketing Company, et al. Yes,
that is a clue. The name does not mention an estate, an executor, a dead
person, a guardian, a ward, a trustee, or a trust. This is a suit between two
gas pipeline companies. It couldn't possibly be a probate case, could it? In Texas, sure it could. Though natural gas
transmission is not a dead industry, this case is a probate jurisdiction case,
as cases go, this one is a gas.[244]
Sabine arose from alleged bribes and
kickbacks taken under a percentage gas sales contract. The Sabine case was in
the Montgomery County District Court, which had jurisdiction. Then the
TexasTwoStep began. In the first step, the Harris County Probate Court #2
reached out and plucked this case from the Montgomery County District Court. In
the second step, that same Harris County Probate Court #2 dismissed the case on
the grounds that the Harris County's Probate Court #2 no longer had
jurisdiction. One wonders if Dennis the
Menace grew up and became a judge. But this was only the beginning.
The dismissal was appealed. The
Fourteenth Court of Appeals provides a detailed analysis of its reasons for
concluding that the Probate Court erred in dismissing the case for lack of
jurisdiction because the Probate Court did have jurisdiction.
Pause and reflect for a moment. The Probate Court dismissed a case for lack
of jurisdiction. That was erroneous. So, what does the Fourteenth Court do?
Does it reverse? No. It holds that,
even though the Probate Court had jurisdiction, that court could dismiss this
case over which it did have jurisdiction, so... no harm, no foul, no
reversal. The dismissal is affirmed.
Isn’t Texas probate jurisdiction
fun! The dismissal was without
prejudice. The parties, having been to
the Montgomery County District Court, Harris County Probate Court #2 and 14th District
Court of appeals may refile their suit and see what the courts do next[245] So far, the litigants and
courts have accomplished . . . nothing. And, you ask, what about the statute of
limitations and concept of judicial economy?
Well, what about it? We turn to
the case itself.
An Alternative to Texas Trial Court
Probate Jurisdiction Problems?
If you find estate litigation in
Texas courts is frightening because the litigation and judgment may be void,
you may wish to consider alternatives.
Alternate dispute resolution procedures such as mediation, or
arbitration may be desirable. If the
parties all agree, you might litigate in a “private court” rather than the
“government court.” Of course, getting
all the parties to agree on anything can be impossible in probate
litigation. There often are numerous
parties with numerous lawyers. The hurt
feelings, anger, resentment and greed can be deep. Sometimes the feelings which motivate parties are based on
factors unrelated to the case.
Nevertheless, they might agree to litigate in a forum which would
resolve the dispute within their lifetime.
It may be worth considering. It
might at least eliminate litigation over the issue of whether the litigation is
void.
Thank You
Thank you for your
business! We hope you found this course
educational, interesting, and useful.
Please follow the link on YouKnowItAll.com to the Discussion Group page
where you will find the Discussion Group as well as the Registration,
Evaluation, Certification of Time Spent, and payment instructions.
[1]
Probate and guardianship jurisdiction are similar. For brevity, only the word probate will be
used hereafter.
[2]
See Weldon v. Hill, 678 S.W.2d 268, 274 (Tex. App.-Fort Worth 1984, writ
ref'd n.r.e.)
[3]
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.
[4]
References to particular publishers of public domain material 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] The issue of finality of orders in Columbia is reviewed in
YouKnowItAll.com’s course on Texas appellate probate jurisdiction.
[7]
1 In order to secure a lien a hospital must file written notice of the
lien with the county clerk of the county in which the injury occurred. See Acts
1983, 68th Leg., p. 3563, ch. 576, 1, eff. Jan. 1, 1984, amended by Acts 1995,
74th Leg., ch. 1031, 1, eff. Aug. 28, 1995 (current version at Tex. Prop. Code
55.005.
[8]
2 A hospital lien attaches to a
cause of action for damages arising from an injury for which the hospital
provided treatment, as well as to any proceeds from settlement of that action
or the underlying claim brought by the injured individual or another person
entitled to make the claim. See Tex. Prop. Code 55.003. A hospital lien does not
attach to a wrongful death award or judgment. See Tarrant County Hospital Dist.
v. Elsie Jones, 664 S.W.2d 191, 195 (Tex. App.--Fort Worth 1984, no writ).
[9]
See McRoberts v. Ryals, 863 S.W.2d 450, 452-53 (Tex. 1993) (order
severing part of a lawsuit is effective when it is signed).
[10]
Mafrige v. Ross, 866 S.W.2d 590, 591 n.5 (Tex.1993); H. B. Zachry Co. v.
Thibodeaux, 364 S.W.2d 192, 193 (Tex.1963).
[11]
Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).
[12]
Id.
[13]
See Tex. R. App. P. 38.1(h); Nuchia v. Woodruff, 956 S.W.2d 612, 620
(Tex. App.--Houston [14th Dist.] 1997, pet. denied) (appellate rules require
brief to contain argument for contentions made, with appropriate citations to
authorities and record). Issues not supported by argument and authorities are
deemed waived, and we need not address the second and third elements of
Stover's res judicata defense. See Miksch v. Exxon Corp., 979 S.W.2d 700, 706
(Tex. App.--Houston [14th Dist.] 1998, pet. denied) (citing Trenholm v.
Ratcliff, 646 S.W.2d 927, 934 (Tex.1983)).
[14] Tex. Prob. Code 145(h).
[15]
see Bunting v. Pearson, 430 S.W.2d 470, 473 (Tex. 1968)
[16]
See Herbst v. Sheppard, 995 S.W.2d 310, 313-14 (Tex. App.--Corpus
Christi 1999, writ denied) (probate code section 145(h) only prohibits further
action in the county court); [footnote 3
by the court: "Unlike this case, Herbst involved an independent
administration in a constitutional county court."] Womack v. Redden, 846 S.W.2d 5, 8 (Tex.
App.--Texarkana 1992, writ denied) (county court sitting in probate had
jurisdiction over independent executor to determine homestead rights of
parties); Estate of Kuenstler v. Trevino, 836 S.W.2d 715, 718-19 (Tex.
App.--San Antonio 1992, no writ) (statutory probate court had jurisdiction over
independent executors in declaratory judgment suit concerning debt owed by
estate); Weldon v. Hill, 678 S.W.2d 268, 274 (Tex. App.--Fort Worth 1984, writ
ref'd n.r.e.) (section 145(h) only prohibits further action in county court and
is silent as to prohibition of actions in all other courts).
[17]
Tex. Prob. Code 5(c), (e)
[18]
See Tex. Prob. Code 5(c)
[19]
Id. at 5(e).
[20]
Cf. Womack, 846 S.W.2d at 9 (section 5(e) is general grant of authority
to county courts in counties where there is no other statutory court exercising
jurisdiction of probate court).
[21]
See Tex. Prob. Code 5A(a); cf. Herbst, 995 S.W.2d at 313.
[22]
See, e.g., Pullen v. Swanson, 667 S.W.2d 359, 362 (Tex. App.--Houston
[14th Dist.] 1984, writ ref'd n.r.e.) (citing English v. Cobb, 593 S.W.2d 674,
676 (Tex. 1979) and Lucik v. Taylor, 596 S.W.2d 514 (Tex. 1980)) (action is
"incident to an estate" when outcome will have direct bearing on
assimilation, collection, and distribution of estate).
[23]
423 S.W.2d 946, 951-52 (Tex. Civ. App.--San Antonio 1967, writ ref'd
n.r.e.)
[24]
See English, 593 S.W.2d at 675-76.
[25] Lucik, 596 S.W.2d at 516 (citing English, 593 S. W. 2d at
675).
[26]
See Tex. Prob. Code 5A(a).
[27]
There are no statutory probate courts in Hidalgo County. See Tex. Gov't
Code 25.1101
[28]
Columbia complains only that the probate order barring its claim in
cause number 25,040-D, is void for lack of jurisdiction. Columbia does not
argue that it is not a final order. See Tex. R. App. P. 38.1(h)
[29]
See Tex. Prob. 5(f)(final orders of any court exercising original
probate jurisdiction are appealable to courts of appeals)
[30]
See Walton v. First Nat'l Bank of Trenton, 956 S.W.2d 647, 650 (Tex.
App.--Texarkana 1997, writ denied) (because estate did not appeal from final
probate order approving bank's claim, order became final judgment not
vulnerable to collateral attack); cf. Carroll v. Carroll, 893 S.W.2d 62, 68-69
(Tex. App.--Corpus Christi 1994, no writ) (void order subject to collateral
attack).
[31]
After the county court entered its order discharging the administrator
and closing the estate, its jurisdiction over the proceeding ended, and it had
no power to enter any further orders. See 17 M.K. Woodward & Ernest Smith,
III, Probate and Decedents' Estates § 6 (Texas Practice).
[32]
If you were not born before 1957 you may find the elapsed time
remarkable, but, in probate litigation old age is common, even for wills and
cases.
[33]
See the later references to county court at law.
[34]
Does this court think that the executor or probate court transfers
property from the estate to the beneficiary under Texas law? Is the county court merely erroneously
reciting what the will says, rather
than carefully construing it? If it
just restates the will and the will is he conveying instrument, does the
statement have any effect? If the will
controls, isn’t the county court statement similar to dicta?
[35]
The San Antonio Court of Appeals thinks title passes pursuant to the
order of the probate court rather that pursuant to the Will. Do you agree?
[36]
You were probably born before 1984. Time marches on.
[37]
See reference to county court earlier.
[38]
Cf. Bank of Southwest, Nat'l Assoc. v. Stehle, 660 S.W.2d 572, 574 (Tex.
App.-San Antonio 1983, writ ref'd n.r.e.) (suit for title filed in district
court while administration of estate was pending in probate court was properly
dismissed because probate court had acquired exclusive jurisdiction over cause of action incident to estate).
[39]
See Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559, 561-62 (1948).
[40]
See Tex. Prob. Code § 5(c).
[41]
See Palmer v. Coble Wall Trust Co. Inc., 851 S.W.2d 178, 180 n. 3 (Tex.
1992).
[42]
But, didn’t they file in the county court at law?
[43]
See Tex. Const. art. V, § 16; Tex. Prob. Code § 4.
[44]
A county court at law exercising probate jurisdiction is not a statutory
probate court unless the court is designated a statutory probate court under
the Government Code. Tex. Prob. Code § 3(ii); see also Tex. Gov't Code §
25.0003(f). Starr County has one statutory county court ("County Court at
Law"), which has concurrent probate jurisdiction with the constitutional
county court. See Tex. Gov't Code § 25.2161. Starr County does not have a
"statutory probate court." See id.
[45]
Tex. Prob. Code § 4.
[46]
See Langehennig v. Hohmann, 139 Tex. 452, 163 S.W.2d 402, 405 (Tex.
Comm'n App. 1942, opinion adopted); see Statute Note, Probate Code Section 5:
Jurisdictional Expansion Through Redefinition: Is It Constitutional?, 37 Baylor
L. Rev. 291, 294 (1985) (general discussion regarding history of probate jurisdiction
prior to 1973).
[47]
See Tex. Const. art. V, § 8 (district court jurisdiction consists of
exclusive, appellate, and original jurisdiction of all actions, proceedings,
and remedies, except in cases were exclusive, appellate, or original
jurisdiction may be conferred by constitution or other law on some other court,
tribunal, or administrative body)
[48]
Benson v. Greenville Nat'l Exch. Bank, 253 S.W.2d 918, 925 (Tex. Civ.
App.-Texarkana 1952, writ ref'd n.r.e.).
[49]
The county court order was in 1957. What was the basis for
jurisdiction. Is the 1957 order void
for lack of subject matter jurisdiction to the extent that it [mis]construes a
will?
[50]
Statute Note, Probate Code Section 5: Jurisdictional Expansion Through
Redefinition: Is It Constitutional?, 37 Baylor L. Rev. 291, 294-95 (1985).
[51]
If the new system was reform, perhaps they should have left it as it
was. Could anything be worse that todays Byzantine system?
[52]
Id. at 95-96
[53]
See Tex. Prob. Code § 5(d).
[54]
See Sumarak v. Todd, 560 S.W.2d 141, 144 (Tex. Civ. App.-Tyler 1977, no
writ).
[55]
See 17 M.K. Woodward & Ernest Smith, III, Probate and Decedents'
Estates § 6.
[56]
862 S.W.2d 581, 585 (Tex. 1993)
[57]
We revisit the remarkable Bailey
adventure through the world of unpaid taxes and probate jurisdiction later in
this course.
[58]
797 S.W.2d 184 (Tex. App.-Corpus Christi 1976, writ denied).
[59]
Crawford, 797 S.W.2d at 184.
[60]
Id.
[61]
Id.
[62]
Id. at 185-86.
[63]
See id. at 186.
[64]
See id. at 185.
[65]
550 S.W.2d 146 (Tex. App.-Amarillo 1977, writ ref'd n.r.e)
[66]
Gordy, 550 S.W.2d at 147-48.
[67]
Palmer, 851 S.W.2d at 180 n. 3.
[68]
See Tex. Prob. Code § 5(c), (d).
[69]
See Crawford, 797 S.W.2d at 186.
[70]
Does the court of appeals believe that final probate orders account for
springing executory interests in real estate which are created by the will and
have not sprung?
[71] “Granted” is a technical term. In
Texas, does a probate court order "grant?" Some Texas lawyers think that the Will acts like a deed. This court thinks the court "grants." What would this court think of a
"muniment of title" or a probate order that admits a Will to probate
without granting anything? What do you
think?
[72]
What notice was given of the order?
Is notice of probate orders routinely given. Does notice matter?
[73]
See Pursley v. Ussery, 937 S.W.2d 566, 568 (Tex. App.-San Antonio 1996,
no writ).
[74]
Id. at 567.
[75]
See Crawford, 797 S.W.2d at 186.
[76]
Can an entire case be transferred, or only a "contested
matter?" See Texas Probate Code §5
[77]
1 In his brief, Lloyd contends
the county court at law lacked subject-matter jurisdiction to impose a
constructive trust. The Texas Supreme Court has recently overruled prior
caselaw in which a party's failure to comply with all the requirements of a
statutory cause of action is treated as a jurisdictional matter. See Dubai
Petroleum Co. v. Kazi, 43 Tex. Sup. Ct. J. 246, 247-49 (Jan. 6, 2000).
Accordingly, we will consider Lloyd's claims that the court has no
subject-matter jurisdiction as claims that the court had no statutory authority
to act as it did.
[78]
See Qualia v. Qualia, 878 S.W.2d 339, 341 (Tex. App.-San Antonio 1994,
writ denied); Green v. Watson, 860 S.W.2d 238, 243-44 (Tex. App.-Austin 1993,
no writ); Ragland v. Ragland, 743 S.W.2d 758, 759 (Tex. App.-Waco 1987, no
writ); Mejorada v. Gonzalez, 663 S.W.2d 891, 892-93 (Tex. App.-San Antonio
1983, no writ).
[79]
Qualia, 878 S.W.2d at 341; Green, 860 S.W.2d at 243-44; Ragland, 743
S.W.2d at 759; Mejorada, 663 S.W.2d at 892-93. We agree with this interpretation
of section 5A.
[80]
We do not agree with the portion of Qualia opinion that cites Property
Code section 115.001-defining the district court's exclusive jurisdiction over
trusts-to the extent that the opinion implies section 115.001 addresses
constructive trusts, because Property Code section 111.003 specifically
excludes constructive trusts from the definition of a "trust" as used
in the Texas Trust Code. TEX. PROP. CODE §§ 111.001-115.017; Qualia, 878 S.W.2d
341-42. Section 115.001 is a part of the Texas Trust Code.
[81]
See Act of May 23, 1989, 71st Leg., R.S., ch. 1035, § 3, 1989 Tex. Gen.
Laws 4162, 4163.
[82]
See Act of May 30, 1993, 73d Leg., R.S., ch. 957, § 1, 1993 Tex. Gen.
Laws 4081, 4081 (TEX. PROB. CODE §§ 601-892, since amended).
[83]
3 We note there is no "mirror" provision in section 607(b)
concerning the power of statutory probate courts and district courts to impose
constructive trusts in guardianship proceedings.
[84]
HOUSE COMM. ON JUDICIAL AFFAIRS, BILL ANALYSIS, Tex. C.S.H.B. 2685, 73d Leg.,
R.S. (1993).
[85]
See TEX. GOV'T CODE §§ 25.0004(c) (statutory county courts at law have
all other powers provided for constitutional county courts), 26.050 (powers of
law and equity of constitutional county court).
[86]
TEX. GOV'T CODE § 74.121(b)(1).
[87]
4 The judge of a statutory county court may transfer a case to the
docket of the district court, except that a case may not be transferred without
the consent of the judge of the court to which it is being transferred and may
not be transferred unless it is within the jurisdiction of the court to which
it is transferred.
[88]
Did the "case" continue but "change" or did the
guardianship case end and a new probate case begin?
[89]
Note the lack of an argument in this case that the county court at law
may not transfer the matter to the district court. See Texas Probate Code § 5.
Jurisdiction of District Court and Other Courts of Record With Respect to
Probate Proceedings and Appeals from Probate Orders. Compare §5(b) with §5(c)
(a) The district court shall have original
control and jurisdiction over executors and administrators under such regulations as may be prescribed by law.
(b) In those
counties where there is no 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 the county court, except that in contested probate
matters, the judge of the county court may on his own motion (or shall on the
motion of any party to the proceeding, according to the motion) request as
provided by Section 25.0022, Government Code, the assignment of a statutory
probate court judge to hear the contested portion of the proceeding, or
transfer the contested portion of the proceeding to the district court, which
may then hear contested matter as if originally filed in district court. If the
judge of the county court has not transferred a contested probate matter to the
district court at the time a party files a motion for assignment of a statutory
probate court judge, the county judge shall grant the motion and may not
transfer the matter to district court unless the party withdraws the motion. A
statutory probate court judge assigned to a contested probate matter as
provided by this subsection has for that matter the jurisdiction and authority
granted to a statutory probate court by Sections 5A and 5B of this code. The
county court shall continue to exercise jurisdiction over the management of the
estate with the exception of the contested matter until final disposition of
the contested matter is made by the assigned judge or the district court. In
contested matters transferred to the district court in those counties, the
district court, concurrently with the county court, shall have the general
jurisdiction of a probate court. Upon resolution of all pending contested
matters, the contested portion of the probate proceeding shall be transferred
by the district court to the county court for further proceedings not
inconsistent with the orders of the district court. If a contested portion of
the proceeding is transferred to a district court under this subsection, the
clerk of the district court may perform in relation to the transferred portion
of the proceeding any function a county clerk may perform in that type of
contested proceeding.
(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 probate 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.
[90]
783 S.W.2d 783, 785-86 (Tex. App.-Houston [1st Dist.] 1990, no writ)
[91]
Id. at 784.
[92]
Id. at 784.
[93]
Id. at 785-86.
[94]
Compare to Garza in which the
San Antonio Court of Appeals assumes that a court order, rather than the Will,
determines passage of title.
[95]
Tex. Gov't Code § 25.0003(e).
[96]
Tex. Gov't Code § 25.0595.
[97]
Tex. Gov't Code § 25.0021.
[98]
Tex. Prob. Code § 5(c).
[99]
Tex. Prob. Code § 5(e).
[100]
See Tex. Prob. Code § 5A.
[101]
Bailey v. Cherokee County Appraisal Dist., 862 S.W.2d 581, 585 (Tex.
1993) (op. on reh'g).
[102]
See Goodman v. Summit at West Rim, Ltd., 952 S.W.2d 930, 933 (Tex.
App._Austin 1997, no pet. ); see also Pullen v. Swanson, 667 S.W.2d 359, 363
(Tex. App._Houston [14th Dist.] 1984, writ ref'd n.r.e. ) (interpreting probate
code to mean that statutory probate court has power to hear all matters
incident to an estate "only in those instances where a probate proceeding,
such as an administration of an estate, is actually pending in the court at the
time suit is filed").
[103]
Qualia v. Qualia, 878 S.W.2d 339, 341 (Tex. App._San Antonio 1994, writ
denied ) (op. on reh'g); Sumaruk v. Todd, 560 S.W.2d 141, 144 (Tex. Civ.
App._Tyler 1977, no writ).
[104]
See Texas Parks & Wildlife Dep't v. Garrett Place, Inc., 972 S.W.2d
140, 142 (Tex. App.-Dallas 1998, no pet.).
[105]
Id.
[106]
See Hampton v. University of Tex._M.D. Anderson Cancer Ctr., 6 S.W.3d
627, 629 (Tex. App.-Houston [1st Dist.] 1999, no pet.).
[107]
Garrett Place, Inc., 972 S.W.2d at 142-43.
[108]
Id.
[109]
1 Specifically, Schuld alleged
that: (1) she owned one-fifth of the property (one-tenth interest was conveyed
to her by her brother, Leo Anthony Pete, by quitclaim deed); (2) Henson owned
six-tenths (one-tenth from her mother and all of her father's one-half
interest); and (3) Dembrinski and William Dale Pete each owned one-tenth.
[110]
See generally Tex. Prob. Code §§ 5, 5A; see also Goodman, 952 S.W.2d at
933 ("A probate court is a specialized court that exists primarily for the
limited purpose of administering decedents' estates.").
[111]
2 Although we are bound by the allegations in the petition, we are
compelled to note that even Henson, in her plea to the jurisdiction, did not
dispute her mother owned a portion of the property, died without a will, and
left five children. Henson simply claims "sole ownership" by virtue of
her father's will and asserts various theories under which she claims Schuld
would be precluded from taking her share.
[112]
Is this something other that rhetorical gymnastics?
[113] Cf. Clark v. Barr, 239 S.W.2d 114, 115 (Tex. Civ. App._Fort
Worth 1951, no writ ) (probate court's order reciting no administration of
estate necessary and admitting will to probate as muniment of title did not
render order "any less final or effective").
[114]
See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 447-48
(Tex. 1996) (construing government code to provide concurrent jurisdiction to
county court at law in retaliatory discharge cases).
[115]
1 The appellants requested the trial court to state in writing its
findings of fact and conclusions of law, but the trial court declined to do so.
[116]
Motions that challenge jurisdiction are often the wrong motion. The wrong motion is often granted. The court
of appeals seems to enjoy criticizing the error and stating that the error
doesn't affect the outcome.
[117]
2 "A motion in limine is a procedural device that permits a party
to identify, before trial, certain evidentiary rulings that the court may be
asked to make." MICHOL O'CONNOR, ET AL., O'CONNOR'S TEXAS RULES CIVIL
TRIALS 225 (1999). The purpose of filing a motion in limine is "to prevent
the presentation of potentially prejudicial information" in front of a
jury before a ruling can be obtained.
In a particular circumstance, i.e., will contests, a motion in limine is
the proper method of disputing the interest of the party contesting the
will. However, we are not aware of any
case in which a trial court has utilized a hearing in limine proceeding to
decide standing in anything other than a will contest. Here, the appellants
seek to set aside a deed; they are not contesting Geraldine's will. To the
contrary, their claim depends upon the validity of her will.
[118]
See Trevino v. Lerma, 486 S.W.2d 199, 200 (Tex. Civ. App.-Beaumont 1972,
no writ) (concerning determining heirship in a suit to set aside a deed); see
also Howe State Bank v. Crookham, 873 S.W.2d 745, 746 & 749-50 (Tex.
App.-Dallas 1994, no writ) (concerning a matter incident to an estate).
[119] See Speer v. Stover, 685 S.W.2d 22, 23 (Tex. 1985).
[120]
See Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440,
446 (Tex. 1993).
[121]
See Firemen's Ins. Co. of Newark, N.J. & C.I.T. v. Board of Regents
of the U. T. Sys., 909 S.W.2d 540, 542 (Tex. App.-Austin 1995, writ denied).
[122]
See Texas Ass'n of Bus., 852 S.W.2d at 446; Firemen's Ins. Co., 909
S.W.2d at 542.
[123]
See Texas Ass'n of Bus., 852 S.W.2d at 446.
[124]
See id.
[125]
See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex.
1996).
[126]
See Bell v. State Dept. of Highways & Pub. Transp., 945 S.W.2d 292,
295 (Tex. App.-Houston [1st Dist.] 1997, writ denied).
[127]
See Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex. 1998).
[128]
See Bowles v. Wade, 913 S.W.2d 644, 649 (Tex. App.-Dallas 1995, writ
denied).
[129] If it was pled, the admission is irrelevant. Is the court relying on the admission to establish
a “fact” that is "false?"
[130]
Note that the court looks to the Will to transfer ownership. It does not look at a court order. Compare
to Garza, infra.
[131]
See TEX. CONST. art. V, § 8; TEX. GOV'T CODE § 24.007; see also Trevino,
486 S.W.2d at 200
[132]
3 We do not dispute that proceedings to determine heirship are under the
exclusive jurisdiction of the county court sitting in probate and that the
district court has no such original jurisdiction. However, this provision is not dispositive of the case presented
by our record because this case was brought to set aside a deed and not to
determine heirship.
[133]
See Bell v. Hinkle, 562 S.W.2d 35, 37-38 (Tex. Civ. App.-Houston [14th
Dist.] 1978, writ ref'd n.r.e.).
[134]
Does this differ from the Shuld
case in this course text.
[135]
See Estate of Maxey, 559 S.W.2d 458, 460 (Tex. Civ. App.-Texarkana 1977,
writ ref'd n.r.e.); see also Trevino, 486 S.W.2d at 200 (finding the district
court had exclusive jurisdiction to determine heirship in suit to set aside a deed
[136]
See TEX. PROB. CODE § 48.
[137]
See id. at § 3.
[138]
See Vinson & Elkins v. Moran, 946 S.W.2d 381, 389 (Tex. App.-Houston
[14th Dist.] 1997, writ dism'd by agr.).
[139]
See Glenney v. Crane, 352 S.W.2d 773, 777 (Tex. Civ. App.-Houston 1961,
writ ref'd n.r.e.); see also McMeens v. Pease, 878 S.W.2d 185, 190 (Tex.
App.-Corpus Christi 1994, writ denied) (finding a suit to set aside a deed is a
suit of a personal nature and not a suit to recover real estate).
[140]
It is irrelevant where the heirs live when deciding where to bring an
heirship proceeding. See TEX. PROB.
CODE § 48.
[141]
Courts, with their droll sense of humor, like to mention judicial
economy, even in cases in which every party dies before the first court
dismisses for lack of jurisdiction, the dismissal is subsequently reversed, and
the substance of the case has not yet been addressed by a court.
[142]
See Texas Ass'n of Bus., 852 S.W.2d at 446.
[143]
See TEX. R. CIV. P. 151.
[144] See Bluitt v. Pearson, 117 Tex.
467, 7 S.W.2d 524, 525 (1928); Trevino, 486 S.W.2d at 200.
[145]
See id.
[146]
See Continental Coffee, 937 S.W.2d at 449.
[147]
862 S.W.2d 581, 585-86 (Tex. 1993)
[148]
April 25, 2000 (TexApp Tyler 2000)
[149]
The Texas Supreme Court Bailey opinion was also an opinion on
rehearing. Bailey seems to inspire
second thoughts.
[150]
“It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the
court below be in all things affirmed, and that all costs of this appeal are
hereby adjudged against the appellant, DWIGHT L. PHIFER, ADMINISTRATOR OF THE
ESTATE OF WALTER EARL BAILEY, DECEASED AND CO-INDEPENDENT EXECUTOR OF THE
ESTATE OF ALIBE C. BAILEY, for which execution may issue, and that this
decision be certified to the court below for observance."
[151]
On October 29, 1999, Dwight Phifer, the administrator and co-independent
executor of the above estates resigned as administrator of the W.E. Bailey
Estate, and was replaced in his capacity as administrator of the W.E. Bailey
Estate by Allen W. Ross. Phifer also resigned as Co-Independent Executor of the
Estate of Alibe Carter Bailey, and was replaced by Allen W. Ross on November
10, 1999. Thereafter, on January 10, 2000, Ross resigned as administrator and
the court appointed Eldridge Moak as Successor Administrator of the W.E. Bailey
Estate. Because this Court's jurisdiction over this appeal was triggered when
Phifer was serving in his fiduciary roles, we will continue the appeal in his
name.
[152]
“Co-independant” is an abomination of the English language which is used
without thought by many Texas lawyers and judges. Executors are not
co-independent. These are co-executors who are independent. They are
“independent co-executors.”
[153]
This is the county court at law, not a statutory probate court.
[154]
This is the county court at law, not a statutory probate court.
[155]
“Co-independant” is an abomination of the English language which is used
without thought by many Texas lawyers and judges. Executors are not
co-independent. These are co-executors who are independent. They are “independent
co-executors.”
[156]
TEX. PROB. CODE § 5(e).
[157]
933 S.W.2d 727 (Tex. App. - Fort Worth 1996, writ denied)
[158]
Although not in effect at the time of the controversy in this case, the
holding in Crawford was codified by the Texas Legislature in 1999 with the
passage of House Bill No. 3549, ch. 1481, 76th Leg., § 36, eff. Sept. 1, 1999,
which amended ch. I, Texas Probate Code, by adding section 5(C) which reads in
pertinent part as follows:
(a) This section applies only to a
decedent's estate that:
(1) is being administered in a
pending probate proceeding;
(2) owns or claims an interest in
property against which a taxing unit has imposed ad valorem taxes that are
delinquent; and
(3) is not being administered as an
independent administration under Section 145 of this code.
(b) Notwithstanding any provision of this code to the contrary, if the
probate proceedings are pending in a foreign jurisdiction or in a county other
than the county in which the taxes were imposed, a suit to foreclose the lien
securing payment of the taxes or to enforce personal liability for the taxes
must be brought under Section 33.41, Tax Code, in a court of competent
jurisdiction in the county in which the taxes were imposed.
[159]
Tex. H.B. 3549, 76th Leg., R.S. (1999).
[160]
American Universal Ins. v. D.B.&B., Inc., 725 S.W.2d 764, 766 (Tex.
App. - Corpus Christi 1987, writ ref'd n.r.e.).
[161]
TEX. PROB. CODE § 5A(a), (c) and (d) ; see also Bailey v. Cherokee Co.
Appraisal Dist., 862 S.W.2d 581, 585-86 (Tex. 1993).
[162]
Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988); Curtis v.
Gibbs, 511 S.W.2d 263, 267 (Tex. 1974); Niemeyer v. Tana Oil & Gas Corp.,
952 S.W.2d 941, 943 (Tex. App. - Austin 1997, no writ).
[163]
TEX. TAX CODE § 33.41(a); Crawford, 933 S.W.2d at 731.
[164]
Wyatt, 760 S.W.2d at 248.
[165]
Id.; V. D. Anderson Co. v. Young, 128 Tex. 631, 636, 101 S.W.2d 798, 800
(1937); Cleveland v. Ward, 116 Tex. 1, 19, 285 S.W. 1063, 1070 (1926); In re
McCall, 967 S.W.2d 934, 936 (Tex. App. - Corpus Christi 1998, orig.
proceeding).
[166]
Further, it should be noted 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. As a general rule, a court in which suit is first filed acquires
dominant jurisdiction to the exclusion of other coordinate courts. Mower v.
Boyer, 811 S.W.2d 560, 563 (Tex. 1991). When it is called to the attention of
the second court, which has jurisdiction, that a previous court has dominant
jurisdiction, the second court must sustain any plea in abatement and dismiss
the subsequent action. Id.; Goodwin v. Kent, 745 S.W.2d 466, 469 (Tex. App. -
Tyler 1988, orig. proceeding). However, if a party allows a suit to proceed in
two different courts, each of which has jurisdiction, and does not file a
timely plea in abatement, the court which last acquired jurisdiction can
determine issues before it which have a preclusive effect on the previously
pending proceeding. Mower, 811 S.W.2d at 563. We do not agree with the dissent
that Mower stands for the proposition that estoppel can only apply when there
has been "reprehensible conduct." A party may be estopped merely by
taking "an inconsistent position, attitude or course of action" to
the detriment of an opposing party. Brand v. Farmers Mut. Protective Ass'n of
Tex., 95 S.W.2d 994, 997 (Tex. Civ. App. - Austin 1936, no writ).
[167]
Where two courts have coordinate jurisdiction, but it has been
determined that one court has dominant jurisdiction over a case, and another
court does not, the Texas Supreme Court has authorized either abatement or
dismissal of the latter case pending final disposition of the case pending in
the court with dominant jurisdiction. See Miles v. Ford Motor Co., 914 S.W.2d
135, 13 (Tex. 1995). Having examined both methods of disposition, we have
determined that abatement rather than dismissal of the district court suit is
the more appropriate remedy. See id.; Wyatt v. Shaw Plumbing Co., 760 S.W.2d
245, 248 (Tex. 1988).
[168]
TEX. TAX CODE ANN. § 33.41(a) (Vernon Supp. 2000); Crawford v. Town of
Flower Mound, 933 S.W.2d 727, 730-31 (Tex. App. - Fort Worth 1996, writ
denied).
[169]
Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974).
[170]
Curtis was a mandamus/prohibition proceeding in which the second court
had overruled the plaintiff's plea in abatement asserting that the first court
had dominant jurisdiction. The same conduct would apply where no plea in
abatement had been filed in the second court as here.
[171]
862 S.W.2d 581 (Tex.1993).
[172]
The court does not discuss this basis for determining jurisdiction.
[173] “Co-independant” is an abomination
of the English language which is used without thought by many Texas lawyers and
judges. Executors are not co-independent. These are co-executors who are
independent. They are “independent co-executors.”
[174]
Apparently the Chief Justice does not know the facts, but freely
speculates. Could it be that the
speculation is erroneous and the probate court hasn’t decided what to do with
the funds?
[175]
Mower, 811 S.W.2d at 563; Estate of Maxey, 559 S.W.2d 458, 460-61 (Tex.
Civ. App. - Texarkana 1977, writ ref'd n.r.e ).
[176]
Brand, 95 S.W.2d at 987.
[177]
The Appraisal District only brought its long pending claim to trial.
[178]
1 On October 29, 1999, Dwight Phifer, the administrator and
co-independent executor of the above estates resigned as administrator of the W.E.
Bailey Estate, and was replaced in his capacity as administrator of the W.E.
Bailey Estate by Allen W. Ross. Phifer also resigned as Co-Independent Executor
of the Estate of Alibe Carter Bailey, and was replaced by Allen W. Ross on
November 10, 1999. Thereafter, on January 10, 2000, Ross resigned as
administrator and the court appointed Eldridge Moak as Successor Administrator
of the W.E. Bailey Estate. Because this Court's jurisdiction over this appeal
was triggered when Phifer was serving in his fiduciary roles, we will continue
the appeal in his name.
[179]
See Tex. Prob. Code § 5(e).
[180]
See Tex. Prob. Code § 5A(a)
[181]
See Tex. Prob. Code § 3(c).
[182]
See Tex. Prob. Code § 8(a)
[183]
933 S.W.2d 727 (Tex. App. Fort Worth 1996, writ denied)
[184]
Tex. Prob. Code § 5C(a), (b)
[185]
862 S.W.2d 581 (Tex. 1993) (on reh'g)
[186]
Wentworth v. Meyer, 839 S.W.2d 766, 778 (Tex. 1992) (Cornyn, J.,
dissenting).
[187]
Id.
[188]
Is this correct, or is it the lack of jurisdiction that can be raised at this time, or any
time?
[189]
See Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991); Texas
Alcoholic Beverage Comm'n v. Sfair, 786 S.W.2d 26, 27 (Tex. App. San Antonio
1990, writ denied) (on reh'g).
[190]
Landgraf v. USI Film Prods, 511 U.S. 244, 280 (1994).
[191]
Id. at 264.
[192]
Id. at 274.
[193]
Id.
[194]
Id.
[195] Blair v. Fletcher, 849 S.W.2d 344,
345 (Tex. 1993) (per curiam).
[196]
See Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 52, 1999 Tex. Gen.
Laws 5097, 5115.
[197]
See City of Heath v. King, 665 S.W.2d 133, 136 (Tex. App. Dallas 1983,
no writ).
[198]
See Landgraf, 511 U.S. at 264.
[199]
See Blair, 849 S.W.2d at 345.
[200]
See Landgraf, 511 U.S. at 274.
[201]
See Palmer v. Cable Wall Trust Co., 851 S.W.2d 178, 180 n.3 (Tex. 1992)
(setting out complex scheme of Texas probate jurisdiction as it stood in 1992).
[202]
See Tex. Prob. Code Ann. §§ 5, 5A; Pullen v. Swanson, 667 S.W.2d 359,
361 (Tex. App. Houston [14th Dist.] 1984, writ ref'd n.r.e.).
[203]
See Tex. Prob. Code Ann. § 5A(a), (b).
[204]
Act of March 25, 1943, 48th Leg., R.S., ch. 110, § 1, 1943 Tex. Gen.
Laws 191, 191, repealed by Act of May 24, 1979, 66th Leg., R.S., ch. 841, § 6,
1979 Tex. Gen. Laws 2217, 2329, codified by Act of May 24, 1979, 66th Leg.,
R.S., ch. 841, § 1, 1979 Tex. Gen. Laws 2217, 2293 (amended 1981) (current
version at Tex. Tax Code § 33.41).
[205]
Nickey v. Mississippi, 292 U.S. 393, 397 (1934); Richey v. Moor, 112
Tex. 493, 249 S.W. 172, 173-74 (1923); Trimble v. Farmer, 296 S.W.2d 580, 586
(Tex. Civ. App. Fort Worth 1956), rev'd on other grounds, 157 Tex. 533, 305
S.W.2d 157 (1957).
[206]
See Tex. Tax Code Ann. § 33.41.
[207]
Grounds v. Tolar Indep. Sch. Dist., 707 S.W.2d 889, 891 (Tex. 1986).
[208]
Crawford, 933 S.W.2d at 730.
[209]
See id.
[210]
Bailey, 862 S.W.2d at 585.
[211]
See Tex. Prob. Code § 5C(a)(2).
[212]
See Tex. Prob. Code § 317(c).
[213]
See Tex. Tax Code Ann. § 33.41; Tex. Prob. Code Ann. § 5C.
[214]
See Blair, 849 S.W.2d at 345.
[215]
Id; Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex.
1990).
[216]
See id.
[217]
See id.
[218]
Estate of Pollack v. McMurrey, 858 S.W.2d 388, 390 (Tex. 1993).
[219]
Id.
[220]
Id.
[221]
Strackbein v. Prewitt, 671 S.W.2d 37, 38-39 (Tex. 1984).
[222]
Plains Chevrolet, Inc. v. Thorne, 656 S.W.2d 631, 633 (Tex. App. Waco
1983, no writ).
[223]
Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Thorne, 656 S.W.2d at
836.
[224]
Tex. R. Civ. P. 154.
[225]
Estate of Pollack, 858 S.W.2d at 394 (Gonzalez, J., concurring).
[226]
Id.
[227]
Tex. R. Civ. P. 65.
[228]
See Hill v. Heritage Res., Inc., 964 S.W.2d 89, 142 (Tex. App. El Paso
1997, pet. denied); Evans v. Hoag, 711 S.W.2d 744, 746 (Tex. App. Houston [14th
Dist.] 1986, writ ref'd n.r.e.).
[229]
See Estate of Pollack, 858 S.W.2d at 390.