Opinion
NO. 12-10-00327-CV
01-31-2012
IN THE ESTATE OF LOY J. GILBERT
APPEAL FROM THE
COUNTY COURT AT LAW #3
SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Randal Bevens Gilbert challenges the jurisdiction of the County Court at Law No. 3, Smith County, Texas, to enter an order enforcing a settlement agreement and final judgment. In one issue, he contends that the court lacked subject matter jurisdiction to adjudicate the controversy between him and his brother, David Michael Gilbert, and niece, Heather Gilbert Chadwick. We affirm.
BACKGROUND
Loy J. Gilbert died on May 9, 2007. On May 14, Randal filed an application to probate Loy's will and codicils, and for letters testamentary, in the constitutional county court of Smith County, Texas. An order admitting Loy's will and codicils to probate, appointing Randal as independent executor, and authorizing letters testamentary was signed on May 29. On June 9, David and Heather filed suit against Randal in the County Court at Law No. 3, Smith County, Texas, alleging several breaches of fiduciary duty. They also sought an accounting, injunctive relief, and Randal's removal as independent executor of Loy's will, codicils, and estate.
Almost three years later, on April 5, 2010, David and Heather filed a first amended petition in their suit against Randal, and in addition, filed a motion to enforce a settlement agreement against him. Both the first amended petition and the motion were filed in the County Court at Law No. 3. On April 13, Randal filed a plea to the jurisdiction, alleging that the County Court at Law No. 3 lacked subject matter jurisdiction over David and Heather's action against him. On April 30, the constitutional county court, on its own motion and without objection, transferred the probate to the County Court at Law No. 3. On July 7, the County Court at Law No. 3 signed an order consolidating the probate and the action filed by David and Heather against Randal.
After a hearing on David and Heather's motion to enforce the settlement agreement, the County Court at Law No. 3 entered an order enforcing the settlement agreement and final judgment in favor of David and Heather against Randal. This appeal followed.
SUBJECT MATTER JURISDICTION
In his sole issue, Randal argues that the County Court at Law No. 3 lacked subject matter jurisdiction to adjudicate the controversy between him, David, and Heather. Applicable Law
Whether a court has subject matter jurisdiction is a question of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (citing Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002)). A court cannot act on a case without subject matter jurisdiction. See Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (orig. proceeding). Subject matter jurisdiction involves a court's power to hear a case. Tellez v. City of Socorro, 226 S.W.3d 413, 413 (Tex. 2007) (per curiam). Subject matter jurisdiction is a power that exists by operation of law only, and cannot be conferred upon any court by consent or waiver. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000). Texas courts are given subject matter jurisdiction to adjudicate a controversy under applicable constitutional and statutory provisions. See Pope v. Ferguson, 445 S.W.2d 950, 952 (Tex. 1969).
The constitutional county court has the general jurisdiction of a probate court. Act of June 19, 1993, 73rd Leg., R.S., ch. 957, § 4, 1993 Tex. Gen. Law 4081, 4161, repealed by Act of June 19, 2009, 81st Leg., R.S., ch. 1351, § 12(h), 2009 Tex. Gen. Laws 4273, 4279. A statutory county court has concurrent probate jurisdiction with the constitutional county court. TEX. GOV'T CODE ANN. § 25.0003(d) (Vernon Supp. 2011).
In 2009, the Texas Legislature repealed Sections 4, 5, and 5A(a) of the Texas Probate Code. Act of June 19, 2009, 81st Leg., R.S., ch. 1351, § 12(h), 2009 Tex. Gen. Laws 4273, 4279. Because this case was filed before the effective date of the repeal, both parties agree that prior law applies here. See id. § 12(i) (stating that actions filed before the effective date of the Act are "governed by the law in effect on the date the action was filed"); see also In re Puig, 351 S.W.3d 301, 304 n.1 (Tex. 2011) (per curiam).
Section 5(c) of the Texas Probate Code, which is applicable here, states as follows:
In those counties in which there is no statutory probate court, but in which there is a county court at law or other statutory court exercising the jurisdiction of a probate court, all applications, petitions,Act of May 14, 2001, 77th Leg., R.S., ch. 63, § 1, 2001 Tex. Gen. Laws 104, 105, repealed by Act of June 19, 2009, 81st Leg., R.S., ch. 1351, § 12(h), 2009 Tex. Gen. Laws 4273, 4279; Act of June 19, 1993, 73rd Leg., R.S., ch. 957, § 5, 1993 Tex. Gen. Laws 4081, 4161 (repealed 2009). This jurisdiction includes the ability to "transact all business appertaining to estates subject to administration" and the "power to hear all matters incident to an estate." Act of June 19, 1993, 73rd Leg., R.S., ch. 957, §§ 4, 5, 1993 Tex. Gen. Laws 4081, 4161 (repealed 2009). According to Section 5A(a) of the Probate Code, matters qualifying as "appertaining to estates" and "incident to an estate" administered in constitutional county courts or statutory county courts at law include, but are not limited to, claims by or against an estate, all actions for trial of the right of property incident to an estate, administration of the estate, and settlement, partition, and distribution of estates. Act of June 19, 1993, 73rd Leg., R.S., ch. 957, § 6, 1993 Tex. Gen. Laws 4081, 4161 (repealed 2009). In other words, a cause of action is "appertaining to or incident to" an estate if the probate code "explicitly defines it as such or if the controlling issue in the suit is the settlement, partition, or distribution of an estate." In re SWEPI, L.P., 85 S.W.3d 800, 805 (Tex. 2002) (quoting In re Graham, 971 S.W.2d 56, 58 (Tex. 1998)). Discussion
and motions regarding probate and administration shall be filed and heard in those courts and the constitutional county court, rather than in the district courts, unless otherwise provided by law. The judge of a county court may hear any of those matters regarding probate or administrations sitting for the judge of any other county court. In contested probate matters, the judge of the constitutional county court may on the judge's own motion, and shall on the motion of a party to the proceeding, transfer the proceeding to the county court at law or a statutory court exercising the jurisdiction of a probate court other than a statutory probate court. The court to which the proceeding is transferred may hear the proceeding as if originally filed in the court.
Here, we must first determine if the matters raised in the action filed by David and Heather meet the definition of matters "appertaining to" or "incident to" an estate. See In re Puig, 351 S.W.3d 301, 304 (Tex. 2011). The action filed by David and Heather involves claims regarding the administration of Loy's estate, disputed control or ownership of real property, and the settlement, distribution, and partition of the estate. These are matters appertaining to the estate. See Act of June 19, 1993, 73rd Leg., R.S., ch. 957, § 6, 1993 Tex. Gen. Laws 4081, 4161 (repealed 2009). Therefore, we conclude that the constitutional county court and the County Court at Law No. 3, i.e., the statutory county court, had concurrent jurisdiction over the probate of Loy's estate and the action filed by David and Heather. See Act of June 19, 1993, 73rd Leg., R.S., ch. 957, § 6, 1993 Tex. Gen. Laws 4081, 4161 (repealed 2009). Consequently, the County Court at Law No. 3 had subject matter jurisdiction over David and Heather's action against Randal. See In re Puig, 351 S.W.3d at 306.
In probate proceedings, however, the court in which suit is first filed acquires dominant jurisdiction to the exclusion of coordinate courts. Bailey v. Cherokee Cnty. Appraisal Dist., 862 S.W.2d 581, 586 (Tex. 1993). Therefore, the constitutional county court in which the probate proceeding was first filed had dominant jurisdiction of the probate proceeding and "all matters appertaining and incident" to it. See id.; see also In re Puig, 351 S.W.3d at 305. When two courts have concurrent jurisdiction to determine inherently intertwined issues, filing a dilatory plea in abatement is the proper method for drawing a court's attention to another court's possible dominant jurisdiction. See In re Puig, 351 S.W.3d at 305; see also Mower v. Boyer, 811 S.W.2d 560, 563 n.2 (Tex. 1991) (discussing plea in abatement filed to call a second court's attention to dominant jurisdiction previously acquired by another court).
In this case, after David and Heather filed their action in the County Court at Law No. 3, Randal filed a plea to the jurisdiction. Because the issue was one of dominant jurisdiction, Randal should have filed a plea in abatement. See In re Puig, 351 S.W.3d at 306. His plea to the jurisdiction was insufficient to invoke the constitutional county court's dominant jurisdiction. See id.at 305-06. Because the constitutional county court and the County Court at Law No. 3 had concurrent jurisdiction over the probate and the action filed by David and Heather, the County Court at Law No. 3 had subject matter jurisdiction to sign the order enforcing the settlement agreement and final judgment. Accordingly, Randal's sole issue is overruled.
DISPOSITION
Having overruled Randal's sole issue, we affirm the judgment of the trial court.
James T. Worthen
Chief Justice
Opinion delivered January 31, 2012.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
JUDGMENT
NO. 12-10-00327-CV
IN THE ESTATE OF LOY J. GILBERT
Appeal from the County Court at Law #3
of Smith County, Texas. (Tr.Ct.No. 55,656-B)
THIS CAUSE came to be heard on the oral arguments, appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
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, RANDAL BEVENS GILBERT, for which execution may issue; and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.