Opinion
No. 05-07-01242-CV
Opinion Filed February 25, 2009.
On Appeal from the 193rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 05-02006-L.
Before Justices MOSELEY, RICHTER, and FRANCIS.
Opinion By Justice RICHTER.
The issue in this appeal is whether the district court had jurisdiction over and properly enforced a settlement agreement concerning the distribution of Robert Litoff's one-fourth interest in the estate of his mother, Rose Litoff, when the administration of the estate was pending in probate court. We conclude it did not, vacate the trial court's judgment enforcing the agreement, and dismiss the case.
Robert Litoff raised a second issue challenging the sufficiency of the evidence to support the court's judgment enforcing the agreement, but by order of September 12, 2008, this Court granted his motion to withdraw that issue.
Background
The record reflects the administration of Rose's estate began in January 1995 in Dallas County Probate Court No. 3. The administration was ongoing in May 2003 when Robert and his brother Eliot, an heir and an executor of the estate, voluntarily and independently from the court proceedings mediated a dispute over Robert's interest. The mediation resulted in a settlement agreement providing that Eliot would purchase Robert's one-fourth interest in the estate if that interest had not been distributed to Robert by December 31, 2004.
When no distribution had occurred by the middle of December 2004 and it was apparent that the administration of the estate would not be finalized by the end of the year, Eliot attempted to purchase Robert's interest and requested Robert sign a document transferring his interest to Eliot. Robert refused, finding Eliot's request to be "non-bargained additional consideration," and three months later filed a breach of contract suit in district court.
Two years later, on the day of trial, Robert, represented by new counsel, argued the trial court lacked jurisdiction over the matter because of the ongoing administration of the estate. Robert moved that the case be dismissed or transferred to probate court, but the trial judge denied the motions, signed a judgment enforcing the settlement agreement, and transferred Robert's interest to Eliot.
Reasserting his contention that the trial court lacked jurisdiction over his suit because of the ongoing administration of the estate, Robert urges in his sole point of error that we dismiss the case. In response, Eliot argues the court had jurisdiction over the suit and we should affirm the trial court's judgment because
(1) Robert "chose the forum" by filing suit in district court;
(2) Robert did not move to non-suit or transfer the case until the day of trial, two years after filing suit;
(3) Robert did not raise a "probate" matter in his suit but sought "merely" to enforce the settlement agreement through a breach of contract suit over which the district court had subject matter jurisdiction;
(4) Robert sued him individually and not in his capacity as a personal representative of the estate; and
(5) no "current action" was pending in probate court as the probate court had approved the Inventory, Appraisement, and List of Claims for the estate in 1995, ten years before Robert filed suit.
Discussion
A court cannot act on a case without subject matter jurisdiction. 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). It exists by operation of law and cannot be conferred or taken away by consent, judicial admission, or waiver. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993); In re H.G., 267 S.W.3d 120, 124 (Tex.App.-San Antonio 2008, pet. denied); Dolenz v. Dallas Cent. Appraisal Dist., 259 S.W.3d 331, 333 (Tex.App.-Dallas 2008, pet. denied). Whether a trial court possesses subject matter jurisdiction is a question of law we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Dolenz, 259 S.W.3d at 334.
Section 25.0003(e) of the Texas Government Code provides that, in a county that has a statutory probate court, such as Dallas, the statutory probate court is the only court created by statute with probate jurisdiction. Tex. Gov't Code Ann. §§ 25.003(e), 25.0591(d) (Vernon 2004 Supp. 2008); Schuld v. Dembrinski, 12 S.W.3d 485, 487 (Tex.App.-Dallas 2000, no pet.). Pursuant to section 5 of the probate code, that jurisdiction includes original probate jurisdiction over "all application, petitions, and motions regarding probate or administrations." Tex. Prob. Code Ann. § 5(d) (Vernon Supp. 2008). It also includes jurisdiction over "any and all" matters "appertaining" or "incident" to an estate when a probate proceeding relating to such matter is already pending in that court and over "any cause of action in which a personal representative of an estate pending in the statutory probate court is a party." Id. §§ (f), (h); Schuld, 12 S.W.3d at 487. The code defines "appertaining" and "incident" to an estate as "generally all matters relating to the collection, settlement, partition, and distribution of estates of deceased persons." Id. § 5A(b). The code further provides that, subject to certain exceptions not applicable here, any cause of action appertaining or incident to an estate shall be brought in a statutory probate court. Id.
Those exceptions are in situations in which the jurisdiction of the statutory probate court is concurrent with that of a district court as provided by section 5(e) of the probate code. See Tex. Prob. Code Ann. § 5(A)(b). Under section 5(e), the probate court has concurrent jurisdiction with the district court in all personal injury, survival, or wrongful death actions by or against a personal representative of the estate or trustee, in all actions involving an inter vivos, testamentary, or charitable trust, and in all actions involving a personal representative of the estate "in which each other party aligned with the personal representative is not an interested person in that estate." See id. § 5(e).
Here, the settlement agreement that is the subject of Robert's suit concerned the distribution of his share of his mother's estate. Thus, Robert's suit was a "probate" matter "appertaining" or "incident" to the estate and, under the probate code, any cause of action based upon it needed to be filed in probate court. Id. §§ 5(h), 5(A)(b). That Robert "chose the forum" and took no action as to the court's jurisdiction until the day of trial two years later is of no import as a party to a lawsuit cannot confer subject matter jurisdiction upon a court. Tex. Air Control Bd., 852 S.W.2d at 444-45. Neither is it of import that Robert sued Eliot in his individual capacity and not as an estate representative for the propriety of the probate court's jurisdiction over the suit arises not from Eliot's being a party but from the suit concerning the distribution of Rose's estate. See Tex. Prob. Code Ann. § 5(f), (h). Eliot's contentions that the trial court properly exercised jurisdiction over Robert's suit are without merit.
In arguing the district court had jurisdiction over the suit, Eliot cites to Crossley v. Staley, 988 S.W.2d 791 (Tex.App.-Amarillo 1999, no pet.) which involved facts somewhat similar to the ones at hand. At the center of the Crossley dispute, as in the dispute before us, was a pre-litigation mediated settlement agreement among a brother and two sisters concerning in part the distribution of the father's estate. Id. at 792-93. The suit was filed in the 30th District Court of Wichita County by the brother who successfully sought a declaration that the agreement was "valid and subsisting." Id. at 792. On appeal, the two sisters challenged the district court's subject matter jurisdiction on the grounds that no actual case or controversy existed, the suit sought an advisory opinion, another suit was pending in a different court involving the same parties and related issues, and the suit deprived the sisters of their choice of forum. Id. at 794-95. Finding the sisters' argument that a similar suit was pending elsewhere had been waived and rejecting the other arguments, the appeals court found the trial court had jurisdiction over the suit. Id. at 795-97. Because the appeals court found the district court had jurisdiction over the settlement agreement, Eliot argues the district court here also had jurisdiction. Unlike Dallas County, however, Wichita County does not have a statutory probate court. See Tex. Gov't Code Ann. § 25.2451 (Vernon 2004). Accordingly, Crossley is distinguishable.
We conclude the trial court erred in exercising jurisdiction over Robert's suit and in enforcing the settlement agreement. We sustain Robert's sole point of error, vacate the trial court's judgment enforcing the agreement, and dismiss the case.