SUE WALKER JUSTICE

FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 096-293112-17 MEMORANDUM OPINION

I. INTRODUCTION

In one issue, Appellant Amy Baker challenges the trial court's order dismissing her partition lawsuit for lack of subject-matter jurisdiction. We will reverse and remand.

II. BACKGROUND

Amy and John Todd Baker were divorced by decree on September 22, 2015. The divorce decree did not divide Amy's and J. Todd's community interests in a house located at 404 Sage Lane, Euless, Texas 76039 (the Property).

J. Todd died on May 21, 2017, leaving behind two adult children, Appellees Chelsea Baker and Dakota Baker. On July 7, 2017, Amy filed an original petition in the 96th District Court of Tarrant County, seeking a partition of the Property on the theory that because J. Todd died intestate, his interest in the Property immediately vested in Appellees, leaving them with a one-half ownership interest in addition to Amy's one-half ownership interest.

On July 10, 2017, Appellees filed an application for independent administration of J. Todd's estate in Probate Court No. 2 of Tarrant County. Appellees then filed a motion in the 96th District Court seeking dismissal of Amy's partition lawsuit for lack of subject-matter jurisdiction. Appellees argued that Probate Court No. 2 had exclusive jurisdiction over all causes of action related to the now-pending administration of J. Todd's estate. After Amy filed a response, the 96th District Court signed an order dismissing Amy's partition lawsuit.

On appeal, Amy raises a single issue challenging the dismissal of her partition suit for lack of subject-matter jurisdiction.

III. APPLICABLE LAW

Whether a court has subject-matter jurisdiction is a question of law subject to our de novo review. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). "Subject[-]matter jurisdiction is 'essential to a court's power to decide a case.'" City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (quoting Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)).

The Texas Property Code provides that "[a] joint owner or a 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." Tex. Prop. Code Ann. § 23.002 (West 2014). Thus, "[j]urisdiction of suits for partition of real estate lies in the District Court." Ray v. Ray, 234 S.W.2d 933, 934 (Tex. Civ. App.—Eastland 1950, no writ). But a district court's jurisdiction over partition suits is not exclusive. See Eris v. Giannakopoulos, 369 S.W.3d 618, 620-21 (Tex. App.—Houston [1st Dist.] 2012, pet. dism'd) ("The language of section 23.002 does not indicate a legislative intent that district courts have exclusive jurisdiction over partition actions; rather, the use of the word 'may' demonstrates a permissive, rather than mandatory, procedure.").

Pursuant to the Texas Estates Code, "A cause of action related to the probate proceeding must be brought in a statutory probate court unless the jurisdiction of the statutory probate court is concurrent with the jurisdiction of a district court as provided by [s]ection 32.007 or with the jurisdiction of any other court." Tex. Est. Code Ann. § 32.005(a) (West 2014) (emphasis added). A "probate proceeding" includes an application, petition, motion, or action regarding estate administration, id. § 31.001(4) (West 2014), and a claim "related to the probate proceeding" includes an action for trial of the right to property that is estate property. Id. § 31.002(a)(6), (c); see also Wallace v. Wallace, No. 05-17-00447-CV, 2017 WL 4479653, at *3 (Tex. App.—Dallas Oct. 9, 2017, no pet.) (mem. op.). However, to trigger a statutory probate court's exclusive subject-matter jurisdiction over a cause "related to the probate proceeding," a probate proceeding must already be pending. See Schuld v. Dembrinski, 12 S.W.3d 485, 487 (Tex. App.—Dallas 2000, no pet.) (recognizing that "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" (quoting Bailey v. Cherokee Cty. Appraisal Dist., 862 S.W.2d 581, 585 (Tex. 1993) (op. on reh'g))); Garza v. Rodriguez, 18 S.W.3d 694, 698 (Tex. App.—San Antonio 2000, no pet.) ("[B]efore a matter can be regarded as incident to an estate . . . a probate proceeding must actually be pending.").

In light of the foregoing, courts have repeatedly concluded that a district court and a probate court can possess concurrent subject-matter jurisdiction over a variety of suits, including partition suits. See, e.g., Schuld, 12 S.W.3d at 487 (holding statutory probate court did not have exclusive jurisdiction over partition suit); Goodwin v. Kent, 745 S.W.2d 466, 469 (Tex. App.—Tyler 1988, no writ) (concluding both district court and county court sitting in probate have at least "theoretical" authority to hear and decide a title issue regarding real property); cf. Tovias v. Wildwood Props. P'ship, L.P., 67 S.W.3d 527, 529 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (holding "[n]either [probate nor district] court had exclusive subject[-]matter jurisdiction" over wrongful death suit but that "each had concurrent subject[-]matter jurisdiction").

IV. ANALYSIS

Amy filed her partition suit in the 96th District Court on July 7, 2017. Three days later, Appellees filed an application for independent administration of J. Todd's estate in Probate Court No. 2. Thus, the 96th District Court had subject-matter jurisdiction over Amy's partition suit when she filed it. See Tex. Prop. Code Ann. § 23.002; Ray, 234 S.W.2d at 934. Yet Appellees' motion to dismiss Amy's partition suit did not address the legal significance of the fact that no probate proceeding was pending at the time Amy filed her partition suit. Instead, Appellees' motion to dismiss Amy's first-filed partition suit for lack of jurisdiction is premised on the assertion that the 96th District Court lacks subject-matter jurisdiction over Amy's partition suit because of the subsequently-filed application for administration of J. Todd's estate. We cannot agree.

A statutory probate court's exclusive subject-matter jurisdiction over a related cause of action under section 32.005 of the estates code is triggered when a probate proceeding is pending at the time the allegedly related cause of action is filed. See Schuld, 12 S.W.3d at 487 (holding statutory probate court did not have exclusive subject-matter jurisdiction over partition lawsuit because probate statute providing for exclusive subject-matter jurisdiction was "not triggered" when no probate proceeding was taking place or pending when partition suit was filed); Garza, 18 S.W.3d at 698. Because no probate proceeding was pending at the time Amy filed her partition suit, the exclusive-subject-matter-jurisdiction provision of section 32.005 was not triggered.

Therefore, we hold that the 96th District Court erred by dismissing Amy's partition suit for lack of subject-matter jurisdiction, and we sustain Amy's sole issue.

V. CONCLUSION

Having sustained Amy's sole issue, we reverse the trial court's dismissal order and remand the case for further proceedings consistent with this opinion.

/s/ Sue Walker

SUE WALKER

JUSTICE PANEL: SUDDERTH, C.J.; WALKER and MEIER, JJ. DELIVERED: September 6, 2018