Opinion
No. 10-17-00311-CV
12-27-2017
IN RE CECILIA WILLIAMS PERKINS
Original Proceeding
MEMORANDUM OPINION
Perkins and Cromer are sisters. Their parents have died. Cromer would have been the independent executor of their mother's estate but she lived out of state at the time and waived the right. Perkins was duly appointed, qualified, and assumed the duties and role of independent executor.
Cromer became unhappy with how Perkins was administering the estate as independent executor. Cromer sought to remove Perkins as independent executor and have herself appointed. The trial court removed Perkins and appointed Cromer dependent executor.
The fundamental dispute between the sisters is whether the estate's real property should be sold and the money divided or whether the property, which was left equally to them in undivided interest, should be distributed as undivided interest, or, as a third alternative, partitioned and the partitioned parts distributed. From what the parties have filed, the court handling the probate proceeding, the Walker County Court at Law, is in the process of conducting a partition proceeding and has ordered a sale of one tract of property.
Cromer has instituted a separate proceeding in the District Court against Perkins. In the District Court suit, she seeks damages from Perkins. Cromer asserts that her sister, Perkins, breached her fiduciary duty to Cromer by refusing to sell the property and distribute Cromer's share of the money to her. And, the allegations continue, that as a result, Cromer has been damaged by having to take the actions in the probate proceeding to remove Perkins as independent executor and then to cause the property to be sold in the partition proceeding going forward in the probate court.
Perkins was unsuccessful in convincing the District Court that it should abate the damages suit based upon the argument that the County Court at Law had original exclusive or original dominant jurisdiction. While the parties have used the terms somewhat interchangeable, they are not the same. If the District Court does not have any jurisdiction of the suit brought by Cromer, the County Court at Law does not have dominant jurisdiction, it has exclusive jurisdiction. With this summary of the background, we turn to the relevant provisions of the Estates Code.
The Estates Code defines the "Scope of 'Probate Proceeding' for Purposes of Code" in section 31.001. TEX. ESTATES CODE ANN. § 31.001 (West 2014). But more important to our issue is section 31.002 which defines "Matters Related to Probate Proceeding" to include "an action against a personal representative or former personal representative arising out of the representative's performance of the duties of a personal representative." Id. § 31.002(a)(1). This is precisely the type suit that Cromer has brought against Perkins in District Court. This provision is made applicable to the Walker County Court at Law by section 31.002(b) which states that "[f]or purposes of this code, in a county in which there is no statutory probate court, but in which there is a county court at law exercising original probate jurisdiction, a matter related to a probate proceeding includes: (1) all matters and actions described in Subsection (a)." Id. (b)(1).
We are not ignoring section 22.029 which provides:
The terms "probate matter," "probate proceedings," "proceeding in probate," and "proceedings for probate" are synonymous and include a matter or proceeding relating to a decedent's estate.TEX. ESTATES CODE ANN. § 22.029 (West 2014). We simply note that it does not directly address the issue in this case.
We now turn to Chapter 32 of the Estates Code to determine the nature of the County Court at Law's jurisdiction, specifically whether it is exclusive or concurrent with the District Court. The general provision for jurisdiction of probate-proceedings and matters-related-to-probate-proceedings is section 32.001 which provides:
All probate proceedings must be filed and heard in a court exercising original probate jurisdiction. The court exercising original probate jurisdiction also has jurisdiction of all matters related to the probate proceeding as specified in Section 31.002 for that type of court.TEX. ESTATES CODE ANN. § 32.001(a) (West 2014).
Because it is undisputed that in Walker County, the County Court at Law and the Walker County Court are the only courts with original probate jurisdiction, there is no question that the County Court at Law has jurisdiction of the matters-related-to-probate-proceedings as defined by the Estates Code, which includes a suit like Cromer's against a former personal representative arising out of the representative's performance of the duties as a personal representative. See id. §§ 32.002(b) and 31.002(a)(1).
This leads us to the question of whether the jurisdiction is exclusive or concurrent. Cromer argues that when the Estates Code means exclusive jurisdiction it says so, noting that section 32.005 provides for exclusive jurisdiction of a statutory probate court except where it has concurrent jurisdiction with a district court under section 32.007. See id. §§ 32.005(a) & 32.007. Cromer then argues,
Notably, 32.007 bestows concurrent jurisdiction to the District Courts for, among other things, actions by or against a trustee. Tex. Estate [sic] Code § 32.007.We disagree.
This is just such an action against a trustee and this action for damages resulting from Perkins [sic] breach of duty is plainly not a matter where "the controlling issue is the settlement, partition or distribution of an estate." Wolford, 590 S.W.2d at 771.
First, this is not an action against a trustee. It is an action against a former independent executor. There is no trust instrument which determined Perkins's duties. Perkins was a fiduciary for all the beneficiaries of the estate, which included herself and Cromer, just as Cromer is now a fiduciary for the estate, which includes herself and Perkins. Second, because the estate has not been closed, the claim, if any, belongs to the estate for the benefit of all the beneficiaries, not just Cromer. And thus the recovery, if any, will become part of the assets of the estate to be distributed.
Thus, we must circle back to the Estates Code wherein it provides:
The administration of the estate of a decedent, from the filing of the application for probate and administration, or for administration, until the decree of final distribution and the discharge of the last personal representative, shall be considered as one proceeding for purposes of jurisdiction. The entire proceeding is a proceeding in rem.TEX. ESTATES CODE ANN. § 32.001(d) (West 2014).
This suggests that the only proper court in which to bring the claim, as long as the estate proceeding is open, is in the proceeding pending in the probate court; the County Court at Law. Moreover, even if the District Court has jurisdiction of the suit, the suit, and in particular the damages as currently pleaded, cannot be determined unless and until the probate court determines the highly interrelated issues being addressed in the partition proceeding which is pending in the County Court at Law. Furthermore, until the estate is fully administered, the former independent executor may not be able to appeal issues related to the removal, including payment of cost defending her removal, and issues regarding costs and expenses included in the final accounting, etc.
While it appears the County Court at Law may have exclusive jurisdiction of the suit for damages against the former independent executor, we have only been asked to compel the district court to abate the proceeding until the parallel and interrelated estate matters have been resolved. Thus, we do not resolve the question of whether the County Court at Law's jurisdiction of the claims raised in the District Court suit, which is clearly a matter related to a probate proceeding, is exclusive.
See Frost Nat. Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010) (because appellee's claims were not within the jurisdiction of the probate court, Court did not decide whether rule of dominant jurisdiction applies in later-filed direct attacks that are exclusively within the jurisdiction of another court); In re Hannah, 431 S.W.3d 801, 809 n. 3 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding) (because relator's suit is not related to a probate proceeding, no need to address whether Estates Code provisions are mandatory or permissive).
It is well-settled that when a suit would be proper in more than one county, the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other courts. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988); Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974). Dominant jurisdiction recognizes "the plaintiff's privilege to choose the forum" and accepts that choice as correct, provided "the forum is a proper one." Gordon v. Jones, 196 S.W.3d 376, 382 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (quoting Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 622 (Tex. 2005)). The court with the first-filed suit should proceed, and the other suit should be abated. In re Tyler Asphalt & Gravel Co., 107 S.W.3d 832, 838 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding). See Wyatt, 760 S.W.2d at 248. Further, mandamus is appropriate to compel one court to recognize the dominant jurisdiction of another court. See Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974); In re Tyler Asphalt & Gravel Co., 107 S.W.3d 832 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding) (trial court abused discretion by refusing to abate to allow suit in dominant jurisdiction to proceed and relator had no remedy by appeal due to potential for confusion and conflicting judgments); In re Sims, 88 S.W.3d 297 (Tex. App.—San Antonio 2002, orig. proceeding) (dominant jurisdiction court abused its discretion by granting plea in abatement and relator had no remedy by appeal).
The effort to create two fronts on which Cromer is attacking Perkins and Perkins's belief in the propriety of, or preference for, distributing the property in undivided interest (as given to them by their mother) or partitioning the property in kind rather than selling it, is not a necessary or efficient use of judicial resources. While most dominant-jurisdiction-abatement mandamus proceedings are premised on the same litigation going forward in two different counties (venue), where one is filed first and thus recognized as having dominant jurisdiction, the same concerns apply to having two courts, a probate court and a district court, in the same county attempting to address many of the same issues. There is no question that the County Court at Law has jurisdiction of Cromer's claims against Perkins and that the probate proceeding was pending first. Additionally, some of the issues related to the District Court suit for damages had already been resolved in the County Court at Law and others were in the process of being resolved when the District Court action was filed.
The principles that underlie the use of a mandamus proceeding to compel a district court to abate an action brought in one county in recognition of the dominant jurisdiction of another court in which the same claims had already been brought in another county, apply just as forcefully to this situation. Based upon the foregoing, we conditionally grant Relator's Petition for Writ of Mandamus and direct the trial court judge to abate the proceeding pending in District Court until the proceeding pending in the probate court (the County Court at Law) has been concluded.
This same basic principle is applied to appellate courts as well. See Miles v. Ford Motor Co., 914 S.W.2d 135, 138 (Tex. 1995).
Cromer also asserts that Perkins waived her issue of dominant jurisdiction because Perkins filed an answer to Cromer's suit, "followed by multiple dilatory matters all before filing a plea in abatement." The record before us does not contain Perkins's answer or any of the alleged "multiple dilatory matters," and thus, does not support Cromer's assertion.
TOM GRAY
Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Petition conditionally granted
Opinion delivered and filed December 27, 2017
[OT06]