Summary
examining sua sponte trial court's jurisdiction and concluding jurisdiction existed
Summary of this case from Harris Cnty. v. MirelesOpinion
No. 01-05-00549-CV
Delivered: April 5, 2007.
On Appeal from the Probate Court No. One Harris County, Texas Trial Court Cause No. 322,222-402.
Panel consists of Justices, TAFT, ALCALA, and HANKS.
MEMORANDUM OPINION
Appellant, Shirley Moore York, appeals from a summary judgment rendered by the probate court in favor of appellees, William A. Samuel and his daughter-in-law, Margaret Samuel, that determined that the Samuels "are the fee simple title owners" of the disputed property and that granted the Samuels a writ of possession for the property. In a single issue, Shirley challenges the probate court's rendition of summary judgment by asserting that genuine issues of material fact exist concerning (1) the "validity of the deed conveying the property to the Samuels by Margaret McNeil and her sisters" and (2) the "existence of a constructive trust in favor of Shirley York." Shirley also asserts that the justice court, which originally heard the case before it was appealed to the county court at law and before the county court at law transferred it to the probate court at Shirley's request, lacked jurisdiction. We conclude that Shirley's challenge to the jurisdiction does not require reversal because the judgment before us is from the probate court, not the justice court. We also conclude that the probate court had jurisdiction and properly found that no fact issue existed. We affirm.
Background On February 29, 1996, the Samuels purchased real property at 3443 Wentworth in Houston. Later, Shirley and her husband, Ben York, resided at the Wentworth property. After Ben died in November 1998, the Samuels sought to evict Shirley from the premises by notifying her by mail on December 22, 1998, and later by hand-delivered notice, that Shirley's lease to the property was being terminated. When Shirley did not vacate the premises, the Samuels filed a lawsuit to remove her from the property.
The Samuels originally filed a lawsuit to oust Shirley from the property in the justice court. The justice court rendered judgment in favor of the Samuels. Shirley appealed the justice court decision to the county court at law for a trial de novo. After Shirley moved to transfer the case to the probate court where the administration of Ben's estate was pending, the county court at law transferred the case to Probate Court No. 1.
Both parties refer to the lawsuit as a "forcible entry and detainer" suit. It is actually a "forcible detainer" suit. Compare Tex. Prop. Code Ann. § 24.001(a) (Vernon 2000) ("A person commits a forcible entry and detainer if the person enters the real property of another without legal authority or by force and refuses to surrender possession on demand") with § 24.002(a)(1) (Vernon 2000) (stating person commits forcible detainer if person refuses to surrender possession of real property and is "a tenant . . . holding over after the termination of the tenant's right of possession.").
In the probate court, the Samuels filed a motion for summary judgment. In their motion for summary judgment, the Samuels asserted that "the undisputed evidence establishes Plaintiffs purchased The Wentworth Property in fee simple on February 29, 1996 and remain the record title owners." In the "Conclusion" to their motion, the Samuels also asserted that they leased the property to Shirley and that, after she was given written notice to vacate the property, she refused. The Samuels contended that they "are the record title holders of the property . . . and are entitled to regain clear title to and possession of their property." The Samuels "ask[ed] for summary judgment on all issues and all parties." The Samuels prayed that "the court grant Plaintiffs immediate possession of The Wentworth property." In the prayer of the motion for summary judgment, the Samuels requested that the court grant their motion for summary judgment and "grant Plaintiffs an immediate writ of possession to the property located at 3443 Wentworth, Houston, Texas, and for such other relief, at law or in equity to which the Plaintiffs may be justly entitled."
Attached to the Samuels' motion was the affidavit of Margaret Samuels, who averred that she and her father-in-law bought the property at issue, that the property was leased to the Yorks under a month-to-month lease that was verbally agreed upon, that after Ben died, Shirley was served with a notice of termination of the lease with a request for her to vacate the property, and that Shirley refused to either vacate the property or pay rent. The motion for summary judgment also included a copy of the deed that the Samuels contend shows that they own the property. The deed is dated February 29, 1996. The deed names as the grantors Margarete Lynnette McNeil and her two sisters. The grantees are identified as William A. Samuel and Margaret Y. Samuel.
Shirley's response to the motion for summary judgment denied the validity of the deed that conveyed the property to the Samuels. Shirley also asserted that she held equitable title to the property based on a constructive trust. Shirley's summary judgment evidence included the affidavit of Margaret Lynnette McNeil, who averred that neither she nor her sisters, who conveyed the property, signed the deed in the presence of the notary, as the acknowledgment indicates. McNeil's affidavit also stated that the intent of the parties to the deed was to grant the property to the Samuels in trust for the benefit of the Yorks. Shirley's affidavit similarly stated that the Samuels agreed "to become the trustees of the property for our benefit."
On appeal, Shirley also calls this an "express" trust, seemingly using the terms interchangeably.
The Samuels challenged the evidence presented in Shirley's response to their motion for summary judgment by requesting that the court strike both affidavits. The Samuels "specifically except[ed]" to McNeil's affidavit on the grounds that it was "objectionable as parole [sic] evidence and hearsay." The Samuels also objected to Shirley's affidavit on the grounds that the statements in the affidavit were based on hearsay. The probate court's order sustained the special exceptions to the affidavits.
The probate court granted the Samuels' motion for summary judgment. The probate court's judgment found that the Samuels were "the fee simple title owners of 3443 Wentworth" and granted the Samuels a writ of possession.
Jurisdiction
Shirley challenges the justice court's jurisdiction to hear the original lawsuit filed by the Samuels by asserting that the evidence fails to show that "the justice court had jurisdiction to hear this dispute" because a "forcible entry and detainer (FED) suit cannot be used to determine title to real property." However, the judgment before us in this appeal is neither from the justice court nor from the county court at law that received the appeal from the justice court. The judgment here is from the probate court, which was administrating the estate of Ben York. The probate court received the case when it was transferred there at Shirley's request. Shirley has not challenged the jurisdiction of the probate court, nor has she explained why the probate court would not have jurisdiction to determine whether the estate of Ben York was entitled to the property.
Although Shirley has not challenged the probate court's jurisdiction, we may address the issue of jurisdiction sua sponte. Saudi v. Brieven, 176 S.W.3d 108, 113 (Tex.App.-Houston [1st Dist.] 2004, pet. denied). We note that the probate court had jurisdiction to determine whether the estate of Ben York was the owner of or had a possessory right to the property because it was charged with the administration of his estate. See Tex. Prob. Code Ann. § 5(h) (Vernon Supp. 2006) ("A statutory probate court has jurisdiction over any matter appertaining to an estate or incident to an estate and has jurisdiction over any cause of action in which a personal representative of an estate pending in the statutory probate court is a party.") (Emphasis added); id. § 5A(b) (stating that "the phrases `appertaining to estates' and `incident to an estate' . . . include . . . all claims by or against an estate [and] all actions for trial of title to land. . . ."). We overrule Shirley's challenge to the justice court's jurisdiction because the judgment before us is from the probate court, not the justice court or the county court at law. We also hold that the probate court had jurisdiction to determine that the Samuels were "the fee simple title owners of 3443 Wentworth" and to grant the Samuels a writ of possession.
Summary Judgment
Shirley challenges the summary judgment by contending that there is an issue of fact (1) whether the deed conveying the property to the Samuels was valid and (2) whether there was a constructive trust in favor of the Yorks. Shirley points to the affidavit of McNeil and her own affidavit. The probate court, however, ordered that the contents of these affidavits were hearsay, and, in this appeal, Shirley has not challenged the probate court's evidentiary ruling. Because Shirley has failed to challenge the probate court's evidentiary ruling, we may not consider the evidence that was struck by the court. See McClure v. Denham, 162 S.W.3d 346, 349 n. 2 (Tex.App.-Fort Worth 2005, no pet.) (noting that appellate court may only consider evidence properly before trial court when reviewing propriety of summary judgment). The only evidence that Shirley contends raised an issue of fact is the evidence that was struck by the trial court. Shirley, thus, fails to point to any evidence that raises an issue of fact. See Cunningham v. Columbia/St.David's Healthcare Sys., L.P., 185 S.W.3d 7, 14 (Tex.App.-Austin 2005, no pet.) (holding that trial court properly granted summary judgment because affidavit relied on by nonmovant to create fact issue was excluded by trial court).
On appeal, Shirley has not asserted that the evidence presented by the Samuels raised an issue of fact concerning the adequacy of the deed or the existence of a constructive trust. We note that the Samuels' evidence conclusively established that they were the fee simple title owners, that they leased the property to the Yorks, and that Shirley failed to vacate the premises after receiving notice that her lease had terminated. We hold that the trial court did not err by granting summary judgment in favor of the Samuels. See id.
We overrule Shirley's sole issue on appeal.
Conclusion
We affirm the judgment of the probate court.