Javier Diaz v. State ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00380-CR

Javier Diaz,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2005-114-C2

MEMORANDUM  Opinion

            Javier Diaz was convicted of assault-family violence, enhanced.  He filed a notice of appeal.  He has now filed a Motion to Dismiss Appeal requesting this Court to withdraw the notice of appeal and dismiss the appeal.  Diaz personally signed the notice to withdraw.

            This appeal is dismissed.  Tex. R. App. P. 42.2(a).

                                                                                    TOM GRAY

                                                                                    Chief Justice

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Appeal dismissed

Opinion delivered and filed March 12, 2008

Do not publish

[CR25]

te on August 22, 2006.  Wilborne filed another application to determine heirship on October 2, 2007.

A settlement of the lawsuit was reached in the district court and was announced in open court at a hearing on August 18, 2006.  There was no allocation of the settlement funds between the wrongful-death claim and the Estate’s survival claim at that hearing.  Wilborne was represented by her attorney, who agreed to the settlement and did not object about the settlement amount.  Wilborne later non-suited her intervention in the district court.

There was an agreement not to distribute the funds until an allocation was made, and the settlement was held in trust. An evidentiary hearing was held on May 3, 2007, and the district court apportioned the settlement award between the wrongful-death claim and the survival claim, but the parties agreed that the settlement allocation would be subject to the approval of the probate court.

At a hearing in the probate proceeding on October 1, 2007, the Honorable John A. Hutchison, III, statutory probate judge sitting by appointment, approved the settlement, including the allocation of the settlement proceeds as allocated by the 278th Judicial District Court.  Judge Hutchison noted on the record that the district court had made a determination that Lehman was Mondile’s common-law spouse.

The distribution of the survival-claim proceeds remains to be determined by the probate court on Wilborne’s petition to determine heirship filed on October 2, 2007, one day after the probate court’s settlement allocation approval.

Subject-Matter Jurisdiction

Wilborne argues in her sole issue that “the trial court erred in approving the settlement of the personal injury lawsuit entered by the 278th Judicial District Court.”  She essentially asserts that the probate court erred in approving the district court’s allocation of the settlement award because the district court did not have subject-matter jurisdiction to determine whether Lehman was in fact Mondile’s common law wife.  Because subject-matter jurisdiction raises a question of law, it is subject to de novo review.  Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

The probate court appointed Lehman as the temporary dependent administrator of the Estate on November 11, 2004.  Lehman then, individually, and as personal representative of the Estate, filed a wrongful-death and survival action that was settled on August 18, 2006.  On August 22, 2006, five days after the settlement agreement was approved by the district court, Jeb Blair was appointed as administrator of the Estate.  There is no question that, during the time that Lehman was the personal representative of the Estate, the district court had jurisdiction to approve the settlement agreement in the lawsuit.  Tex. Prob. Code § 5(e) (Vernon Supp. 2008) (district court has concurrent jurisdiction in all personal injury, survival and wrongful-death actions by or against a person in the person’s capacity as a personal representative).

After the district court approved the settlement agreement, and with Blair acting as personal representative of the Estate, the district court held a hearing to determine the appropriate allocation of the settlement award between Lehman’s individual wrongful-death claim, and the Estate’s survival claim, to be administered by Blair.  In its discretion, the district court apportioned the settlement award between Lehman in her individual capacity as Mondile’s common-law wife and the attorney’s fees and expenses agreed to by both Lehman and Wilborne.  The district court then left the remaining portion of the settlement award to the Estate and specifically made that award subject to the probate court’s approval.  The probate court held a hearing on October 1, 2007, and it approved the district court’s apportionment of the settlement award.

Under these circumstances, we cannot say it was error for the probate court to approve the district court’s apportionment of the settlement award.  The district court had subject-matter jurisdiction to determine Lehman’s status as Mondile’s common-law spouse and the amount of her wrongful-death claim.  See Tex. Prob. Code § 5(e); Wells v. Gray, 241 S.W.2d 183, 184 (Tex. Civ. App.—San Antonio 1951, writ ref’d) (when a district court originally obtains power and jurisdiction over all the parties and the subject matter, it may determine the heirs of a decedent and do all things necessary and proper to ascertain the lawful owners in the estate).  Further, all the parties involved, including Wilborne, agreed to the allocation of the attorneys’ fees.  The remainder of the settlement-agreement funds, belonging to the Estate, were then subject to the approval of the probate court.  We overrule Wilborne’s sole issue and affirm the county court’s approval of the allocation of the settlement proceeds.

BILL VANCE

Justice

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

            (Chief Justice Gray dissents.  A separate opinion will not issue)

Affirmed

Opinion delivered and filed December 17, 2008

[CV06]

---

[1] Wilborne contends that Mondile equitably adopted her and her siblings during his lifetime.