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NUMBER 13-03-00696-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE: THE JOHN G. AND MARIE STELLA
KENEDY MEMORIAL FOUNDATION, et al., Relators.
On Petition for Writ of Mandamus
DISSENTING OPINION
Before Chief Justice Valdez and Justices Hinojosa and Castillo
Dissenting Opinion by Justice Castillo
I respectfully dissent. I would deny the petition on the merits. The underlying litigation in this original proceeding chronicles imperishable claims to the real property of South Texas rancher John G. Kenedy, Jr., his wife Elena Suess Kenedy, and his sister Sarita K. East. The family saga from which this petition for mandamus emerged is serialized in prior opinions of this and other courts, where the reader can find a complete list of the parties and other details. This latest chapter recounts the recent claims of the real party in interest, Ann M. Fernandez. Fernandez alleges she is the biological, extramarital daughter and sole heir of John G. Kenedy, Jr. I present only an abbreviated summary of events here to place this request for extraordinary relief in its proper context.
The John G. and Marie Stella Kenedy Memorial Foundation (the "Foundation"), The John G. Kenedy, Jr. Charitable Trust (the "Trust"), and parties aligned with the Trust challenge a statutory probate court judge's transfer of three bill-of-review proceedings filed in district court by Fernandez. See Tex. Prob. Code Ann. § 5B. I would deny the petition for writ of mandamus.
I. THE ISSUES PRESENTED
In a joint petition for mandamus, the Foundation and Trust assert they are entitled to extraordinary relief to correct the statutory probate court judge's interference with the jurisdiction of the district court by unilaterally transferring the bill-of-review proceedings. See id. The Foundation and Trust do not suggest that Fernandez's claims are not "appertaining to or incident to an estate." See id. Rather, they argue they are entitled to extraordinary relief because: (1) a bill of review must be decided by the court that rendered the challenged judgment; and (2) no estate was pending before the statutory probate court judge when the judge ordered the transfers. They conclude there is no adequate remedy for the statutory probate court judge's interference with the district court's jurisdiction, citing In re SWEPI, L.P., 85 S.W.3d 800 (Tex. 2002) (orig. proceeding). The Foundation and Trust point out that the supreme court granted mandamus relief in In re SWEPI in reversing a statutory probate court's section 5B transfer. See id. at 809; see also Tex. Prob. Code Ann. § 5B.
Fernandez responds that the Foundation and Trust are not entitled to the extraordinary remedy provided by mandamus. She directs our attention to the record. The record reflects that the Foundation and Trust: (1) successfully sought and do not challenge the statutory probate court judge's assignment pursuant to section 5(b) of the probate code; and (2) do not challenge the statutory probate court judge's transfer of other proceedings as requested by the Foundation and Trust themselves.
The Foundation and Trust counter that jurisdiction cannot be conferred by agreement and may be challenged at any time. They acknowledge that pleas to the jurisdiction, as incidental trial rulings for which the relator generally has an adequate appellate remedy, ordinarily are not reviewable by mandamus. See In re SWEPI, 85 S.W.3d at 808. Nonetheless, the Foundation and Trust argue, mandamus relief is appropriate when one court interferes with another court's jurisdiction. See id. at 809. I turn to a discussion of the statutory probate court legislative scheme and transfers at issue. I present only an abbreviated summary of events here to place this original proceeding in its proper context.
II. THE CHALLENGED TRANSFERS
A. The Underlying Causes of Action
On October 16, 2001, Fernandez filed in the County Court of Kenedy County, Texas, sitting in probate, an "Application to Set Aside Order Probating Will with Application for Declaration and Determination of Heirship" in Case No. 189 (Estate of John G. Kenedy, Jr.). On May 8, 2002, she filed bill-of-review proceedings in a "Plaintiff's Original Petition with Application for Temporary Restraining Order" in Case No. 02-2331-C (Fernandez v. Exxon Mobil) in the 94th District Court of Nueces County, Texas. On May 9, 2002, she filed bill-of-review proceedings in an "Application for Declaration of Heirship and Suit for Accounting and Distribution" in Case No. 344 (Estate of Sarita K. East) and in Case No. 379 (Estate of Elena Suess Kenedy), also in the County Court of Kenedy County, Texas, sitting in probate. That same day and in the same court, Fernandez filed bill-of-review proceedings in an "Application for Declaration of Heirship and Suit for Accounting and Distribution" in new Case No. 395 (Estates of John G. Kenedy, Jr., Sarita K. East, and Elena Suess Kenedy). On May 14, 2002, Fernandez filed in the 105th District Court of Nueces and Kenedy Counties a bill of review in an "Application for Declaration of Heirship and Suit for Accounting and Distribution" in Case No. 02-2959-D (originally 101-209-D) (Sarita K. East Will Contest).
B. The Assignment of a Statutory Probate Court Judge with Transfer Power
1. The Statutory Authority for the Assignment
Kenedy County does not have a statutory probate court. See Tex. Gov't Code Ann. §§ 25.1331-.1340 (reserved for Kenedy County). In counties with no statutory probate court, section 5(b) of the probate code outlines the following procedure in contested probate matters:
(b)In those counties in which there is no statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court, all applications, petitions, and motions regarding probate and administrations shall be filed and heard in the county court, except that in contested probate matters, the judge of the county court may on the judge's own motion (or shall on the motion of any party to the proceeding, according to the motion) request as provided by Section 25.0022, Government Code, the assignment of a statutory probate court judge to hear the contested portion of the proceeding, or transfer the contested portion of the proceeding to the district court. . . .
Tex. Prob. Code Ann. § 5(b). "Probate matter" is defined by section 3(bb) of the probate code:
"Probate matter," "Probate proceedings," "Proceeding in probate," and "Proceedings for probate" are synonymous and include a matter or proceeding relating to the estate of a decedent.
Tex. Prob. Code Ann. § 3(bb). "Estate" is defined by section 3(l):
"Estate" denotes the real and personal property of a decedent, both as such property originally existed and as from time to time changed in form by sale, reinvestment, or otherwise, and as augmented by any accretions and additions thereto (including any property to be distributed to the representative of the decedent by the trustee of a trust which terminates upon the decedent's death) and substitutions therefor, and as diminished by any decreases therein and distributions therefrom.
Tex. Prob. Code Ann. § 3(l). The county court is without discretion to ignore a party's request for assignment of a statutory probate court judge under section 5(b). In re Vorwerk, 6 S.W.3d 781, 784-85 (Tex. App.–Austin 1999, orig. proceeding).
2. The Foundation's and the Trust's Requests for Assignment
On May 14, 2002, the Foundation filed a motion in Case No. 395 that asked the Kenedy County Court for assignment of a statutory probate court judge pursuant to section 5(b). See Tex. Prob. Code Ann. § 5(b). The Foundation filed a similar motion on May 15, 2002 in Case No. 344. On June 10, 2002, the Trust followed suit in Case No. 395. That same day, the Kenedy County Court granted the Foundation's and the Trust's motions for assignment of a statutory probate court judge.
3. The Assignment Procedure
Section 25.0022 of the government code governs the administration of statutory probate courts and provides:
(h)A judge or a former or retired judge of a statutory probate court may be assigned to hold court in a statutory probate court, county court, or any statutory court exercising probate jurisdiction when:
* * *
(7)a county court judge requests the assignment of a statutory probate judge to hear a probate matter in the county court;
* * *
(i)A judge assigned under this section has the jurisdiction, powers, and duties given by Sections 5, 5A, 5B, 606, 607, and 608, Texas Probate Code, to statutory probate court judges by general law.
Tex. Gov't Code Ann. § 25.0022(h)(7), (i) (Vernon Supp. 2004).
4. The Assignment
On June 28, 2002, on the request of the Kenedy County Court, the presiding statutory probate judge appointed a statutory probate court judge in Case Nos. 344 and 395. The minute order documenting the assignment specifies that the statutory probate court judge is "to preside over all contested matters in the above-referenced causes with all rights, powers and privileges held by the regular judge of the court assigned and the attendant jurisdiction of a statutory probate court."
5. The Transfer Power of Statutory Probate Court Judges
Section 5B of the probate code applicable to this case ("Transfer of Proceedings") provides:
A judge of a statutory probate court on the motion of a party to the action or on the motion of a person interested in the estate, may transfer to his court from a district, county, or statutory court a cause of action appertaining to or incident to an estate pending in the statutory probate court and may consolidate the transferred cause of action with the other proceedings in the statutory probate court relating to that estate.
Tex. Prob. Code Ann. § 5B. A statutory probate court is defined in section 3(ii) of the probate code as:
a statutory court designated as a statutory probate court under Chapter 25, Government Code. A county court at law exercising probate jurisdiction is not a statutory probate court under this Code unless the court is designated a statutory probate court under Chapter 25, Government Code.
Tex. Prob. Code Ann. § 3(ii). Finally, section 5A(d) of the probate code provides that "[a] statutory probate court may exercise the pendent and ancillary jurisdiction necessary to promote judicial efficiency and economy." Tex. Prob. Code Ann. § 5A(d).
The purpose of this assignment and transfer statutory scheme is to promote judicial economy and the efficient administration of estates by permitting transfer of related proceedings from other courts. See Reliant Energy, Inc. v. Gonzalez, 102 S.W.3d 868, 881 (Tex. App.–Houston [1st Dist.] 2003, pet. granted) (en banc) (op. on reh'g); see In re Houston Northwest Partners, 98 S.W.3d 777, 780-81 (Tex. App.–Austin 2003, orig. proceeding) (citing In re Ramsey, 28 S.W.3d 58, 62-63 (Tex. App.–Texarkana 2000, orig. proceeding) ("Section 5B's purpose is to allow consolidation of all causes of action incident to an estate in the statutory probate court in order to promote efficient administration of estates and judicial economy."); Henry v. LaGrone, 842 S.W.2d 324, 327 (Tex. App.–Amarillo 1992, orig. proceeding) ("The purpose of Section 5B is to allow a statutory probate court to consolidate all causes of action which are incident to an estate so that the estate can be efficiently administered.")); see also In re Graham, 971 S.W.2d 56, 59-60 (Tex. 1998) (orig. proceeding) (discussing legislative intent "as evidenced by the Legislature's persistent expansion of statutory probate court jurisdiction over the years"). The transfer power conferred on statutory probate court judges allows consolidation in one court of all causes of action incident to an estate. See Reliant Energy, 102 S.W.3d at 881.
6. The Foundation's and the Trust's Requests for Transfers
On July 17, 2002, the Foundation sought transfer by the newly assigned statutory probate court judge of the bills of review in Case No. 02-2331-C, pending in the 94th District Court, and Case No. 02-2959-D, pending in the 105th District Court. On July 19, 2002, the Trust also filed a motion to transfer but did not seek transfer of Case No. 02-2959-D. On August 23, 2002, the Attorney General of the State of Texas intervened.
7. The Transfer Order
The statutory probate court judge granted the Foundation's request and transferred and consolidated Case No. 02-2959-D, along with the other transfers the Foundation and Trust requested, by order dated November 5, 2002. The Foundation and Trust now challenge the transfer of Case No. 02-2959-D from the 105th District Court. They do not challenge the transfer of Case No. 02-2331-C from the 94th District Court.
8. Fernandez's Requests for Transfers
On May 13, 2003, Fernandez filed bills of review in Case No. 03-CV-50 (originally Case No. 35) (Humble Oil v. East, et al.) and Case No. 03-CV-51 (originally Case No. 85) (Garcia v. Kenedy Memorial Foundation), both in the 105th District Court. On August 13, 2003, Fernandez filed motions to transfer and consolidate Case Nos. 03-CV-50 and 03-CV-51 into Case No. 395.
At this point, the Foundation and Trust opposed Fernandez's requested transfers from the 105th District Court of the bill-of-review proceedings in Case Nos. 03-CV-50 and 03-CV-51. They filed motions to dismiss, later joined by the Attorney General, asserting that the statutory probate court lacked jurisdiction because: (1) there was no currently pending estate matter to which its jurisdiction could attach or on which jurisdiction over matters incident to an estate could attach; (2) only the court that rendered the judgment being attacked has jurisdiction over a bill of review; and (3) there was no statutory basis for the court's assumption of jurisdiction over the various issues in the case.
On August 27, 2003, the statutory probate court judge granted Fernandez's motion and transferred the two additional bill-of-review proceedings from the 105th District Court. By order dated September 11, 2003, the statutory probate court judge denied the Foundation's, the Trust's, and the Attorney General's motions to dismiss. In addition to the transfer of Case No. 02-2959-D, the Foundation and Trust now challenge the transfers of Case Nos. 03-CV-50 and 03-CV-51. Each is a bill of review attacking a final judgment or order of the 105th District Court. The other bills of review filed by Hernandez attack a final judgment in the 94th District Court and judgments or orders of the Kenedy County Court, including the probate of John G. Kenedy, Jr.'s will.
III. DISPOSITION
A. Mandamus Standard of Review
Mandamus is appropriate only when the record shows: (1) the trial court clearly abused its discretion or violated a duty imposed by law; and (2) no adequate remedy by appeal exists. In re Daisy Mfg. Co., 17 S.W.3d 654, 658 (Tex. 2000) (orig. proceeding) (per curiam). A trial court abuses its discretion in determining the legal principles that control its ruling if the court clearly fails to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
B. Denial of Extraordinary Relief
I assume, without deciding for purposes of this request for extraordinary relief, that the Foundation and Trust's objections to the transfer of bill-of-review proceedings to the statutory probate court judge are jurisdictional in nature. I agree with the majority that the jurisdiction of a court cannot be conferred by consent, waiver, or estoppel. See Fed. Underwriters Exch. v. Pugh, 174 S.W.2d 598, 600 (Tex. 1943); Tourneau Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 910 (Tex. App.–Houston [1st Dist.] 2000, no pet.) (op. on reh'g). Lack of subject-matter jurisdiction is fundamental error and may be raised for the first time in an appellate court. See Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991) (per curiam).
However, entitlement to extraordinary relief is subject to waiver principles grounded in equity. See Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding) ("Mandamus is an extraordinary remedy, not issued as a matter of right, but at the discretion of the court. Although mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles.") (citation omitted). "One such principle is that 'equity aids the diligent and not those who slumber on their rights.'" Id. (quoting Callahan v. Giles, 155 S.W.2d 793, 795 (Tex. 1941) (orig. proceeding)).
The majority holds that the statutory probate court judge had no jurisdiction to transfer the bill-of-review proceedings because there was no "estate pending" in front of the statutory probate court judge at the time of the challenged transfers. I agree that a statutory probate court judge's transfer authority under section 5B is predicated on an "estate pending" to which the transferred case may attach. See Tex. Prob. Code Ann. § 5B. However, assignment of a statutory probate court judge in the first place only may occur in "contested probate matters." See Tex. Prob. Code Ann. § 5(b). Thus, if either: (1) transfers were not authorized by section 5B because there was no "estate pending"; or (2) assignment of a statutory probate court judge was not authorized by section 5(b) because there were no "contested probate matters," all of the judge's transfers would be subject to challenge, not just transfer of the bill-of-review proceedings now challenged by the Foundation and Trust. See Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (explaining difference between void and voidable judgments); see also Shell Cortez Pipeline Co. v. Shores, 127 S.W.3d 286, 295 (Tex. App.–Fort Worth 2004, no pet.) (holding void for lack of subject-matter jurisdiction class certification order signed by statutory probate court judge).
Accordingly, I find dispositive the Foundation's and the Trust's requests for and failure to challenge at the time either the statutory probate court judge's assignment or the transfers, at their request, of Fernandez's other causes of action, including the bills of review from the 94th District Court and from the Kenedy County Court sitting in probate. Delay alone provides ample ground to deny mandamus relief. See In re Xeller, 6 S.W.3d 618, 624 (Tex. App.–Houston [14th Dist.] 1999, orig. proceeding) (and cited cases) (denying mandamus relief on laches grounds when sixteen months after appointment of master, relators challenged initial appointment, not master's recommendations).
Moreover, the question of abuse of discretion goes to whether the statutory probate court judge acted without guiding rules and principles in transferring the bill-of-review proceedings. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). I further distinguish In re SWEPI in that the supreme court held there that the transferred suit was not appertaining to or incident to the pending estate and therefore not subject to transfer. In re SWEPI, 85 S.W.3d at 808. The Foundation and Trust do not suggest that Fernandez's bills of review are not "appertaining to or incident to an estate." See Tex. Prob. Code Ann. § 5B. Rather, they rely solely on cases citing the general common-law principle that bills of review are to be decided by the court whose judgment is being attacked. See e.g., Solomon, Lambert, Roth & Assocs., Inc. v. Kidd, 904 S.W.2d 896, 900 (Tex. App.–Houston [1st Dist.] 1995, no writ). The Foundation and Trust cite no authority, nor have I discovered any, expressly excluding bill-of-review proceedings from the exercise, by a duly assigned statutory probate court judge, of the transfer authority conferred by the assignment. See In re Am. Home Prods. Corp., 980 S.W.2d 506, 510 (Tex. App.–Waco 1998, orig. proceeding) (denying mandamus relief over discovery order where "Relators have cited no authority prohibiting disclosure of the reports. . . ."). Thus, the guiding rules and principles applied by the statutory probate court judge in this case were the specific powers and transfer authority conferred by the probate and government codes and the more general common law governing bills of review. The statutory probate court judge balanced convenience with comity in favor of exercising the transfer power that flows from his unchallenged assignment under section 5(b). See Tex. Prob. Code Ann. § 5(b).
The majority's decision leads to the extraordinary result that a duly assigned statutory probate court judge would have no authority in other circumstances to transfer, under section 5B, the same bill of review that gave rise to the assignment under section 5(b) in this case. I would find that the statutory probate court judge's decision to transfer the bills of review is consistent with the Legislature's intent in conferring broad transfer powers on statutory probate courts. See In re Graham, 971 S.W.2d at 59-60.
I note that Fernandez has asserted either statutory bills of review under the probate code or equitable bills of review. See Tex. Prob. Code Ann. §§ 31, 93 (statutes of limitation in statutory bills of review and will contests); see also Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (Vernon 1997) (residual limitations period applicable to equitable bills of review). Both may be subject to the discovery rule. See Vandehaar v. ALC Fin. Corp., 25 S.W.3d 406, 409 (Tex. App.–Beaumont 2000, pet. denied) (equitable bill of review); see also Escontrias v. Apodaca, 629 S.W.2d 697, 698 (Tex. 1982) (statutory bill of review under section 93). As the majority notes, whatever the merits of Fernandez's attacks on the earlier judgments, she must prove her entitlement to prevail on the merits of her bills of review. She must hurdle the applicable statutes of limitation in each case as well. The decisions in those cases now will be made by different judges. The majority opinion leaves these parties with all the potential for duplicative effort and expenditures and inconsistent results inherent in parallel adjudications of the same rights between the same parties.
Finally, in determining if mandamus should issue, we cannot plumb the subjective reasoning of the court below. In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 605 (Tex. 1998) (orig. proceeding). We must focus on the record before the court and whether the decision not only was arbitrary but also amounted "'to a clear and prejudicial error of law.'" Walker, 827 S.W.2d at 839 (quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). Given the pendency before the statutory probate court judge of other unchallenged proceedings that assert Fernandez's claim to the Kenedy estate, this record does not show that the Foundation and Trust will be prejudiced by transfer and consolidation of Fernandez's district court bills of review with the other proceedings. See In re Bristol-Myers, 975 S.W.2d at 605; see also Walker, 827 S.W.2d at 839.
For each of these reasons, I cannot say the Foundation and Trust have satisfied the onerous burden of demonstrating that the statutory probate court judge clearly failed to analyze or apply the law correctly. See Walker, 827 S.W.2d at 840. Accordingly, I would find no abuse of discretion by the statutory probate court judge who, while serving at the Foundation and Trust's behest, transferred bills of review and consolidated them with other proceedings already transferred, also at their request. Equity does not permit the Foundation and Trust to dismantle only part of the statutory probate court judge's exercise of section 5B's transfer authority while enjoying the convenience and consistency of consolidated proceedings through the conclusion of the remainder of this litigation. Mandamus is not appropriate.
IV. CONCLUSION
I would deny the Foundation and Trust's request for extraordinary relief. I would express no opinion in this proceeding on the merits of the Foundation's and the Trust's motions to dismiss. See State Bd. of Ins. v. Williams, 736 S.W.2d 260, 261 (Tex. App.–Austin 1987, orig. proceeding).
ERRLINDA CASTILLO
Justice
Dissenting Opinion delivered and filed
this 16th day of June, 2004.
Document Info
Docket Number： 13-03-00696-CV
Filed Date： 6/16/2004
Precedential Status： Precedential
Modified Date： 2/1/2016