IN THE
TENTH COURT OF APPEALS
No. 10-05-00104-CR
The State of Texas,
Appellant
v.
john bernard wachsmann,
Appellee
From the County Court at Law
McLennan County, Texas
Trial Court No. 2004-3924-CR1
DISSENTING Opinion
For the reasons stated in my dissenting opinion in State v. Stanley, No. 10-05-00101-CR (Tex. App.—Waco July 27, 2005, no pet. h.), I dissent.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed July 27, 2005
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IN THE
TENTH COURT OF APPEALS
No. 10-03-00145-CV
In the Matter of the Estate of Lydia Mais,
From the 361st District Court
Brazos County, Texas
Trial Court # 03-000792-CV-361
MEMORANDUM Opinion
Donald L. Mais appeals from a summary judgment granted by the County Court at Law No. 1 of Brazos County (the county court) in a proceeding brought by his son, Gordon L. Mais, concerning the property of Donald’s mother Lydia Mais, who died on October 12, 1991. Donald’s other son, Jeffery A. Mais, is not a party to the suit.[1]
Before we address the issues, we recite a brief history.
Gordon filed suit in the 361st District Court in Brazos County to partition certain real property owned by Lydia and for an accounting. Because Lydia’s will had not been admitted to probate, the district court determined that it had no jurisdiction over any part of the proceeding other than the partition claim. By agreement of the parties, the case was transferred to the county court. After the transfer Gordon supplemented his pleadings to include a prayer that the will be admitted to probate as a muniment of title only, as more than four years had elapsed since his grandmother’s death. Tex. Prob. Code Ann. § 73 (Vernon 2003). Both Gordon and Donald then filed motions for summary judgment. On September 10, 2001, the county court denied Donald’s motion and granted Gordon’s. On September 12, the court admitted the will to probate as a muniment of title.
Donald appealed the grant of the summary judgment. We determined that the court had improperly granted the summary judgment prior to admitting Lydia’s will to probate as a muniment of title, and we remanded the cause for further proceedings. See In the Matter of the Estate of Lydia Mais, No. 10-02-00024-CV, slip op. at 3-4 (Tex. App.—Waco August 21, 2002, no pet.) (not designated for publication). No appeal was taken from the order admitting the will to probate.
On remand, the court again rejected Donald’s motion for summary judgment and granted Gordon’s. The court made several findings, including:
· Donald spent or used $90,887.42 in funds that belonged to Lydia’s Estate;[2]
· Donald owes “the Estate” $40,878.27;
· Under Lydia’s will, Gordon and Jeffery are entitled to one-fourth each and Donald is entitled to one-half;
· Donald chose not to probate Lydia’s will so as to increase his share of her estate;
· The county court has no jurisdiction over Gordon’s request for a partition of the real property interest owned by Lydia or of his request for a constructive trust;
· Donald should be enjoined from serving as Executor;
· Donald should pay all court costs;
· Delbert Hovorak was named alternate executor; and
· Lydia’s will had been probated as a muniment of title.
The court rendered judgment for “the Estate” against Donald for $40,878.27, enjoined him from serving as executor, declared its jurisdiction “terminated,” and transferred the case back to the 361st District Court.
In this second appeal, Donald says that the court had no jurisdiction to do anything Gordon requested other than admit the will to probate as a muniment of title and, alternatively, that there were fact issues that precluded summary judgment.
A court may exercise only the jurisdiction accorded it by the constitution or by statute. City of Beaumont v. West, 484 S.W.2d 789, 791 (Tex. Civ. App.CBeaumont 1972, writ ref'd n.r.e.). Subject matter jurisdiction may not be enlarged by an agreement between the parties or by a request that the court exceed its powers. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993).
We held in Estate of Kurtz that the jurisdiction of the McLennan County Court at Law terminated when the Constitutional County Court’s order admitting a will to probate as a muniment of title became final, and that pleadings filed thereafter seeking an inventory and accounting of the estate were properly dismissed. In re Estate of Kurtz, 54 S.W.3d 353, 356 (Tex. App.—Waco 2001, no pet.). We noted that sections 5(e) and 5A(a) of the Probate Code could not be the basis for jurisdiction because there was no “estate.” We find, however, at least two distinctions between Kurtz and this case. First, the county court in Brazos County has additional civil jurisdiction that the Constitutional County Court of McLennan County did not have, i.e., that of a statutory county court. Tex. Gov’t Code Ann. §§ 25.003, 25.0231, 25.0232 (Vernon 2004). Second, the request for action by the court other than the probating of the will as a muniment of title was made by Gordon before the case was transferred to the county court at law and the will was probated, not afterward. Thus, Kurtz does not entirely answer this question, so we look to other possible grants of jurisdiction.
Section 5(f) of the Probate Code gives all courts exercising original probate jurisdiction the power to hear all matters “incident to an estate.” Tex. Prob. Code Ann. § 5(f) (Vernon Supp. 2004-05). Here, there was and is no “estate” for a matter to be incident to. See id. § 5A(a) (Vernon Supp. 2004-05).
Gordon points to section 89C of the Probate Code that allows the court to include “in the order probating the will as a muniment of title” a declaratory judgment. Id. § 89C(b) (Vernon 2003). Here, however, the order probating the will did not contain such a declaration and it became final without appeal.
It is clear that the county court was exercising its probate jurisdiction. Gordon filed pleadings in his own name, but the court dealt with those claims only in connection with its probate jurisdiction. And the judgment it rendered was in favor of a non-existent “estate.”[3] Thus, although the county court has jurisdiction of civil matters up to $100,000, the summary judgment order does not purport to exercise that jurisdiction. We conclude that the county court was without jurisdiction to render the order.
Having found that the court lacked jurisdiction to enter it, we do not reach Donald’s issues concerning the propriety of the summary judgment.
We reverse the summary judgment and remand the cause to the 361st district court, to which the county court had transferred it prior to this appeal.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurs in the judgment, but not the opinion, of the Court.)
Reversed and remanded
Opinion delivered and filed December 29, 2004
[CV06]
[1] Although the caption lists the 361st District Court and its cause number, the order appealed from was rendered by the county court prior to returning the case to the district court.
[2] The determination of the rights of the parties is further complicated by the fact that Donald inherited a portion of his father’s estate and was appointed trustee for Lydia over another portion. Apparently Donald and Lydia never divided that estate between them during her lifetime or observed the trust provisions.
[3] Even if there were an “estate,” an estate itself is not a legal entity and therefore cannot sue or be sued. See Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex. 1987). Nor is there a personal representative to sue on behalf of the non-existent estate.