Reversed and Remanded and Memorandum Opinion filed June 16, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-07-01013-CV
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CECIL GAMMILL, JR., Appellant
V.
JOHN GAMMILL, DANIEL GAMMILL, KATHLEEN GAMMILL BUNGARD, JANICE MARIE GAMMILL, LAURA MAY GAMMILL, THE ESTATE OF JACKIE MARIE GAMMILL, AND THE GAMMILL FAMILY TRUST, Appellees
On Appeal from the Probate Court No. 2
Harris County, Texas
Trial Court Cause No. 332,455-402
M E M O R A N D U M O P I N I O N
In a statutory probate court, a brother sued his five siblings, his mother=s estate, and a family trust. One of the defendants asserted a plea to the jurisdiction arguing that the probate court lacked subject-matter jurisdiction. The probate court agreed and dismissed all claims. Concluding the probate court had subject-matter jurisdiction, we reverse the probate court=s order and remand for further proceedings.
I. Factual and Procedural Background
Beginning in 2004, various claims were asserted in the 190th District Court of Harris County, Texas (ADistrict Court@) regarding the Gammill Family Trust (hereinafter AFamily Trust@) and title to certain real property in Harris County, Texas (hereinafter AProperty@).[1] On March 9, 2007, while this litigation was pending in the District Court, plaintiff/appellant Cecil Gammill, Jr. (ACecil Jr.@) filed suit in the trial court below (AProbate Court@) against defendants/appellees John Gammill, Daniel Gammill, Kathleen Gammill Bungard, Janice Marie Gammill, Laura May Gammill, the Estate of Jackie Marie Gammill (AEstate@),[2] and the Family Trust[3] (hereinafter collectively ADefendants@). Cecil Jr. asserted claims for (1) trespass to try title, (2) removal of cloud on title, and (3) adverse possession. Cecil Jr. asserted that, either by an alleged purchase-money resulting trust or by adverse possession, Cecil Jr. has superior title to the Property.
In his first amended plea to the jurisdiction, defendant/appellee John Gammill (AJohn@) asserted that the District Court, rather than the Probate Court, had jurisdiction over Cecil Jr.=s claims. John noted that the District Court already had rendered a judgment and argued that the Probate Court lacked jurisdiction to hear any suit concerning the Property. John asked that Cecil Jr.=s claims be dismissed for lack of jurisdiction. Cecil Jr. argued that the Probate Court had subject-matter jurisdiction over his claims.
John did not proffer any evidence in support of his first amended plea to the jurisdiction; however, the Probate Court did hear argument of counsel at a hearing. At the hearing, John=s counsel argued as follows:
! Though the District Court had concurrent jurisdiction with the Probate Court before the claims were filed in the District Court, the fact that claims were filed first in the District Court gave the District Court exclusive jurisdiction.
! Because the District Court had rendered final judgment, the Probate Court lacked jurisdiction over Cecil Jr.=s claims, and John=s plea to the jurisdiction should be granted under the doctrine of res judicata.
The Probate Court agreed with John and signed an order granting the plea to the jurisdiction and dismissing Cecil Jr.=s claims for lack of subject-matter jurisdiction.
On appeal, Cecil Jr. asserts that the Probate Court erred in dismissing his claims for lack of subject-matter jurisdiction. In his first issue, Cecil Jr. claims that the Probate Court had subject-matter jurisdiction because his claims are Aappertaining to estates@ or Aincident to an estate@ as those phrases are defined in Texas Probate Code section 5A(b). In his second issue, Cecil Jr. contends that the Probate Court erroneously determined that it lacked subject-matter jurisdiction because the District Court litigation was filed first.
II. Standard of Review
We review de novo a trial court=s ruling on a plea to the jurisdiction. Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When a party has filed a plea to the jurisdiction challenging the pleadings, a reviewing court must construe the pleadings liberally in favor of the pleader and look to the pleader=s intent. See id. If the facts alleged affirmatively demonstrate the trial court=s jurisdiction to hear the cause, the plea to the jurisdiction must be denied. See id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court=s jurisdiction, but do not affirmatively demonstrate incurable defects in the jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. See id. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing an opportunity to amend.[4] See id. at 227. In ruling on a plea to the jurisdiction, a court does not consider the merits of the parties= claims. See id. at 226B28; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).
III. Analysis
A. Does the Probate Court have subject-matter jurisdiction over Cecil Jr.=s claims?
The Probate Court Ahas 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.@ Tex. Prob. Code Ann. ' 5(h) (Vernon Supp. 2009). The terms Aappertaining to an estate@ and Aincident to an estate@ include, among other things, all claims by or against an estate, all actions for trial of title to land, all actions for trial of the right of property, all actions to construe wills, and the interpretation and administration of testamentary trusts. See id. ' 5A(b). Statutory probate courts have concurrent jurisdiction with district courts in all actions involving a testamentary trust. See id. ' 5(e). In this suit, Cecil Jr. asserts that Cecil Sr., in his will, purported to place the Property in the Family Trust and to give Cecil Sr.=s wife Jackie Marie Gammill (AJackie@) a power of appointment regarding the Property and that Jackie, in her will, attempted to devise the Property. Nonetheless, Cecil Jr. asserts that his title to the Property is superior to that of the Estate and the Family Trust. Because Cecil Jr.=s action involves a testamentary trust and the construction of wills, we conclude that the Probate Court has subject-matter jurisdiction over Cecil Jr.=s claims. See id. '' 5, 5A.
B. Did the prior filing of claims in the District Court deprive the Probate Court of subject-matter jurisdiction?
John has asserted that, though the District Court had concurrent jurisdiction with the Probate Court before the claims were filed in the District Court, the prior filing in the District Court gave that court exclusive jurisdiction, and therefore, the Probate Court lacks subject-matter jurisdiction. When cases involving the same subject matter are pending in different courts that have concurrent jurisdiction, the first-filed case takes precedence unless an exception to the general rule applies. See Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001). In any event, the existence of the first-filed case does not deprive the court in which the second case is filed of subject-matter jurisdiction. See Mower v. Bower, 811 S.W.2d 560, 563 n.2 (Tex. 1991); Tovias v. Wildwood Props. P=ship, L.P., 67 S.W.3d 527, 529 (Tex. App.CHouston [1st Dist.] 2002, no pet.). Therefore, even if the claims in the District Court were filed before the claims in the Probate Court, the Probate Court would not lose its subject-matter jurisdiction over the claims in the Probate Court. See Mower, 811 S.W.2d at 563 n.2; Tovias, 67 S.W.3d at 529.
C. Does the District Court=s rendition of a final and appealable judgment deprive the Probate Court of subject-matter jurisdiction under the doctrine of res judicata?
John also argued that, because the District Court had rendered a final and appealable judgment, the Probate Court lacked subject-matter jurisdiction over Cecil Jr.=s claims under the doctrine of res judicata. Presuming, without deciding, that the doctrine of res judicata is applicable, its application would go to the merits of Cecil Jr.=s claims and would not deprive the Probate Court of subject-matter jurisdiction. See Dessens v. Dessens, No. 14-03-00139-CV, 2004 WL 2590580, at *4 (Tex. App.CHouston [14th Dist.] Nov. 16, 2004, pet. denied) (mem. op.).
D. Was the substance of John=s plea a plea in abatement requesting dismissal under the doctrine of dominant jurisdiction?
Because John=s arguments lack merit and because the Probate Court has subject-matter jurisdiction, the Probate Court erred in dismissing Cecil Jr.=s claims for lack of subject-matter jurisdiction. However, John asks, in the alternative, that we treat his plea to the jurisdiction as a plea in abatement seeking dismissal under the doctrine of dominant jurisdiction, because John purportedly assigned the wrong title or form to his plea. John is correct that courts give effect to the substance of a plea or motion rather than its form or title. See State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (1980). Therefore, we examine the law regarding the doctrine of dominant jurisdiction as well as the substance of John=s plea.
When cases involving the same subject matter are brought in different Texas courts, the general rule is that the first court in which suit is filed acquires dominant jurisdiction and should proceed, while the other courts should either abate or dismiss the later-filed case or cases. See Miles v. Ford Motor Co., 914 S.W.2d 135, 138 (Tex. 1995). This rule is grounded on the principles of comity, convenience, and the need for orderly procedure. See id. Even if the court of the first-filed suit has dominant jurisdiction, this does not deprive the other court or courts of subject-matter jurisdiction. See Mower, 811 S.W.2d at 563 n.2. Indeed, there are various exceptions to the general rule of dominant jurisdiction under which the first-filed case does not take precedence. For example, the general rule does not apply if (1) a party=s conduct estops it from asserting dominant jurisdiction, (2) if joinder of all parties in the first-filed case is infeasible or impossible, or (3) if the plaintiff in the first-filed case is not intent on prosecuting his claims. See Perry, 66 S.W.3d at 252. In sum, the doctrine of dominant jurisdiction arises when cases involving the same subject matter are pending in more than one Texas court, each of which has subject-matter jurisdiction, and the need arises to determine which of the cases should take precedence. See Miles, 914 S.W.2d at 138; Mower, 811 S.W.2d at 563 n.2.
In his plea and argument thereon before the Probate Court, John asserted arguments that the Probate Court lacked subject-matter jurisdiction. John did not mention the term Adominant jurisdiction@ or argue that the trial court should abate or dismiss under this doctrine. Rather, John requested the Probate Court to dismiss Cecil Jr.=s claims for lack of subject-matter jurisdiction. The Probate Court granted John=s plea and dismissed for lack of subject-matter jurisdiction. See Reiss v. Reiss, 118 S.W.3d 439, 441B42 (Tex. 2003) (stating that courts must construe trial court orders based on their unambiguous language). To support his argument, John relies on Speer v. Stover. See 685 S.W.2d 22, 23 (Tex. 1985). However, in Speer though the plea was styled a Aplea in abatement,@ the trial court expressly stated that it was dismissing for lack of subject-matter jurisdiction, and the Texas Supreme Court determined that the substance of the plea was a plea to the jurisdiction. See id. Therefore, Speer is not on point. See Tovias, 67 S.W.3d at 529 (distinguishing Speer). We conclude that the substance of John=s plea was a request for a dismissal based on lack of jurisdiction rather than a request for dismissal based on the doctrine of dominant jurisdiction.[5] See Tovias, 67 S.W.3d at 529.
E. Is the Probate Court=s error harmless because the case should have been dismissed under the doctrine of dominant jurisdiction?
In the alternative, John also asserts that, even if he did not ask the Probate Court to dismiss under the doctrine of dominant jurisdiction, this doctrine requires dismissal either following a request by John or sua sponte under an exercise of the Probate Court=s inherent power. This argument incorrectly equates all dismissal orders. See Apollo Prop. Partners, LLC v. Diamond Houston I, No. 14-07-00528-CV, 2008 WL 3017549, at *3 n.5 (Tex. App.CHouston [14th Dist.] Aug. 5, 2008, no pet.) (mem. op.). The Probate Court=s order, if affirmed, would preclude re-litigation of its determination that the Probate Court lacks subject-matter jurisdiction over Cecil Jr.=s claims. See Nguyen v. Desai, 132 S.W.3d 115, 118 (Tex. App.CHouston [14th Dist.] 2004, no pet.); Restatement (Second) of Judgments ' 27 cmt. b (1982). If the Probate Court had dismissed these claims after determining that the District Court case should take precedence under the doctrine of dominant jurisdiction, the effect of that dismissal would be to bar re-litigation of that determination, and there would be no determination that the Probate Court lacked jurisdiction. See Apollo Prop. Partners, LLC, 2008 WL 3017549, at *3 n.5.
In addition, because the Probate Court has not determined whether the case in the District Court takes precedence under the doctrine of dominant jurisdiction and if so, whether Cecil Jr.=s claims should be abated or dismissed, it would be premature for this court to address whether it would be proper for the Probate Court to dismiss Cecil Jr.=s claims under this doctrine.
We conclude that the Probate Court=s error probably caused the rendition of an improper judgment and therefore was not harmless. See id. Accordingly, we sustain Cecil Jr.=s two issues, reverse the Probate Court=s judgment, and remand for further proceedings consistent with this opinion.[6]
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Frost, Brown, and Boyce.
[1] An appeal relating to this District Court litigation is pending in this court as Cause No. 14-07-00705-CV.
[2] An estate itself is not a legal entity and therefore cannot sue or be sued. Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex. 1987).
[3] Cecil Jr. sued the Family Trust rather than its trustee. A trust is not a legal entity. H.E.Y. Trust v. Popcorn Express Co., Inc., 35 S.W.3d 55, 60 n.5 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).
[4] In his plea to the jurisdiction, John did not challenge the existence of jurisdictional facts using evidence; therefore, the standard of review for that situation does not apply. See Miranda, 133 S.W.3d at 227.
[5] In the alternative, John asserts that Cecil Jr. did not preserve error in the Probate Court because Cecil Jr. failed to argue that a plea to the jurisdiction was an incorrect vehicle for asserting the doctrine of dominant jurisdiction. However, John did not assert the doctrine of dominant jurisdiction, and Cecil Jr. did oppose John=s plea requesting a dismissal for lack of subject-matter jurisdiction. Cecil Jr. was not required to suggest alternative arguments or pleas by which John might seek dismissal of Cecil Jr.=s claims.
[6] Our decision today does not preclude any party on remand from asserting the doctrine of dominant jurisdiction, and we do not comment in any way on the merits of such an argument.