Ayala v. Brittingham, 04-01-00204-CV.

• Decision Date: 02 July 2003
• Docket Number: No. 04-01-00204-CV.,04-01-00204-CV.
• Parties: Maria Cristina Brittingham-Sada de AYALA, Appellant, v. Ana Maria de la Fuente de BRITTINGHAM, Executrix of the Estate of Juan Roberto Brittingham-McLean, Deceased; The Estate of Juan Roberto Brittingham-McLean; and John R. Brittingham Aguirre, Appellees.
• Court: Texas Court of Appeals

131 S.W.3d 3

Maria Cristina Brittingham-Sada de AYALA, Appellant, v. Ana Maria de la Fuente de BRITTINGHAM, Executrix of the Estate of Juan Roberto Brittingham-McLean, Deceased; The Estate of Juan Roberto Brittingham-McLean; and John R. Brittingham Aguirre, Appellees.

No. 04-01-00204-CV.

Court of Appeals of Texas, San Antonio.

July 2, 2003.

Rehearing Overruled January 6, 2004.

W. Wendell Hall, Rosemarie Kanusky, Fulbright & Jaworski L.L.P., C.M. Zaffirini, Zaffirini & Castillo, Laredo, for appellant.

Bruce J. Werstak, III, Sames & Werstak, L.L.P., Alberto Alarcon, Guillermo G. Alarcon, A. Federico Longoria, III, Hall, Quintanilla & Alarcon, L.C., Jesus M. Dominguez, Law Office of Jesus M. Dominguez, Laredo, Patton G. Lochridge, McGinnis, Lochridge & Kilgore, L.L.P., Austin, for appellees.

Sitting: ALMA L. LÓPEZ, Chief Justice, PAUL W. GREEN, Justice, PHIL HARDBERGER, Chief Justice (Retired).¹

ON MOTION FOR REHEARING

Opinion by PAUL W. GREEN, Justice.

The appellees' motion for rehearing is granted. This court's opinion and judgment issued March 13, 2002 are withdrawn and the following is substituted.

* * *

The County Court at Law of Webb County, Texas, sitting as a probate court, admitted the will of Juan Roberto Brittingham-McLean (Don Juan) to ancillary probate and issued ancillary letters testamentary to the appellee, Ana Maria de la Fuente de Brittingham, wife of the deceased (Brittingham). Brittingham filed suit against a number of Don Juan's heirs, including appellant, Maria Christina Brittingham-Sada de Ayala (Ayala), claiming the heirs wrongfully appropriated over $60,000,000.00 in assets from Don Juan's estate. Ayala filed a motion to dismiss the Texas probate action, claiming the Webb County probate court has no subject matter jurisdiction over Brittingham's claims, or in the alternative, a motion to remove Brittingham as executrix of the estate in Texas. The trial court denied both motions, and Ayala filed this appeal.

Brittingham contends this court has no jurisdiction over Ayala's appeal because the probate court's order is not final for purposes of appeal. We hold we have jurisdiction over the appeal. We affirm the trial court's order admitting the will to probate; however, we reverse the trial court's order appointing Brittingham executrix of the estate in Texas and remand for further proceedings.

Background and Procedural History

Don Juan, a resident of Mexico, died in Mexico on January 14, 1998. The two executors named in Don Juan's will, Harold Turk and Raul Hernandez-Garcia (Hernandez), submitted the will for probate in Mexico on January 28, 1998. The executors then withdrew funds deposited in a Laredo, Texas bank account and distributed them to Don Juan's heirs as per Don Juan's instructions. Don Juan had also funded two foreign companies, Sandfern (an Irish company) and Jubrico (a British Virgin Islands company), but he owned no record interest in those companies at the time of his death. However, Turk and Hernandez, as sole shareholders of Sandfern and Jubrico, distributed the assets held by those companies to the heirs in accordance with prior instructions from Don Juan. Hernandez testified that by the end of March 1998, neither the estate nor the two foreign companies held any assets in Texas.

In March 1998, both Turk and Hernandez resigned as executors. After Turk and Hernandez made their distributions and resigned as executors, two of Don Juan's heirs filed multi-million dollar claims against the estate in Mexico based on loans allegedly made to Don Juan. The record reflects that if these debts are validated and paid, the estate may lack sufficient funds to pay taxes and fulfill the bequests in the will.

In February 1999, Brittingham sued Don Juan's estate in Mexico, seeking to set aside her marital agreement with Don Juan and asserting a community property claim to assets of Don Juan's estate. The Mexican court denied her claim, and an appeal is pending. The Mexican probate is also still pending. According to witnesses, no inventory has been completed in Mexico, no debts have been paid, and no distribution has been made. The successor executor appointed by the Mexican court has tendered his resignation but he has not yet been released from his appointment by the court.²

In August 2000, Brittingham filed an application for ancillary probate of Don Juan's will in Webb County, Texas.³ The probate court admitted the will to probate and issued ancillary letters testamentary naming Brittingham as executrix and requiring her to file a bond. Thereafter, Brittingham filed suit against Ayala and other heirs to Don Juan's estate, claiming, among other things, they illegally withdrew some $60-70,000,000.00 from the assets of the estate. John R. Brittingham Aguirre (Aguirre) intervened in the Texas probate action, tendering his claim against the estate for approximately $11,000,000 based on a 1994 loan he made to Don Juan. Ayala filed motions to dismiss the entire ancillary probate proceeding for lack of subject matter jurisdiction and, in the alternative, to remove Brittingham as executrix of the estate. The trial court denied both motions and confirmed Brittingham as executrix of the estate.

Appellate Jurisdiction

We must first determine whether the probate court's order is final for purposes of appeal. An appealable order in a probate proceeding need not be one which fully and finally disposes of the entire probate proceeding. Crowson v. Wakeham, 897 S.W.2d 779, 781-82 (Tex.1995). A probate proceeding consists of a continuing series of events, in which the probate court may make decisions at various points in the administration of the estate on which later decisions will be based. Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex.App.-Austin 2000, pet. denied). "The need to review controlling, intermediate decisions before an error can harm later phases of the proceedings has been held to justify modifying the `one final judgment rule'" in probate proceedings. Id. at 688.

If there is an express statute, such as the one for the complete heirship judgment, declaring the phase of the probate proceedings to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.

Crowson, 897 S.W.2d at 783. Thus, the question becomes whether the order at issue "disposed of each issue raised in the pleadings for that proceeding, or whether the order conclusively disposed of that phase of the proceeding." Logan, 21 S.W.3d at 688.

In this case, the Webb County probate court order addresses all the relief requested by Ayala's motion, resolves the question of subject matter jurisdiction, and confirms the admission of the will to probate and the appointment of Brittingham as executrix, overruling objections about her capacity to be appointed. Applying Crowson, we hold the probate court's order completes the initial phase of the probate proceeding and is final for purposes of appeal. See Crowson, 897 S.W.2d at 783; Logan, 21 S.W.3d at 688; In re Estate of Vigen, 970 S.W.2d 597, 598-99 (Tex. App.-Corpus Christi 1998, no pet.); Kay v. Sandler, 718 S.W.2d 872, 873-74 (Tex. App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.). Appellees' motion to dismiss the appeal for lack of jurisdiction is denied.

Subject Matter Jurisdiction

The burden to establish subject matter jurisdiction in the trial court lies with the plaintiff. Amador v. San Antonio State Hosp., 993 S.W.2d 253, 254 (Tex. App.-San Antonio 1999, pet. denied). Although the trial court should look primarily to the plaintiff's pleadings, the trial court may hear evidence regarding jurisdiction as necessary. Bland I.S.D. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The trial court should avoid making rulings on the merits of the case while determining subject matter jurisdiction. Id. We review the trial court's legal conclusions on subject matter jurisdiction de novo. Spindletop MHMR v. Doe, 54 S.W.3d 893, 895 (Tex.App.-Beaumont 2001, pet. denied). If the trial court has made findings of fact in connection with its review of jurisdiction, we review those findings for sufficiency of the evidence. Lonza AG v. Blum, 70 S.W.3d 184, 189 (Tex.App.-San Antonio 2001, pet. denied).

When assets of a foreign estate lie in Texas, Section 95 of the Texas Probate Code allows a foreign will to be admitted to ancillary probate proceedings in Texas to establish title to the Texas property. Tex. Prob.Code Ann. § 95(a) (Vernon 2003). The proponent must offer the "written will of a testator who was not domiciled in Texas at the time of his death which would affect any real or personal property in this State." Id. The proponent must prove the will "stands probated or established in any of the United States, its territories, the District of Columbia, or any foreign nation." Id. Upon proper proof, the admission of the will is ministerial. No prior citation or service is required. Tex. Prob. Code Ann. § 95(b)(1) (Vernon 2003); Wagner v. Duncan's Estate, 546 S.W.2d 859, 861-62 & n. 1 (Tex.Civ.App.-Dallas 1977, no writ). Once the will is admitted to probate under section 95, the will is "effectual to dispose of both real and personal property in this State." Tex. Prob.Code Ann. § 95(e).

The probate of a foreign will is dependent upon the existence of property in Texas belonging to the estate. See De Tray v. Hardgrove, 52 S.W.2d 239, 240 (Tex. Comm'n App.1932, jdgm't adopted); Owen v. Younger, 242 S.W.2d 895, 898 (Tex.Civ.App.-Amarillo 1951, no writ). "The word `property' as here used[] mean[s] either specific property found or a right of action for debt or unliquidated damages to which such estate may be entitled." See Cooper v. Gulf, C. & S.F. Ry. Co., 41 Tex.Civ.App. 596, 604, 93 S.W. 201, 204 (Tex.App.-Dallas 1906, writ ref'd). A suit to recover...