Bruflat v. Rodeheaver, 01-91-00878-CV

• Citation: 830 S.W.2d 821
• Decision Date: 28 May 1992
• Docket Number: No. 01-91-00878-CV,01-91-00878-CV
• Parties: Robert E. BRUFLAT, Independent Executor of the Estate of John F. Mueller, Deceased, Appellant, v. Anita RODEHEAVER, in her Capacity as County Clerk of Harris County, Texas, Appellee. (1st Dist.)
• Court: Court of Appeals of Texas

Page 821

830 S.W.2d 821

Robert E. BRUFLAT, Independent Executor of the Estate of John F. Mueller, Deceased, Appellant, v. Anita RODEHEAVER, in her Capacity as County Clerk of Harris County, Texas, Appellee.

No. 01-91-00878-CV.

Court of Appeals of Texas Houston (1st Dist.).

May 28, 1992.

Mike Driscoll, County Atty., Leona M. Franklin, Asst. County Atty., Houston, for appellee.

John W. Wiggins, Sr., Houston, for appellant.

Before DUGGAN, O'CONNOR and DUNN, JJ.

OPINION

DUNN, Justice.

Appellant, Robert E. Bruflat (Bruflat), appeals from the trial court's order of dismissal of his cause of action against appellee, Anita Rodeheaver (Rodeheaver).

On November 11, 1990, Bruflat, through an agent, attempted to file a family settlement agreement in the Harris County real property records. The Harris County Clerk refused to file the agreement because it did not reflect that any real property owned by the estate was located in Harris County, and because the apostille did not emanate from the German consulate as required under the Hague convention and TEX.PROP.CODE ANN. § 11.002(c)(3) (Vernon Supp.1992).

On January 31, 1991, Bruflat filed a petition for writ of mandamus, seeking an order requiring Rodeheaver, in her capacity as County Clerk of Harris County, to file in the Harris County real property records a family settlement agreement entered into by the beneficiaries of the will of John F. Mueller. On March 26, 1991, Bruflat filed a motion for summary judgment. On May 6, 1991, Rodeheaver filed a response to Bruflat's motion for summary judgment and a plea to the jurisdiction. The plea asserted that the probate court did not have jurisdiction because: 1) the filing of an instrument in the real property record is not an action by a personal representative in his capacity as a personal representative; 2) the proceeding is not incident to an estate; and 3) summary judgment was not appropriate.

On July 26, 1991, the trial court signed an order dismissing Bruflat's cause of action for want of jurisdiction. The trial court found that the issue of whether a document should be filed in the real property records was not incident to an estate pursuant to section 5A(b) of the Texas Probate Code, and that the trial court lacked jurisdiction pursuant to sections 5A(c), (d), and (e) of the Texas Probate Code.

In his sole point of error, Bruflat contends the trial court improperly dismissed his petition for writ of mandamus because the trial court had subject matter jurisdiction of his action. Specifically, Bruflat asserts that the probate court has jurisdiction to hear his cause of action pursuant to TEX.PROB.CODE ANN. §§ 5(d), 5(e), 5A(c) (Vernon Supp.1992).

Sections 5(d) and 5(e) provide:

(d) A statutory probate court has concurrent jurisdiction with the district court in all actions by or against a person in the person's capacity as a personal representative.

(e) All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate.

TEX.PROB.CODE ANN. §§ 5(d), 5(e) (Vernon Supp.1992).

Sections 5A(b), 5A(c), and 5A(e) provide:

(b) In proceedings in the statutory probate courts and district courts, the phrase "appertaining to estates" and "incident to an estate" in this Code include the probate of wills, the issuance of letters testamentary and of administration, and the determination of heirship, and also include, but are not limited to, all claims by or against an estate, all actions for trial of title to land and for the enforcement of liens thereon, all actions for trial of the right of property, all actions to construe wills, the interpretation and administration of testamentary trusts and the applying of constructive trusts, and generally all matters relating to the settlement, partition, and distribution of estates of wards and deceased persons. All statutory probate courts may, in the exercise of their jurisdiction, notwithstanding any other provisions of this Code, hear all suits, actions, and applications filed against or on behalf of any guardianship, heirship proceeding, or decedent's estate, including estates administered by an independent executor.

(c) A statutory probate court has concurrent jurisdiction with the district court in all actions:

(1) by or against a person in the person's capacity as a personal representative.

....

(e) Subsections (c) and (d) apply whether or not the matter is appertaining to or incident to an estate.

TEX.PROB.CODE ANN. §§ 5A(b), 5A(c), 5A(e) (Vernon Supp.1992).

Rodeheaver does not assert that the probate court lacks authority to issue a writ of mandamus. Rodeheaver asserted and the trial court found that it did not have jurisdiction of Bruflat's petition to mandamus Rodeheaver to file a document in the real property records of Harris County. The issue on appeal is not whether the family agreement should have been filed by Rodeheaver. Rather, the issue is whether a statutory probate court has jurisdiction to order the Harris County Clerk to file a document in the real property records. Bruflat asserts that the probate court had jurisdiction to issue the writ of mandamus pursuant to the above-quoted probate sections.

Was The Issue Of Whether A Document Should Be Filed In The Real Property Records "Incident To Or Appertaining To An Estate?"

Bruflat contends that the trial court had jurisdiction to issue the writ because the matter before it was incident to or appertaining to John F. Mueller's estate. We disagree.

The statutory language, "incident to or appertaining to an estate" limits a probate court's jurisdiction to matters in which the controlling issue concerns matters relating to the settlement, partition, or distribution of an estate. Seay v. Hall, 677 S.W.2d 19, 22 (Tex.1984); Carlisle v. Bennett, 801 S.W.2d 589, 591 (Tex.App.--Corpus Christi 1990, no writ). The section 5A(b) language, "and generally all matters relating to the settlement, partition, and distribution of estates of wards and deceased persons," does not grant authority to the probate courts to hear matters other than those in which the controlling issue is the settlement, partition, or distribution of an estate. Seay, 677 S.W.2d at 23. For a probate court to obtain jurisdiction of a matter under section 5(e), the outcome of the controversy must be necessary to the resolution of the particular estate. Interfirst Bank--Houston v. Quintana Petroleum, Corp., 699 S.W.2d 864, 873 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.).

Here, the controlling issue does not concern matters relating to the settlement, partition, or distribution of John Mueller's estate. The controlling issue is whether the probate court should issue a writ...