Carroll v. Carroll, 13-93-061-CV

• Decision Date: 29 December 1994
• Docket Number: No. 13-93-061-CV,13-93-061-CV
• Citation: 893 S.W.2d 62
• Parties: Carl M. CARROLL, Jr., et al., Appellants, v. Vernon CARROLL, et al., Appellees.
• Court: Texas Court of Appeals

Page 62

893 S.W.2d 62

Carl M. CARROLL, Jr., et al., Appellants, v. Vernon CARROLL, et al., Appellees.

No. 13-93-061-CV.

Court of Appeals of Texas Corpus Christi.

Dec. 29, 1994.

George Washington, Jr., Houston, for appellants.

Marvin B. Peterson, Houston, James Carr, Hallettsville, for appellees.

Before KENNEDY, GILBERTO HINOJOSA and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

Appellees sued appellants in the 25th District Court of Lavaca County for declaratory judgment, trespass to try title, removal of cloud on title, cancellation of deed, writ of possession, damages and attorneys' fees. Appellees asked the district court to declare void certain orders issued by the County Court of Lavaca County ¹ approving and confirming the sale of real estate belonging to the estate of a deceased ward. Appellants responded with a plea to the jurisdiction, asserting that the district court lacked jurisdiction to hear this case while the deceased's estate remained pending in the county court. The district court denied appellants' plea to the jurisdiction and decreed that the county court's orders and guardian's deed conveying title were void and of no effect. By a single point of error, appellants contend that the district court lacked jurisdiction to consider this case. We affirm the trial court's judgment.

On August 20, 1960, Ed Davis and Ida Mae Carroll Davis executed a joint and mutual will reserving in it a life estate in the survivor of the two. Ed Davis died on April 1, 1965 and his will was admitted to probate on April 19, 1965, in cause number 5565 in the County Court of Lavaca County. Ida Mae Carroll Davis was appointed independent executrix of her husband's estate. According to the will, Norman Carroll, A.J. Carroll and Vernon Carroll were to receive title to the Davises' 59.7 acre farm, subject only to Ida Davis' life estate. The present appellees include Vernon Carroll, A.J. Carroll, and the heirs of Norman Carroll.

On July 2, 1965, at the age of 71 years, Ida Davis moved into the Yoakum Memorial Nursing Home in Yoakum, Texas. Her nephew, Dr. Carl M. Carroll, subsequently commenced guardianship proceedings against her in cause number 7105 in the County Court of Lavaca County. The county court declared Ida Davis to be non compos mentis and, by order dated August 29, 1978, appointed appellant, Dr. Carroll, as guardian of her person and estate. On January 10, 1979, Dr. Carroll filed an inventory, appraisement and list of claims in cause number 7105. Ida Davis resided at the nursing home in Yoakum, Texas until September 17, 1986, when she died at the age of 92 years.

On August 27, 1987, nine years after he was appointed guardian and almost one year after Ida Davis' death, Dr. Carroll filed an application (in the guardianship case) and requested permission to sell the 59.7 acre farm. In the application, Dr. Carroll alleged that the farm was worth $60,600.00. ² Dr. Carroll also submitted a claim from the Yoakum Memorial Nursing Home. Dr. Carroll alleged that the guardianship estate owed the nursing home $97,586.39. ³ On September 8, 1987, the county court granted Dr. Carroll's application and signed an order of sale. Dr. Carroll subsequently executed a deed conveying the 59.7 acre farm to Clarence Carroll, as trustee for the nursing home, in satisfaction of the purported debt to the home. On September 21, 1987, the county court entered a decree confirming the sale of the property by the guardian.

Appellees contend that Clarence Carroll is Dr. Carroll's brother and that Dr. Carroll is also an owner of the Yoakum Memorial Nursing Home. The record does not reflect that appellees objected to the sale or purchase of the property as provided by section 345 of the Probate Code. See TEX.PROB.CODE ANN. § 345 (Vernon 1980). ⁴

The record does not reflect the entry of a closing order or a verified account for final settlement of the guardianship case. See TEX.PROB.CODE ANN. § 405 (Vernon 1980) (amended 1993) (current version at TEX.PROB.CODE ANN. § 749 (Vernon Supp.1994)). ⁵ The record also does not reflect that anyone complained of Dr. Carroll's failure to file a final verified accounting in the guardianship case. See TEX.PROB.CODE ANN. § 404A (repealed 1993, now TEX.PROB.CODE ANN. § 746 (Vernon Supp.1994)); ⁶ § 406 (amended 1993) current version at TEX.PROB.CODE ANN. § 750 (Vernon Supp.1994) (court may remove estate from active docket on or after third anniversary of ward's death). ⁷

On December 31, 1987, Vernon Carroll filed an application in cause number 8155 in the County Court of Lavaca County to probate Ida Davis' will. On June 26, 1990, the county court admitted Ida Davis' will to probate and appointed Vernon Carroll as independent executor of her estate. ⁸ Appellants contend that no further action has occurred in cause number 8155 and that Ida Davis' will probate case remains open on the docket of the county court.

On August 19, 1991, Vernon Carroll and other claimed devisees and presumptive heirs under the Davis Will filed the present action in the 25th District Court of Lavaca County. Appellees alleged that pursuant to the will, they owned the 59.7 acre farm in fee simple and sued appellants for a declaratory judgment, trespass to try title, removal of cloud on title, cancellation of deed, damages and attorneys' fees. On November 25, 1992, the district court rendered judgment declaring the following to be void and of no effect:

1) the county court's order of sale,

2) the county court's decree confirming sale, and

3) Dr. Carroll's deed conveying the 59.7 acre farm to Clarence Carroll as trustee for the Yoakum Memorial Nursing Home.

The district court declared that fee simple title to the 59.7 acre farm passed to the devisees named in the will, awarded plaintiffs damages (rental value of the property) and attorneys' fees, and issued a writ of possession in favor of appellees.

By their sole point of error, appellants complain that the district court should have dismissed this case for want of jurisdiction. Appellants contend that Vernon Carroll's application for probate of Ida Davis' will (cause number 8155) and the guardianship proceeding (cause number 7105) were commenced in the county court prior to the initiation of appellees' action in the district court. Appellants also contend that, at the time of appellees' filing in district court and at judgment, both cause numbers 7105 and 8155 were still pending in the county court. Appellants further contend that appellees expressly admitted that the county court first acquired jurisdiction in the guardianship case and that the record contains no proof of any transfer to the district court in accordance with TEX.PROBATE CODE § 5(b) (amended 1993). ⁹

Will Probate Case

Appellants rely on the recent supreme court decision in Bailey v. Cherokee County Appraisal District, 862 S.W.2d 581 (Tex.1993), which held that a taxing authority's suit, which was filed in district court, constituted a claim against an estate and should have been filed in the probate court, where a dependent administration was pending. Bailey 862 S.W.2d at 585. Appellants also rely on Carlisle v. Bennett, 801 S.W.2d 589 (Tex.App.--Corpus Christi 1990, no writ) wherein we held that matters relating to settlement, partition or distribution of an estate are matters incident to an estate and are exclusively within the jurisdiction of the probate court.

Both Bailey and Carlisle involved actions which were brought during the time that the estate was actively pending in probate court. Bailey may be distinguished from this case since it involved a separate suit brought during the pendency of a dependant administration. The determinative issue in this case remains whether appellees' action brought in district court is barred where independent administration of the estate is purportedly still pending in county court.

The 25th District Court of Lavaca County and the County Court of Lavaca County have concurrent jurisdiction under TEX.PROBATE CODE § 5(b) and (e) (amended 1993). Either court may proceed to entertain and exercise jurisdiction in any matter incident to an estate, and the court in which the application for probate proceedings is first filed shall have and retain jurisdiction of the estate to the exclusion of the other court or courts. TEX.PROBATE CODE § 5A(a) (amended 1993) ¹⁰, TEX.PROB.CODE ANN. § 8(a) (Vernon 1980). However, the grant of jurisdiction to constitutional and statutory county courts to decide all matters incident to or appertaining to an estate of a decedent or ward is not exclusive, and neither §§ 5(d) nor 5A(a), providing such grant of jurisdiction, nor any other enactment of the legislature, have stripped the district court of jurisdiction granted that court by other provisions of the constitution and statutes. See Smith v. Smith, 694 S.W.2d 426 (Tex.App.--Tyler 1985, writ ref'd n.r.e.).

Under Texas law, as long as an estate remains in the hands of and under control of an independent executor, the probate court lacks jurisdiction to consider and approve claims against the estate. Klein v. United States, 539 F.2d 427, 432 (5th Cir.1976); TEX.PROB.CODE ANN. § 145(h) (Vernon 1980). ¹¹ See TEX.PROB.CODE ANN. § 146 (Vernon 1980). ¹² District courts, the courts of general jurisdiction, have jurisdiction over suits involving the validity of claims against the estate of a decedent which is being independently administered. Klein, 539 F.2d at 432; TEX. CONST. art. V, § 8. In the present case, suit was brought to establish title and the interests therein to certain real property. Where questions of title are involved, the district court is the more appropriate tribunal having exclusive jurisdiction to such an adjudication. TEX. CONST. art. V, § 8. The nature of appellees' cause of action as disclosed by their pleadings, which involve issues over which the probate court did not have jurisdiction, is such that the powers of the probate court...