Herring v. Welborn

• Decision Date: 12 July 2000
• Docket Number: No. 04-99-00473-CV,04-99-00473-CV
• Citation: 27 S.W.3d 132
• Parties: (Tex.App.-San Antonio 2000) Lemuel O. HERRING, Appellant v. Michael WELBORN, Donald Kubicek, Richard Corrigan, Robert Joseph, Murray Guaranty Title Co., Robert Hyatt, and Cynthia Hyatt, Appellees Delivered and Filed
• Court: Texas Court of Appeals

Page 132

27 S.W.3d 132 (Tex.App.-San Antonio 2000)

Lemuel O. HERRING, Appellant v. Michael WELBORN, Donald Kubicek, Richard Corrigan, Robert Joseph, Murray Guaranty Title Co., Robert Hyatt, and Cynthia Hyatt, Appellees

No. 04-99-00473-CV

For the Court of Appeals Fourth District of Texas

Delivered and Filed July 12, 2000

Rehearing Overruled August 4, 2000

From the 81st Judicial District Court, Wilson County, Texas Trial Court No. 99-04-0159-CVW Honorable Olin B. Strauss, Judge Presiding

[Copyrighted Material Omitted]

Sitting: Phil Hardberger, Chief Justice Alma L. Lopez, Justice Paul W. Green, Justice

OPINION

Opinion by: Phil Hardberger, Chief Justice

This appeal arises from an order of dismissal and award of sanctions by the 81st Judicial District Court in Wilson County. The underlying dispute, however, stems from a sale of land ordered by the San Patricio County Court at Law during the probate of Ethel Arnetta Herring's ("Ethel") estate. The land is located in Wilson County. One of the appellees, Michael Welborn, has filed a motion to sanction Lemuel and his counsel for filing a frivolous appeal.

We affirm the trial court's order of dismissal, but modify it to be without prejudice. We vacate the trial court's award of sanctions and deny Welborn's motion for appellate sanctions.

For Ease of Reference

Several individuals are mentioned throughout this opinion:

Plaintiff / Appellant, His Family, and His Counsel

                Lemuel O. Herring               Plaintiff / Appellant
                Ethel Arnetta Herring           Lemuel's Wife; Deceased
                Katina Brauchle                 Daughter of Lemuel & Ethel; Former Administratrix
                                                of Ethel's Estate 
                Jimmy Robert Keys               Ethel's Son; Lemuel's Stepson
                Paula S. Waddle                 Lemuel's Attorney
                

Defendant / Appellee / Movant for Sanctions

                Michael Welborn                 Judge, San Patricio County Court at Law. This court is
                                                sitting in probate of Ethel's estate and ordered the
                                                sale of the land
                

Defendants / Appellees

                Donald Kubicek                  Successive Dependent Administrator of Ethel's Estate
                

                Robert & Cynthia Hyatt          Purchasers of the Land
                Robert Joseph                   The Hyatts' Attorney
                Richard Corrigan                The Receiver. The San Patricio court appointed Corrigan
                                                when Lemuel would not consummate the sale to the Hyatts
                Murray Guaranty Title Co.       Title Company and Escrow Agent
                

We refer to the San Patricio County Court at Law as the "San Patricio court" and the 81st Judicial District Court as the "trial court." Except for Ethel and Lemuel, we refer to people by their surnames for convenience and uniformity. We refer to the land in Wilson County as "the land."

This is the third appeal that springs from the administration of Ethel's estate. See In re Estate of Herring, 970 S.W.2d 583 (Tex. App.-Corpus Christi 1998, no pet.) (Herring I); see also In re Estate of Herring, 983 S.W.2d 61 (Tex. App.-Corpus Christi 1998, no pet.) (Herring II). In Herring I, Lemuel sued Keys in the San Patricio court to recover community property that he alleges Ethel fraudulently transferred to him. In Herring II, Lemuel attacked the San Patricio court's appointment of a receiver to carry out the court-ordered sale of the land.

Background

The land was the community property of Ethel and Lemuel Herring. Ethel died, survived by Lemuel, Brauchle, and Keys. Lemuel inherited an undivided interest in l/2 of the land; each child inherited an undivided interest in 1/4 of the land. Brauchle eventually quit-claimed her interest to Lemuel. The probate court later awarded Lemuel the interest held by Keys. The trial court made this award by way of constructive trust when Keys failed to appear at trial after Herring I was remanded to the San Patricio court.

During the probate of Ethel's estate, the Hyatts signed an earnest money contract with Brauchle, the dependent administrator of Ethel's estate, to purchase the land. As a dependent administration, the sale was subject to the approval of the San Patricio court. The following excerpt from Herring II provides a helpful summary of the facts (and the law the Thirteenth Court applied to those facts) after the Hyatts signed the contract to purchase the land:

When Ethel died and an [administratrix] was appointed . . . the . . . land . . . passed, along with her other assets, into the management and control of the administrator of her estate. During the administration of the . . . estate, the [San Patricio] court issued an order...authorizing the administrator...to sell [the] . . . land. . . . The [administratrix] of [her] estate [then] had the authority, by order of the [San Patricio] court, to convey the entire community interest in the property, including Lemuel's interest . . . to a third party. . . .

[W]hen a sale of real property is ordered and approved by the probate court, the [administratrix] has the power and authority to execute a deed transferring title to such property. . . . There is no additional requirement for the holder of a community interest in the property to join in the deed. . . .

Herring II, 983 S.W.2d at 63 (emphasis added). Lemuel refused to sign the deed, which would have allowed the transaction to close and Brauchle to pay off the debts of the community. The record is unclear as to the sequence of events, but the San Patricio court soon appointed Kubicek as successor dependent administrator of Ethel's estate. According to the Thirteenth Court:

[T]he [San Patricio] court later issued an order compelling Lemuel to sign the deed . . . . Lemuel . . . refused and . . . the present successor administrator, Donald Kubicek, sought appointment of a receiver for the sole purpose of completing the sale and conveyance of the property. The . . . court heard the motion and appointed a receiver to sell the property and distribute the proceeds, finding that the estate has present debts [that] could only be satisfied out of the proceeds of a sale of the property, and that the estate presently has a sales contract for the property which [Lemuel] refuses to convey. From that order, Lemuel brings the present interlocutory appeal, . . . challenging the right of the trial court to appoint a receiver.

Id. at 63-64. The court concluded that the [San Patricio] court had "discretion to appoint a receiver to carry out the order of sale." Id. at 65. The estate eventually conveyed the land to the Hyatts.

Unsatisfied with the outcome in the San Patricio and appeals courts, Lemuel brought suit in Wilson County, where the land is located, against Welborn, Kubicek, Corrigan, Joseph, the Hyatts, and Murray Guaranty. In addition to several causes of action, Lemuel sought a temporary restraining order and a temporary injunction to enjoin the defendants from further "encumbering, subdividing, deeding, transferring or otherwise affecting the property." The trial court granted the temporary restraining order.

The defendants filed separate pleas to the trial court's jurisdiction. In addition to questioning the court's jurisdiction, Welborn filed a motion for sanctions. At the hearing, the trial court granted the defendants' pleas to the jurisdiction. The court then awarded sanctions to the defendants on the basis of the amount they expended in attorney's fees.

On appeal, Lemuel raises four issues. He asserts that the trial court erred by: 1) dismissing the case for a lack of jurisdiction, 2) awarding sanctions, 3) denying the application for temporary injunction, and 4) dismissing the suit with prejudice.

Discussion

1. Jurisdiction of San Patricio Statutory County Court at Law (Issue One)

In his first issue, Lemuel asserts that jurisdiction over this case lies with the trial court, not the San Patricio court. According to Lemuel, the trial court erred in dismissing the suit.

a. Standard of Review

Whether the trial court had subject matter jurisdiction "is a question of law subject to de novo review." See W. Wendell Hall, Standards of Review in Texas, 29 St. Mary's L.J. 351, 373 (1998). We review the trial court's order of dismissal by construing the pleadings in Lemuel's favor and looking to his intent. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

b. Construing Lemuel's Pleadings

Lemuel alleges that the San Patricio court followed improper procedures in selling the land. In his original petition, Lemuel asserts various causes of action to restore his ownership interest and obtain redress for the probate court's allegedly improper court-ordered receivership and sale:

declaratory judgment (Lemuel asked the trial court to void the conveyance to the Hyatts and quiet title in favor of Lemuel);

cancellation of deed (while the sale was pending, Lemuel recorded a lis pendens¹ in Wilson County; he asserts that the transfer was improper, among other reasons, because of the lis pendens, inadequate consideration, and inadequate notice prior to the probate court's order of sale);

conversion (he seeks both legal title and possession of the land); and

recovery of money paid (Joseph, Kubicek, and Murray Title received funds when the transaction closed).

In addition, Lemuel seeks punitive damages because the transfer to the Hyatts was allegedly far below market value.

Lemuel also seeks injunctive relief against the defendants that would bar any further action on the land. Lemuel states in his petition that he does not want the land sold pending the outcome of Herring I lawsuit, which dealt with fraud on the community by Ethel and her son, Keys. The Herring II court disposed of this issue: "The fact that Herring has made allegations of fraud that might affect the composition of the estate, or the amount Herring may ultimately receive for his community interest, does not deprive the [probate] court of its ability to carry out the prior order of sale before the...