In re John G. Kenedy Memorial Foundation

• Decision Date: 16 June 2004
• Docket Number: No. 13,13
• Citation: 159 S.W.3d 133
• Parties: In re the JOHN G. and Marie Stella KENEDY MEMORIAL FOUNDATION, et al., Relators.
• Court: Texas Court of Appeals

159 S.W.3d 133

In re the JOHN G. and Marie Stella KENEDY MEMORIAL FOUNDATION, et al., Relators.

No. 13-03-696-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

June 16, 2004.

Rehearing Overruled August 5, 2004.

Bruce Hawn, Richard L. Leshin, Welder, Leshin & Mahaffey, J.A. `Tony Canales', Canales & Simonson, P.C., Richard J. Hatch, Sr., Corpus Christi, Jacqueline M. Stroh, Thomas H. Crofts, Jr., Crofts & Callaway, San Antonio, J.G. Adami, Jr., Adami & Paisley, Alice, Stephen Jody Helman, Jeffrey T. Knebel, Osborne & Helman, Austin, Ray Chester, Thomas O. Barton, McGinnis, Lochridge & Kilgore, Austin, for Relator,

J. Bonner Dorsey, Sam Westergren, Corpus Christi, Mark A. Schwartz, Dubois, Bryant, Campbell, Austin, for Real Parties In Interest.

John W. Vinson, Consumer Protection Division, Charitable Trusts Section, Austin, for State.

Shannon H. Ratliff, McGinnis, Lochridge & Kilgore, John Matthew Sjoberg, Austin, Daniel McNeel Lane, Jr., David R. Nelson, Akin, Gump, Strauss, Hauer & Feld, San Antonio, for Other Interested Parties.

Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.

OPINION

Opinion by Chief Justice VALDEZ.

In this original proceeding, relators¹ ask us to determine whether a statutory probate court judge has authority to transfer to his courtbills of review pending in other courts pursuant to section 5B of the probate code.SeeTex. Prob.Code Ann. § 5B.²Real party in interest, Ann Fernandez, filed four bills of review in the County Court of Kenedy County seeking to reopen the estates of John G. Kenedy, Jr., his wife Elena Suess Kenedy, and his sisterSarita Kenedy East.She also filed bills of review in other courts challenging several judgments pertaining to the disposition of the three estates.The respondent, the Honorable Guy Herman, a statutory probate court judge assigned to the County Court of Kenedy County, transferred to his court three of Fernandez's bills of review filed in other courts and consolidated these with bills of review pending in his court pursuant to section 5B of the probate code.In a plea to the jurisdiction, a motion to dismiss for lack of jurisdiction, and a response to the motion to transfer, relators unsuccessfully challenged the statutory probate court judge's authority to transfer the three bills of review.

In this proceeding, relators contend the statutory probate court judge had no authority to transfer the bills of review from other courts to his court because (1) well-settled law provides that only the court that issued the judgment has jurisdiction to hear the bill of review attacking that judgment; and (2) in the alternative, section 5B of the probate code did not provide the statutory probate court judge with authority to transfer the bills of review to his court because no estate was pending before him at the time of the transfer.Because we conclude the statutory probate court judge had no statutory authority to order the transfers, we conditionally grant the writ and order the statutory probate court judge to vacate his orders transferring the three bills of review to his court.

I.FACTUAL AND PROCEDURAL HISTORY

Fernandez alleges she is Mr. Kenedy's biological daughter and only learned this fact in the past few years.Through bills of review, she seeks to reopen the administration of Mr. Kenedy's estate, Mrs. Kenedy's estate, and Ms. East's estate, and other actions described below and related to the disposition of these estates.

A. John G. Kenedy, Jr.'s Estate and Related Action

Mr. Kenedy died in 1948.³His will was admitted to probate in the County Court of Kenedy County in Estate of John G. Kenedy, Jr., cause number 189.In his will, Mr. Kenedy bequeathed to his wife his property, "both personal and mixed."

Humble Oil & Refining Company held oil, gas, and mineral leases to real property belonging to Mr. Kenedy.In 1949, it filed suit in the District Court of Kenedy County in Humble Oil & Refining Company v. East, cause number 35, seeking a determination of whether Mr. Kenedy's will disposed of his real property.The final judgment established that Mr. Kenedy's will disposed of all of his property, including his real property and real property interests.In 1952, the administration of Mr. Kenedy's estate in cause number 189 was completed.

B. Sarita Kenedy East's Estate and Related Actions

Ms. East died in 1961.A will dated 1960, which left a portion of her estate to The John G. and Marie Stella Kenedy Memorial Foundation (the Foundation), was admitted to probate in the County Court of Kenedy County in Estate of Sarita K. East, cause number 344.Several matters relating to the disposition of Ms. East's estate were litigated extensively in various cases.⁴

Among those causes of actions was a will contest filed in the County Court of Kenedy County in Trevino v. Turcotte, cause number 348.The county court set aside Ms. East's 1960 will and the order admitting it to probate.Proponents of the 1960 will filed appeals that were consolidated into cause number 101-209-D in the District Court of Nueces County.That court rendered a judgment that, among other things, found the 1960 will and a specified codicil to be Ms. East's last will and testament.Portions of the judgment were appealed and, ultimately, upheld.SeeTrevino v. Turcotte,564 S.W.2d 682, 690(Tex.1978).

In 1964, Arnold Garcia, an appointed temporary administrator of Ms. East's estate, filed suit in the District Court of Kenedy County in Garcia v. The John G. and Marie Stella Kenedy Memorial Foundation, cause number 85, to set aside inter vivos gifts Ms. East made to the Foundation.Ultimately, the district court dismissed this action.

The Attorney General filed suit seeking a final accounting of Ms. East's estate in the District Court of Kenedy County in Mattox v. Alice National Bank, cause number 158.In 1986, the district court concluded a final accounting should be made and transferred the case to the County Court of Kenedy County for proceedings consistent with the judgment.Accordingly, the county court issued an order closing Ms. East's estate in cause number 344 in 1987.

C.Mrs. Kenedy's Estate

Mrs. Kenedy died in 1984, leaving a portion of her estate to the John G. Kenedy, Jr. Charitable Trust (the Trust).Her will was admitted into probate in cause number 379 in the County Court of Kenedy County.The administration of her estate was completed in 1985.

D.The Underlying Actions

Beginning in October 2001, Fernandez filed numerous actions seeking to reopen most of the suits described above.In these bills of review, she alleges she is entitled to her intestate share of real property Mr. Kenedy did not dispose of in his will and that she is an heir of Ms. East.She contends she should have been a party in the suits pertaining to the three estates.She requests, among other things, an accounting and distribution from the Foundation and Trust as beneficiaries of the estates.

She filed the following bills of review in the County Court of Kenedy County:

1) Estate of John G. Kenedy, Jr., cause number 189;⁵

2) Estate of Sarita Kenedy East, cause number 344;

3) Estate of Elena Suess Kenedy, cause number 379; and

4) Estates of John G. Kenedy, Jr., Sarita Kenedy East, and Elena Suess Kenedy, cause number 395.

She filed bills of review in the District Court of Kenedy County in the following actions:

1) Humble Oil & Refining Co. v. East, cause number 35 (renumbered to 03-CV-050); and

2) Garcia v. The John G. & Marie Stella Memorial Foundation, cause number 85 (renumbered to 03-CV-051).

She filed a bill of review in the District Court of Nueces County in Trevino v. Turcotte, cause number 101-209-D, which was renumbered to 02-2959-D.She also filed a suit titled Fernandez v. Exxon Mobil Corporation, causenumber 02-2331-C in the District Court of Nueces County.

Because Kenedy County does not have a statutory probate court, the Foundation filed motions for the assignment of a statutory probate court judge in cause numbers 344 and 395 pursuant to section 5(b) of the probate code.SeeTex. Prob.Code Ann. § 5(b)(Vernon Supp.2004)(allowing county court to request assignment of statutory probate court judge).The Trust filed a similar motion in cause number 395.On June 10, 2002, the county court granted the motion.The Honorable Guy Herman, a statutory probate court judge, was subsequently appointed to preside over cause numbers 344 and 395 in the County Court of Kenedy County by order of the presiding judge of the statutory probate courts and pursuant to section 25.0022 of the government code.SeeTex. Gov't Code Ann. § 25.0022(h)(Vernon 2004).The order stated the assigned judge would hold all rights, powers, and privileges held by the regular judge of the court and the attendant jurisdiction of a statutory probate court.Seeid.§ 25.0022(i).

On November 5, 2002, the statutory probate court judge consolidated into cause number 395 the bill-of-review proceedings in cause numbers 189, 344, and 379, which were all then pending in the County Court of Kenedy County.On the Foundation's motion to transfer, he also ordered the suit in cause number 02-2331-C and bill of review in cause number 02-2959-D, both pending in Nueces County, be transferred to his court and consolidated with cause number 395.

In August 2003, the Foundation filed a motion to dismiss for lack of jurisdiction in cause number 395 contending, among other things, the statutory probate court judge was without jurisdiction to order the transfers.Fernandez then filed a motion to transfer requesting that the statutory probate court judge transfer the bill-of-review proceedings in 03-CV-050and03-CV-051, which were then pending in the District Court of Kenedy County, to the county court and consolidate them with cause number 395.The Trust filed a plea to the jurisdiction challenging the transfer of the bills of review from the other courts to the county court on the basis that only the...