King v. Deutsche Bank Nat'l Trust Co.

• Decision Date: 18 August 2015
• Docket Number: NO. 01–13–01091–CV,01–13–01091–CV
• Citation: 472 S.W.3d 848
• Parties: Judith King, individually and as Independent Executor of the Estate of Kenneth King, Appellants v. Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the Owners of Accredited Mortgage Loan Trust 2004–4 Asset Backed Notes, by its Attorney–In–Fact and Servicer–In–Fact, Select Portfolio Servicing, Inc., Appellee
• Court: Texas Court of Appeals

472 S.W.3d 848

Judith King, individually and as Independent Executor of the Estate of Kenneth King, Appellants

v.Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the Owners of Accredited Mortgage Loan Trust 2004–4 Asset Backed Notes, by its Attorney–In–Fact and Servicer–In–Fact, Select Portfolio Servicing, Inc., Appellee

NO. 01–13–01091–CV

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

Opinion issued August 18, 2015

Michael S. O'Connor, Houston, TX, for appelant.

Michael D. Conner, Michael F. Hord, Hirsch & Westheimer, P.C., Houston, TX, for appellee.

Panel consists of Justices Jennings, Higley, and Huddle.

OPINION

Rebeca Huddle, Justice

This appeal arises from a dispute between Judith King, individually and as executor of the estate of Kenneth King, and Deutsche Bank National Trust Company regarding foreclosure of a home equity lien on the Kings' property. King sued Deutsche Bank in the district court, contesting its right to foreclose, and Deutsche Bank counterclaimed for foreclosure. Both parties filed summary-judgment motions, and the trial court denied King's and granted Deutsche Bank's. On appeal, King contends that the trial court lacked jurisdiction over Deutsche Bank's counterclaim and therefore the summary judgment order is void. We agree, vacate the judgment of the trial court, and render judgment dismissing the case for want of subject-matter jurisdiction.

Background

In June 2012, Judith King, individually and as executor of the estate of Kenneth King, sued Deutsche Bank in the district court, contesting Deutsche Bank's application for foreclosure in an earlier-filed case in the same court. In her petition, King asserted that she had filed a plea in abatement in that earlier case and requested that the foreclosure application be transferred to Harris County Probate Court No. 3. Deutsche Bank responded to the petition and counterclaimed for foreclosure against King.

A year later, Deutsche Bank moved for summary judgment on King's claims and for summary judgment on its affirmative claim for foreclosure. It argued that it was entitled to foreclosure, that King's petition did not state an affirmative claim against it, and that King had no evidence to support any claims she alleged. King did not file a response to the motion, and instead filed her own motion for summary judgment. She argued that Deutsche Bank was not properly appointed as a substitute trustee in the deed of trust, and therefore any foreclosure sale was void. She did not raise the issue of jurisdiction.

The trial court denied King's motion, granted Deutsche Bank's motion, rendered judgment in Deutsche Bank's favor on its foreclosure claim, and rendered judgment that King take nothing.

Discussion

In her first and second issues, King contends that the trial court lacked subject-matter jurisdiction over the case because Harris County Probate Court No. 3 had (1) dominant jurisdiction and (2) exclusive jurisdiction over Deutsche Bank's counterclaim. In her third issue, she argues that because the trial court lacked subject-matter jurisdiction, its judgment is void.

In response, Deutsche Bank argues that King has not proved the existence of a statutory probate court proceeding in Harris County Probate Court No. 3. Deutsche Bank also argues that even if such a proceeding exists, the statutory probate court does not have exclusive jurisdiction over its counterclaim, and to the extent that the probate court has dominant jurisdiction, King waived her complaint by failing to file a plea in abatement. Finally, Deutsche Bank argues that King has waived her jurisdictional arguments by raising them for the first time on appeal and that King should be estopped from challenging jurisdiction because she chose to file her suit against Deutsche Bank in the district court.

A. Standard of Review and Law on Jurisdiction

Whether a trial court has subject-matter jurisdiction is a question of law that we review de novo. Tex. Natural Res. Conservation Comm'n v. IT – Davy, 74 S.W.3d 849, 855 (Tex.2002). "Subject-matter jurisdiction is ‘essential to a court's power to decide a case.’ " City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex.2013) (per curiam) (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex.2000) ). Subject-matter jurisdiction is never presumed, and cannot be waived or conferred by consent, waiver, estoppel, or agreement. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.2000).

"Without jurisdiction the court cannot proceed at all in any cause; it may not assume jurisdiction for the purpose of deciding the merits of the case." Fin. Comm'n of Tex. v. Norwood, 418 S.W.3d 566, 578 (Tex.2013) (quoting Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431, 127 S.Ct. 1184, 1191, 167 L.Ed.2d 15 (2007) ). "The failure of a jurisdictional requirement deprives the court of the power to act (other than to determine that it has no jurisdiction), and ever to have acted, as a matter of law." City of DeSoto v. White, 288 S.W.3d 389, 393 (Tex.2009) (quoting Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex.2004) ). Thus, "[a] judgment is void if rendered by a court without subject-matter jurisdiction." In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 309 (Tex.2010) (orig. proceeding).

"[S]ubject-matter jurisdiction [may] ‘be raised for the first time on appeal by the parties or by the court.’ " Id. at 306 (quoting Loutzenhiser, 140 S.W.3d at 358 ). Indeed, "a court is obliged to ascertain that subject-matter jurisdiction exists regardless of whether the parties questioned it." Id. (emphasis in original); City of Allen v. Pub. Util. Comm'n of Tex., 161 S.W.3d 195, 199 (Tex.App.–Austin 2005, no pet.) ("[T]he question of jurisdiction is fundamental and can be raised at any time in the trial of a case or on appeal.").

" ‘[W]hen one court has ... exclusive jurisdiction over a matter, any order or judgment issued by another court pertaining to the same matter is void.’ " In re CC & M Garza Ranches Ltd. P'ship, 409 S.W.3d 106, 109 (Tex.App.–Houston [1st Dist.] 2013, orig. proceeding) (quoting Celestine v. Dep't of Family & Protective Servs., 321 S.W.3d 222, 230 (Tex.App.–Houston [1st Dist.] 2010, no pet.) ). However, when the jurisdiction of two courts is concurrent, "the issue is one of dominant jurisdiction." In re Puig, 351 S.W.3d 301, 305 (Tex.2011). As a general rule, when cases involving the same subject matter and same parties are brought in different courts, the court with the first-filed case has dominant jurisdiction, and the other case should be abated. See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988) ; see also Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex.2001). To contest a court's lack of dominant jurisdiction requires the filing of a plea in abatement. See In re Puig, 351 S.W.3d at 306.

B. Analysis

Section 32.005(a) of the Estates Code provides:

In a county in which there is a statutory probate court, the statutory probate court has exclusive jurisdiction of all probate proceedings, regardless of whether contested or uncontested. A cause of action related to the probate proceeding must be brought in a statutory probate court unless the jurisdiction of the statutory probate court is concurrent with the jurisdiction of a district court as provided by Section 32.007 or with the jurisdiction of any other court.

TEX. EST. CODE ANN. § 32.005(a) (West 2014).¹ In a county in which there is a statutory probate court, a cause of action "related to [the] probate proceeding" includes, among other things, "an action brought against a personal representative in the representative's capacity as a personal representative" and "an action [to] enforce[ ] a lien against [estate property]." See TEX. EST. CODE ANN. § 31.002(a)(4), (5) (West 2014) (defining "matters related to a probate proceeding"). "[A] claim brought by a personal representative on behalf of an estate" is also a claim "related to [a] probate proceeding." See id. § 31.002(a)(3), (c)(1) (West 2014).

Section 32.007 provides that a statutory probate court has concurrent jurisdiction with a district court over several types of actions:

(1) a personal injury, survival, or wrongful death action by or against a person in the person's capacity as a personal representative;

(2) an action by or against a trustee;

(3) an action involving an inter vivos trust, testamentary trust, or charitable trust, including a charitable trust as defined by Section 123.001, Property Code ;

(4) an action involving a personal representative of an estate in which each other party aligned with the personal representative is not an interested person in that estate;

(5) an action against an agent or former agent under a power of attorney arising out of the agent's performance of the duties of an agent; and

(6) an action to determine the validity of a power of attorney or to determine an agent's rights, powers, or duties under a power of attorney.

Id. § 32.007 (West 2014).

1. Did King waive her jurisdictional arguments or is she estopped from raising them?

Before we address King's contention that the trial court lacked jurisdiction to enter summary judgment in favor of Deutsche Bank, we address two threshold matters raised by Deutsche Bank.

First, Deutsche Bank argues that King has waived her jurisdictional arguments by failing to file a plea in abatement or otherwise adduce evidence in the trial court that a probate proceeding exists. Section 32.005(a) requires the existence of a probate proceeding in order for a probate court to have jurisdiction over related actions. See TEX. EST. CODE ANN. § 32.005(a). Deutsche Bank argues that there is no record evidence supporting King's claim that a probate proceeding exists in Harris County Probate Court No. 3, and therefore we cannot consider whether that court has exclusive jurisdiction over its counterclaim.

Deutsche Bank identified one of its counter-defendants as "Judith King, as Independent Executor of the Estate of Kenneth King." See...