Parr v. White

• Decision Date: 29 October 1976
• Docket Number: No. 1036,1036
• Citation: 543 S.W.2d 440
• Parties: Archer PARR et al., Appellants, v. Bonnie M. WHITE, Administratrix, et al., Appellees.
• Court: Texas Court of Appeals

Page 440

543 S.W.2d 440

Archer PARR et al., Appellants, v. Bonnie M. WHITE, Administratrix, et al., Appellees.

No. 1036.

Court of Civil Appeals of Texas,

Corpus Christi.

Oct. 29, 1976.

Rehearing Denied Nov. 24, 1976.

Oscar Spitz, Marshall Boykin, III, Corpus Christi, for appellants.

A. J. Pope, III, Corpus Christi, Homer E. Dean, Jr., Alice, David M. Coover, Asst. County Atty., Corpus Christi, Myron M. Sheinfeld, Houston, for appellees.

OPINION

NYE, Chief Justice.

This case is an appeal from the judgment of the trial court dismissing Archer Parr's (plaintiff's) various causes of action and J & J Operating Company's cross-actions and interpleader action for lack of jurisdiction. From this judgment, Archer Parr and J & J Operating Company have perfected their appeal to this Court.

On December 19, 1974, Archer Parr, in his capacity as community administrator or alternatively, in his capacity as surviving partner of the marital partnership of himself and his deceased spouse, Jody Martin Parr, filed suit in the trial court against six separate defendants alleging separate causes of action against each defendant for conversion or interference with his alleged special community property, as follows:

First: appellant claimed a cause of action against J. Craig Cowgill for failure to turn over to him certain real and personal property, being held by Cowgill in his capacity as Receiver in bankruptcy. See opinion in Cause Number 1072, styled J. Craig Cowgill, Receiver, Alamo Lumber Company, and Archer Parr v. Bonnie M . White, Individually and as Administratrix of the Estate of Jody Martin Parr, deceased. 543 S.W.2d 437 (Tex.Civ.App.--Corpus Christi 1976) handed down this day.

Second: appellant asserted a cause of action against defendant Bonnie White for her action in filing an inventory and appraisement in the Estate of Jody Parr which he says constitutes a cloud upon the title to certain real property alleged to be the special community property of Archer Parr appellant. See Cause Number 1104, styled Archer Parr v. Bonnie M. White. 543 S.W.2d 445 (Tex.Civ.App.--Corpus Christi 1976) handed down this day.

Third: appellants asserted a cause of action against Joe White alleging that White held certain personal property which he states constituted special community property belonging to appellant Archer Parr.

Fourth: appellant asserted a cause of action against Mark White alleging he held an automobile which constituted special community property of Archer Parr.

Fifth: appellant alleged a cause of action against Judge Margarito Garza alleging that an order by Judge Garza staying a previous order appointing appellant community administrator was void for lack of jurisdiction and asked the trial court to void the stay order and remove the cloud cast by said stay order on the title to the special community property of the appellant.

Sixth: appellant claimed a cause of action against J & J Operating Company alleging that said company had converted and refused to repay certain oil and gas royalties to which appellant was entitled by virtue of their classification as his special community property.

Appellant J & J Operating Company filed a cross-action against Bonnie White, Individually and as Administratrix on an indemnity agreement whereby Bonnie White agreed to indemnify J & J Operating Company for any loss, damage or expense incurred for wrongful payment of the oil and gas royalties from the real property in question. J & J Operating Company also sought by cross-action and interpleader to plead all funds then in its possession into the registry of the court for a determination of the ownership of these funds.

On June 16, 1975, appellee Bonnie White filed a motion to dismiss the suit for lack of jurisdiction. As grounds for dismissal, the appellee asserted that the Nueces County Probate Court where an administration of the Estate of Jody Parr was then pending had exclusive jurisdiction over the matters raised by appellants. On July 14, 1975, the trial court dismissed with prejudice all of the appellants' causes of action as to all defendants and the cross-actions for want of jurisdiction. On July 17, 1975, the trial court signed a second order of dismissal which again appears to have dismissed all causes of action, including the interpleader action, against all defendants and the cross-actions for lack of jurisdiction.

Before discussing the appellant's points of error, it is appropriate to define and explain the significance of special community property, community administrator and surviving partner. Section 5.22 of the Texas Family Code defines special community property as that property that the husband or wife would have owned if single. Such property includes personal earnings, revenue from separate property, recoveries for personal injuries and increase and mutations of and revenue from special community property. Section 161 of the Texas Probate Code provides for a community administration whenever an interest in community property passes to someone other than the surviving spouse if the deceased failed to name an executor in the Will or the named executor fails to qualify or the deceased spouse dies intestate. If no community administrator has qualified, the surviving spouse, as surviving partner of the marital partnership, remains entitled under § 177(b) of the Probate Code to retain possession and control of all his or her special community property.

The appellant's major point of error is that the trial court erred in dismissing the cause for want of jurisdiction. The controlling question presented by these points of error is whether the district court had jurisdiction to hear this cause of action under Art. 5, § 8, of the Constitution or the statutory probate court had exclusive jurisdiction over this action under Art. 5, § 8, of the Constitution and § 5 of the Texas Probate Code. As in Cause Number 1072, styled 'J. Craig Cowgill, Receiver, Alamo Lumber Company, Archer Parr v. Bonnie M. White, Individually and as Administratrix of the Estate of Jody Martin Parr, Deceased', supra, which was handed down this day, the basic question for our decision is whether or not these actions and cross-actions brought by the appellants were 'incident to' the ultimate settlement, partition and distribution of the Estate of Jody Parr.

In order to determine whether each of the separate causes of action (including cross-actions) brought by the appellants were incident to the Estate of Jody Parr, we must look to each action to determine its true nature. In all of his alleged causes of action except for the action against Judge Garza, the appellant Archer Parr is seeking to either recover possession of, clear title to, or collect damages for the conversion of property he alleges to be his special community property. The first question any court presented with appellant Archer Parr's claims would have to decide is whether the property in question was the special community property of the appellant. Since an administration of the Estate of Archer Parr's deceased wife is also pending, the question of whether the property in question is community in nature is vital to the partition of the Estate. Under these circumstances, the actions raised by the appellant in reference to his alleged special community property were...