Pullen v. Swanson

• Citation: 667 S.W.2d 359
• Decision Date: 05 April 1984
• Docket Number: No. C14-82-853CV,C14-82-853CV
• Parties: Gretchen S. PULLEN, Appellant, v. Jeanelle SWANSON, Executrix of the Estate of J.F. Swanson, Appellee. (14th Dist.)
• Court: Court of Appeals of Texas

Page 359

667 S.W.2d 359

Gretchen S. PULLEN, Appellant, v. Jeanelle SWANSON, Executrix of the Estate of J.F. Swanson, Appellee.

No. C14-82-853CV.

Court of Appeals of Texas Houston (14th Dist.).

April 5, 1984.

Eugene B. Wilshire, Jr., Bonham, Carrington & Fox, Houston, for appellant.

Halla, & Gardner, P.C., Jeffery B. Kaiser, Houston, for appellee.

Before PAUL PRESSLER, ROBERTSON and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

This appeal involves the central question as to whether a statutory probate court has exclusive jurisdiction over a suit filed in district court to collect on a promissory note against a pending estate. It also involves the related question as to whether a dismissal motion challenging the district court's jurisdiction over the suit was timely filed. Appellant contends that the District Court had original jurisdiction over the suit, and therefore, it erred in granting appellee's Motion to Abate/dismiss. Appellant alternatively alleges that the motion to dismiss was untimely filed and, therefore, waived. We find to the contrary on both points and affirm the judgment of the trial court.

Appellant, Gretchen S. Pullen, filed suit on July 30, 1980 in the 157th District Court of Harris County to collect on a series of promissory notes executed in 1970 by the deceased, J.F. Swanson. J.F. Swanson died on October 16, 1975 and his will was admitted to probate in Harris County Probate Court Number Two on November 4, 1975. Appellee, Jeanelle Swanson, as executrix of the estate of J.F. Swanson, was named as defendant in that suit. On October 4, 1982, appellee filed in the district court a motion entitled "Motion to Dismiss and/or Alternatively Plea in Abatement." The motion to dismiss/plea in abatement was based on the argument that probate proceedings had already been instituted in the statutory probate court, and therefore that court had exclusive subject matter jurisdiction over appellant's lawsuit. The district court granted the motion, ordered appellant's pleadings stricken and abated the action.

Appellant argues in her first point that the trial court erred in granting appellee's motion to dismiss and striking appellant's pleadings because the district court under the constitution and statutory law has original jurisdiction over the subject matter of this litigation. We disagree.

In 1973, the Texas Constitution was amended to grant the Legislature the power "to increase, diminish or eliminate the jurisdiction of either the district court or the county court in probate matters, and in cases of any such change of jurisdiction, the legislature shall also conform the jurisdiction of the other courts to such change." TEX. CONST. art. V, § 8. Pursuant to that authority, in 1973, the Legislature amended section five of the Probate Code governing the jurisdiction of courts with regard to probate matters. Then in 1979, the Legislature adopted § 5A and amended § 5 of the Probate Code. TEX.PROB.CODE ANN. § 5(c) and (d) (Vernon 1980) now provide in pertinent part:

(c) In those counties where there is a statutory probate court, county court at law, or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding probate, administrations guardianships, and mental illness matters shall be filed in and heard in such courts and the constitutional county court, rather than in the district courts, unless otherwise provided by the legislature, and the judges of such courts may hear any such matters sitting for the judge of any of such courts ...

(d) All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate ... (emphasis added).

Appellant argues that although § 5(c) provides that all probate related matters shall be filed in and heard by the statutory probate court, this action against an executrix is an example of a situation in which the legislative has "otherwise provided" and the district court was the proper court to hear this action. Appellant also argues that this action is not "incident to an estate."

Appellant cites § 5(a) of the Probate Code for the proposition that the district court has the sole and exclusive authority to hear actions involving executors. That section provides: "The district court shall have original control and jurisdiction over executors, administrators, guardians and wards under such regulations as may be prescribed by law." Tex.Prob.Code § 5(a) (Vernon 1980). The Texas Legislature, acting under the authority provided by the 1973 Amendment to article V. § 8 of the Texas Constitution, has "prescribed by law" changes in the Probate Code that have considerably diminished the jurisdiction of the district court in probate related matters.

Particularly relevant here is TEX.PROB.CODE ANN. § 5A(b) which expressly provides that:

All statutory probate courts shall have the same powers over independent executors that are exercisable by the district courts. In situations where the jurisdiction of a statutory probate court is concurrent with that of a district court, any cause of action appertaining to estates or incident to an estate shall be brought in a statutory probate court rather than in the district court.

Appellant contends that the jurisdiction of a statutory probate court is not concurrent with that of a district court and therefore the last sentence of § 5A(b) does not apply in this case.

The Texas Constitution, however, clearly states that the district court and county courts have concurrent jurisdiction in probate matters. TEX. CONST. art. V, § 8. As previously noted, the legislature, by constitutional amendment, has the power to modify jurisdiction in probate matters. It exercised this power when it created Probate Court No. 2 of Harris County. By statute the legislature expressly provided that this court's jurisdiction was concurrent with the county court. TEX.REV.CIV.STAT.ANN. art. 1970-110a.2 § 3 (Vernon Supp.1982-1983). It then logically follows that if the district courts and county courts have concurrent jurisdiction in probate matters and the jurisdiction of Statutory Probate Court No. 2 of Harris County is the same as the county court, then the district court and statutory probate court likewise have concurrent jurisdiction. Having laid down this qualifying requirement of concurrent probate jurisdiction between a statutory probate court and district court, the legislature then severely limited that jurisdiction of the district court (and expanded it as to statutory probate courts), by the remaining language in § 5A(b) which requires that "any cause of action appertaining to estates or incident to an estate shall be brought in a statutory probate court rather than in the district court (emphasis added)."

Appellant contends, however, that this suit against the executrix to collect on the promissory notes from the assets of the estate, is not a suit appertaining to or incident to an estate. We disagree. Probate Code § 5A(b) plainly states that in proceedings in the statutory probate courts and district courts, the phrases "appertaining to estates" and "incident to an estate" includes "all claims by or against an estate ", "all actions for trial of the right of property", and "generally all matters relating to the settlement, partition, and distribution of estates of wards and deceased persons."

The Supreme Court has found that the determination of a decedent's right to probate assets necessarily falls within the scope of being an action "incident to an estate." English v. Cobb, 593 S.W.2d 674, 676 (Tex.1979). An action is "incident to an estate" when the outcome will have a direct bearing on the assimilation, collection, and distribution of the decedent's estate. English v. Cobb, supra; Lucik v. Taylor, 596 S.W.2d 514 (Tex.1980). This court has previously stated that a statutory probate court has subject matter jurisdiction to hear a suit brought by an administrator to collect on a note owed to the deceased. Rosemont Enterprises Inc., v. Lummis, 596 S.W.2d 916 (Tex.Civ.App.--Houston [14th Dist.] 1980, no writ). The statutory probate court also has jurisdiction to enter an injunction to prevent a lienholder from foreclosing on property securing a promissory note, when the property could be assets of an estate. Onoray Davis Trucking Company, Inc. v. Lewis, 635 S.W.2d 622 (Tex.App.--Houston [14th Dist.] 1982, writ dismissed). This present action, seeking to collect from an executrix on a series of promissory notes owed by the deceased, would necessarily involve the assets of the estate and would be "incident to the estate" under both Probate Code § 5A(b) and the case law.

The Court of Appeals in Fort Worth, on the facts presented, has found that once a will is filed for probate, the statutory probate court acquires exclusive jurisdiction over matters incident to the estate and a subsequent action filed in the district court incident to the estate is susceptible to a motion to dismiss. Boman v. Howell, 618 S.W.2d 913 (Tex.Civ.App.--Fort Worth 1981, no writ). See Eisenhauer v. Williams, 537 S.W.2d 336 (Tex.Civ.App.--San Antonio 1976, no writ). Because the District Court and Statutory Probate Court No. 2 of Harris County have concurrent jurisdiction in probate matters and this is a matter that is "incident to an estate", § 5A(b) requires that the cause of action be brought and heard in the statutory probate court rather than the district court.

We disagree with the Boman opinion insofar as it implies that a statutory probate court has exclusive jurisdiction over all matters "incident to an estate" regardless of whether an estate proceeding is already pending in the statutory probate court. As defined by the case law and § 5A(b), the term "incident to an estate" includes a great number of causes of action that have not traditionally been considered as probate matters. The reason for the change in probate jurisdiction is to allow probate courts to...