State v. Fernandez

• Decision Date: 16 June 2004
• Docket Number: No. 13,13
• Citation: 159 S.W.3d 678
• Parties: The STATE of Texas, Appellant, v. Ann M. FERNANDEZ, Appellee.
• Court: Texas Court of Appeals

159 S.W.3d 678

The STATE of Texas, Appellant, v. Ann M. FERNANDEZ, Appellee.

No. 13-03-546-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

June 16, 2004.

John W. Vinson, Austin, for state.

Sam Westergren, J. Bonner Dorsey, Corpus Christi, Mark A. Schwartz, Dubois, Bryant, Campbell, Austin, for appellant.

Elizabeth A. Townsend, Jackson, Sjoberg, McCarthy, Shannon H. Ratliff, Mcginnis, Lochridge & Kilgore, John Matthew Sjoberg, Austin, for Intervenor Exxon Mobil Corporation and Exxon Mobile Oil Corporation.

Thomas O. Barton, Ray Chester, Mcginnis, Lochridge & Kilgore, Austin, for Intervenor Kennedy Memorial Foundation.

Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.

OPINION

Opinion by Chief Justice VALDEZ.

Appellee, 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 sister Sarita Kenedy East. She also filed bills of review in other courts challenging several judgments pertaining to the disposition of the three estates. The statutory probate court judge assigned to the County Court of Kenedy County transferred to his court three of appellee'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. See Tex. Prob.Code Ann. § 5B.¹ The Attorney General unsuccessfully challenged the statutory probate court judge's authority to order the transfers by joining in a plea to the jurisdiction and a motion to dismiss for lack of jurisdiction.

On appeal, appellant, the State of Texas, contends 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 the county court because no estate was pending in that court at the time of the transfer. Because we conclude we have no jurisdiction in this case, we dismiss this appeal.

I. FACTUAL AND PROCEDURAL HISTORY²

Mr. Kenedy, Ms. East, and Mrs. Kenedy died in 1948, 1961, and 1984, respectively. Mr. Kenedy's property was distributed to Mrs. Kenedy upon his death. A portion of Mrs. Kenedy's estate was distributed to the John G. Kenedy, Jr., Charitable Trust (the Trust). And a portion of Ms. East's estate was distributed to The John G. and Marie Stella Kenedy Memorial Foundation (the Foundation). The administration of Mr. Kenedy's and Mrs. Kenedy's estates was completed in 1952 and 1985, respectively. Ms. East's estate was closed by court order in 1987.

Appellee alleges she is Mr. Kenedy's biological daughter and only learned of this fact within the past few years. In seeking to reopen and obtain her share of Mr. Kenedy's, Mrs. Kenedy's, and Ms. East's estates, appellee filed bills of review in the County Court of Kenedy County in the following actions seeking an accounting and distribution from the Foundation and Trust as beneficiaries of the estates:

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

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.

The Attorney General filed a petition in intervention in cause numbers 344 and 395. See TEX. PROP.CODE ANN. § 123.002 (Vernon 1995).

Appellee also filed bills of review in, among others, the following three actions related to the disposition of Mr. Kenedy's and Ms. East's estates:

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

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

3) Trevino v. Turcotte, cause number 101-209-D (renumbered to 02-2959-D).

The bills of review pertaining to the first two cases were filed in the District Court of Kenedy County, the court that rendered the judgments under attack in those bills of review. The third bill of review was filed in the District Court of Nueces County, which rendered the judgment under attack in that action.

A statutory probate court judge was assigned to the County Court of Kenedy County in cause numbers 344 and 395. See Tex. Gov't Code Ann. § 25.0022(h) (Vernon 2004). The statutory probate court judge consolidated the four bills of review pending in the county court into cause number 395. He also ordered the bill of review filed in cause number 02-2959-D and pending in the District Court of Nueces County be transferred to his court and consolidated with cause number 395. See Tex. Prob.Code Ann. § 5B. 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 transfer of the bill of review from the District Court of Nueces County to the county court. The Attorney General joined in the motion.

Appellee filed a motion to transfer the bills of review in cause numbers 03-CV-050 and 03-CV-051 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 statutory probate court judge's authority to transfer the cases to his court. The Foundation filed a response to the motion to transfer also challenging the statutory probate court judge's authority to order the transfer. The Attorney General joined in the Trust's plea to the jurisdiction.

In two orders dated August 27, 2003, the statutory probate court judge denied the motion to dismiss and the plea to the jurisdiction and ordered the transfer of cause numbers 03-CV-050 and 03-CV-051 to his court. The statutory probate court judge issued an amended order on September 11, 2003. This appeal followed challenging in particular the statutory probate court judge's jurisdiction to transfer cause numbers 02-2959-D, 03-CV-050, and 03-CV-051 to his court.

II. APPELLATE JURISDICTION

We have jurisdiction to consider immediate appeals of interlocutory orders only where explicitly authorized by a statute. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998) (per curiam). Appellant states it brings this appeal pursuant to section 51.014(a)(8) of the civil practices and remedies code. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon Supp.2004). That section gives us authority to review an appeal from an interlocutory order that "grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001." Id.

A plea to the jurisdiction is a dilatory plea intended to defeat a cause of action without regard to the merits of the claims. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000); State of Tex. Parks & Wildlife Dep't v. Morris, 129 S.W.3d 804, 807 (Tex.App.-Corpus Christi 2004, no pet. h.). Sustaining a plea to the jurisdiction requires dismissal of the entire cause of action. Speer v. Stover, 685 S.W.2d 22, 23 (Tex.1985) (per curiam); Aledo Indep. Sch. Dist. v. Choctaw Props., L.L.C., 17 S.W.3d 260, 262 (Tex.App.-Waco 2000, no pet.).

At the time the motion to dismiss and the plea to the jurisdiction were filed by the Foundation and Trust and joined by the Attorney General, cause numbers 03-CV-050 and 03-CV-051 were not yet pending before the statutory probate court judge. In fact, the transfer of these two cases was not ordered until the day the judge ruled on the motion to dismiss and the plea to the jurisdiction. Thus, the Attorney General sought a remedy in those pleadings with respect to cause numbers 03-CV-050 and 03-CV-051 that the statutory probate court judge could not provide at the time. Notably, on appeal, appellant does not seek dismissal of the three bills of review. Rather, the crux of appellant's arguments is that the three transferred bills of review should have remained in the district courts in which each was originally filed. Appellant seeks a determination that the orders transferring these three actions were void. In effect, appellant is attempting to appeal from the orders transferring the three bills of review pursuant to section 5B of the probate code, not from rulings on pleas to the jurisdiction. Because we do not have statutory authority to consider an interlocutory appeal from a transfer order, we do not have jurisdiction to consider this appeal.

The dissent would have us treat this appeal as a petition for writ of mandamus and then deny it. Because we grant the relief requested by appellant in our disposition of a related petition for writ of mandamus, we find it unnecessary to take such a step here. See In re The John G. & Marie Stella Kenedy Mem'l Found., 159 S.W.3d 133 (Tex.App.-Corpus Christi, 2004, orig. proceeding).

III. CONCLUSION

We do not have jurisdiction to address appellant's challenges to the transfer orders in an interlocutory appeal. Accordingly, we dismiss this appeal for lack of jurisdiction and dismiss the pending motion to dismiss as moot.

Concurring and Dissenting Opinion by Justice CASTILLO.

ERRLINDA CASTILLO, Justice, concurring and dissenting.

I concur that we have no jurisdiction in this interlocutory appeal by the Attorney General of Texas. I, too, would dismiss the Attorney General's attempted appeal. However, I dissent because justice and judicial economy demand that we address the merits of the Attorney General's complaint. I would construe the Attorney General's brief as a petition for writ of mandamus and deny the requested relief on the merits.

The underlying litigation in this interlocutory appeal chronicles imperishable claims to the real property of South Texas rancher John G. Kenedy, Jr., his wife Elena Suess Kenedy, and his sister Sarita K....