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In re Perkins

Court of Appeals of Texas, Tenth District

December 27, 2017

IN RE CECILIA WILLIAMS PERKINS

         Original Proceeding

          MEMORANDUM OPINION

          TOM GRAY Chief Justice.

         Perkins and Cromer are sisters. Their parents have died. Cromer would have been the independent executor of their mother's estate but she lived out of state at the time and waived the right. Perkins was duly appointed, qualified, and assumed the duties and role of independent executor.

         Cromer became unhappy with how Perkins was administering the estate as independent executor. Cromer sought to remove Perkins as independent executor and have herself appointed. The trial court removed Perkins and appointed Cromer dependent executor.

         The fundamental dispute between the sisters is whether the estate's real property should be sold and the money divided or whether the property, which was left equally to them in undivided interest, should be distributed as undivided interest, or, as a third alternative, partitioned and the partitioned parts distributed. From what the parties have filed, the court handling the probate proceeding, the Walker County Court at Law, is in the process of conducting a partition proceeding and has ordered a sale of one tract of property.

         Cromer has instituted a separate proceeding in the District Court against Perkins. In the District Court suit, she seeks damages from Perkins. Cromer asserts that her sister, Perkins, breached her fiduciary duty to Cromer by refusing to sell the property and distribute Cromer's share of the money to her. And, the allegations continue, that as a result, Cromer has been damaged by having to take the actions in the probate proceeding to remove Perkins as independent executor and then to cause the property to be sold in the partition proceeding going forward in the probate court.

         Perkins was unsuccessful in convincing the District Court that it should abate the damages suit based upon the argument that the County Court at Law had original exclusive or original dominant jurisdiction. While the parties have used the terms somewhat interchangeable, they are not the same. If the District Court does not have any jurisdiction of the suit brought by Cromer, the County Court at Law does not have dominant jurisdiction, it has exclusive jurisdiction. With this summary of the background, we turn to the relevant provisions of the Estates Code.

         The Estates Code defines the "Scope of 'Probate Proceeding' for Purposes of Code" in section 31.001.[1] Tex. Estates Code Ann. § 31.001 (West 2014). But more important to our issue is section 31.002 which defines "Matters Related to Probate Proceeding" to include "an action against a personal representative or former personal representative arising out of the representative's performance of the duties of a personal representative." Id. § 31.002(a)(1). This is precisely the type suit that Cromer has brought against Perkins in District Court. This provision is made applicable to the Walker County Court at Law by section 31.002(b) which states that "[f]or purposes of this code, in a county in which there is no statutory probate court, but in which there is a county court at law exercising original probate jurisdiction, a matter related to a probate proceeding includes: (1) all matters and actions described in Subsection (a)." Id. (b)(1).

         We now turn to Chapter 32 of the Estates Code to determine the nature of the County Court at Law's jurisdiction, specifically whether it is exclusive or concurrent with the District Court. The general provision for jurisdiction of probate-proceedings and matters-related-to-probate-proceedings is section 32.001 which provides:

All probate proceedings must be filed and heard in a court exercising original probate jurisdiction. The court exercising original probate jurisdiction also has jurisdiction of all matters related to the probate proceeding as specified in Section 31.002 for that type of court.

Tex. Estates Code Ann. § 32.001(a) (West 2014).

         Because it is undisputed that in Walker County, the County Court at Law and the Walker County Court are the only courts with original probate jurisdiction, there is no question that the County Court at Law has jurisdiction of the matters-related-to-probate-proceedings as defined by the Estates Code, which includes a suit like Cromer's against a former personal representative arising out of the representative's performance of the duties as a personal representative. See id. §§ 32.002(b) and 31.002(a)(1).

         This leads us to the question of whether the jurisdiction is exclusive or concurrent. Cromer argues that when the Estates Code means exclusive jurisdiction it says so, noting that section 32.005 provides for exclusive jurisdiction of a statutory probate court except where it has concurrent jurisdiction with a district court under section 32.007. See id. §§ 32.005(a) & 32.007. Cromer then argues,

Notably, 32.007 bestows concurrent jurisdiction to the District Courts for, among other things, actions by or against a trustee. ...

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