Opinion
02-24-00330-CV
08-27-2024
Estate of Joe Weldon Ward Jr.
On Appeal from the 235th District Court Cooke County, Texas Trial Court No. CV19-00169
Before Kerr, Womack, and Wallach, JJ.
MEMORANDUM OPINION
Per Curiam
Petitioner, Estate of Joe Weldon Ward Jr., filed a petition seeking permission to appeal an interlocutory order denying its motion to reconsider its plea to the jurisdiction and motion for summary judgment. For the reasons that follow, we deny the petition.
Background
In 2005, Joe Weldon Ward Sr. gave his son, Joe Weldon Ward Jr., power of attorney. Two days later, Joe Jr. executed three deeds as power of attorney for Joe Sr. The deeds conveyed three separate properties in Gainesville, Texas, from Joe Sr. to Joe Jr. In January 2006, Joe Sr. took action to revoke the power of attorney and reclaim property-including money from Joe Sr.'s bank account-that Joe Jr. had transferred to himself. In a demand letter dated January 13, 2006, an attorney for Joe Sr. told Joe Jr. that Joe Sr.'s power of attorney did not authorize Joe Jr. to transfer property to himself. On September 12, 2006, Joe Sr. died, apparently without ever recovering his property.
In 2019, Respondent Jo Ann Ward, one of Joe Sr.'s daughters, sued Joe Jr. in the trial court. Two days after filing that lawsuit, she filed an Application for Letters of Dependent Administration in the Cooke County Court at Law. In December 2019, both parties moved for summary judgment in the trial court. Additionally, Joe Jr. filed a plea to the jurisdiction, arguing that Jo lacked standing to bring her breach-of-fiduciary-duty claim and that the trial court lacked jurisdiction to decide matters of heirship, which was the determination that Jo was "truly" seeking. On August 24, 2020, while the pleadings were still pending before the trial court, Joe Jr. died. The trial court denied both motions for summary judgment and the plea to the jurisdiction on November 17, 2020.
In her original petition, Jo sued to set aside the three deeds based on fraud, invalid conveyance, and breach of fiduciary duty. But in her amended original petition, which appears to have been her live pleading on file at the time the trial court made the ruling that the Estate seeks to appeal, she dropped her fraud and breach-of-fiduciary-duty claims and reframed her action against the Estate as a suit to quiet title to the three Gainesville properties.
On August 12, 2021, the Cooke County Court at Law signed a Judgment Declaring Heirship, finding, ordering, and decreeing that Joe Sr.'s heirs were Joe Jr., Jo, and Ashli Ward and that each heir had a 1/3 interest in Joe Sr.'s estate. On January 10, 2024, Joe Jr.'s Estate filed a motion to reconsider its summary-judgment motion and jurisdictional plea, claiming that Jo had "filed an application for writ of scire facias, specifically admitting that the [County] Court ha[d] jurisdiction over the claims this entire time[] and that the statute of limitations ha[d] expired on [Jo]'s claims." In her response to the motion to reconsider, Jo admitted that she had filed a motion for scire facias to serve as the executor of Joe Sr.'s estate but argued that the trial court had exclusive jurisdiction to hear and determine her suit against Joe Jr. because "there was no probate pending" in Joe Sr.'s estate at the time she had filed her suit in the trial court. She also argued that an equitable suit to quiet title is not subject to limitations if a deed is void.
On July 5, 2024, the trial court signed an interlocutory order denying the Estate's motion to reconsider and authorizing an interlocutory appeal "in the event that [the Estate] files a notice of appeal." See Tex. Civ. Prac. &Rem. Code Ann. § 51.014(d), (f); Tex.R.App.P. 28.3(a). The Estate filed a notice of appeal on July 17, 2024, and an amended notice of appeal on July 18, 2024, but after we expressed our concern that we might not have jurisdiction over this appeal because the Estate had not filed a petition for permissive appeal with us, the Estate timely filed a petition in this court seeking permission to appeal the trial court's interlocutory order. Jo had the opportunity to file a response, see Tex.R.App.P. 28.3(f), but has not done so.
Analysis
Applicable Law
Our authority to consider a permissive appeal is governed by Texas Rule of Civil Procedure 168, Texas Civil Practice and Remedies Code Section 51.014, and Texas Rule of Appellate Procedure 28.3. The first step the petitioner must satisfy is obtaining the trial court's permission to appeal. Tex.R.Civ.P. 168; Tex. Civ. Prac. &Rem. Code Ann. § 51.014(d). If the trial court grants permission to appeal, then it must state its permission in an order that "must identify the controlling question of law as to which there is a substantial ground for difference of opinion, and must state why an immediate appeal may materially advance the ultimate termination of the litigation." Tex.R.Civ.P. 168; Tex. Civ. Prac. &Rem. Code Ann. § 51.014(d).
If the trial court signs an order that satisfies the requirements of Rule 168 and
Section 51.014(d), then the party who seeks to appeal must ask us for permission. Tex.R.App.P. 28.3(a); Tex. Civ. Prac. &Rem. Code Ann. § 51.014(f). The permissive-appeal petition must "argue clearly and concisely why the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion and how an immediate appeal from the order may materially advance the ultimate termination of the litigation." Tex.R.App.P. 28.3(e)(4).
An appellate court's decision to accept or deny a properly certified permissive appeal is discretionary. See Sabre Travel Int'l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 731-32 (Tex 2019); see also Tex Civ Prac &Rem Code Ann § 51014(f) (providing that court of appeals "may accept an appeal permitted by [Section 51014(d)]" if appealing party files petition showing why immediate appeal is warranted) (emphasis added); Ochoa v Avila, No 08-23-00051-CV, 2023 WL 1991579, at *1 (Tex App-El Paso Feb 14, 2023, no pet) (mem op) A plurality of the supreme court recently held that intermediate appellate courts have discretion to reject a permissive appeal "even when the requirements [of Section 51014(d)] are met" Indus Specialists, LLC v Blanchard Refin Co LLC, 652 S.W.3d 11, 21 (Tex 2022) (plurality op) Two concurring justices agreed with the plurality in Industrial Specialists but wrote separately to explain that they would have held that the intermediate appellate courts have absolute discretion to deny a permissive appeal Id. at 21- 23 (Blacklock, J, concurring); see also Sabre Travel, 567 S.W.3d at 732.
A court of appeals that denies a permissive-appeal petition must explain why. Tex. Civ. Prac. &Rem. Code Ann. § 51.014(g); Tex.R.App.P. 28.3(1). The supreme court may review the denial de novo. Tex. Civ. Prac. &Rem. Code Ann. § 51.014(h); Tex.R.App.P. 28.3(1).
Application
The trial court's order denying the Estate's motion to reconsider-and again denying its jurisdictional plea and summary-judgment motion-stated, "This order denying the Motions involves a controlling question of law as to which there is a substantial ground for difference of opinion, an immediate appeal from the order may materially advance the ultimate termination of the litigation, and the [trial c]ourt authorizes an interlocutory appeal." But the order did not specify the basis for the trial court's ruling. See Ewing v. Colia, No. 02-18-00315-CV, 2018 WL 5289380, at *1 (Tex. App.-Fort Worth Oct. 25, 2018, no pet.) (mem. op.). "It is well-settled that to invoke this court's permissive-appeal jurisdiction, 'the trial court must make a substantive ruling on the controlling legal issue being appealed so that the legal issue presented to this court is the same legal issue determined by the trial court.'" Id. (quoting Eagle Gun Range, Inc. v. Bancalari, 495 S.W.3d 887, 889 (Tex. App.-Fort Worth 2016, no pet.)). Because the trial court's order does not satisfy the requirements of Rule 168, the Estate's petition "does not meet the strict jurisdictional requirements" for a permissive appeal. See id.; see also Luccia v. City of Houston, No. 01-17-00378-CV, 2017 WL 2471107, at *2 (Tex. App.-Houston [1st Dist.] June 8, 2017, no pet.) (per curiam) (mem. op.).
Similarly, the Texas Supreme Court has declined to address controlling questions of law not expressly identified in the trial court's order. See BPX Operating Co. v. Strickhausen, 629 S.W.3d 189, 195 n.4 (Tex. 2021).
Even assuming that the trial court's order satisfies Rule 168, we would still deny the Estate's petition. In it, the Estate identifies three issues presented to us:
1. When the Plaintiff files an application for administration of an estate in Probate Court, claiming that the administration is necessary, and then non-suits it just prior to appeal, how can Plaintiff then have standing in the District Court claiming that the administration is neither necessary nor pending?
2. How does a Plaintiff filing an application for administration of an estate in Probate Court not vest it with original jurisdiction over the real property that belonged to the deceased whose estate was involved?
3. Does the Plaintiff filing an application for administration of an estate then nonsuiting it (a) deprive the District Court of jurisdiction, (b) invoke res judicata, and (c) defeat Plaintiff's proposed exception to the rule stating that heirs do not have standing with regard to the Decedent's estate?
All three issues question the trial court's subject-matter jurisdiction over Jo's suit to quiet title, but the Estate argues elsewhere in its petition that all applicable statutes of limitations have run. Effectively, the Estate is seeking to appeal the trial court's order denying its motion to reconsider on two points: (1) that the trial court lacks subject-matter jurisdiction over Jo's suit and (2) that Jo's suit is time-barred. Either point would be dispositive of the case if the Estate were to prevail on it: if the trial court lacks subject-matter jurisdiction over Jo's suit, then it would have to dismiss it, and if her suit is barred by limitations, then the Estate would be entitled to summary judgment in its favor.
But the Estate cannot show that it would prevail on either point. A controlling issue of law that will support a permissive appeal "needs to be solely a question of law unconstrained by procedural or factual issues." See El Paso Tool &Die Co., Inc. v. Mendez, 593 S.W.3d 800, 805 (Tex. App.-El Paso 2019, no pet.). Because the trial-court ruling that the Estate seeks to appeal turned on the trial court's resolution of procedural or factual issues, the Estate has not established that the order denying its motion to reconsider "involves a controlling question of law as to which there is a substantial ground for difference of opinion," nor has it shown "how an immediate appeal from the order may materially advance the ultimate termination of the litigation." See Tex.R.App.P. 28.3(e)(4).
Subject-Matter Jurisdiction
District courts generally have exclusive jurisdiction to determine title to real property. City of Willow Park v. Squaw Creek Downs, L.P., 166 S.W.3d 336, 340 (Tex. App.-Fort Worth 2005, no pet.). The Estate contends that Jo's suit to quiet title, “in fact and in law, is an action to determine heirship over which the [trial] court has no jurisdiction.” See, e.g., Thomas v. Tollon, 609 S.W.2d 859, 860 (Tex. App.-Houston [14th Dist.] 1980, writ ref'd n.r.e.) (“Exclusive original jurisdiction to determine heirship is conferred upon the county court sitting in probate, and the district court has no such original jurisdiction.”). The Estate relies on the “general rule” that “heirs cannot sue without alleging and proving that there is no administration upon the estate[] and that there is no necessity for one." Richardson v. Vaughan, 23 S.W. 640, 641 (Tex. 1893); see also Bluitt v. Pearson, 7 S.W.2d 524, 525 (Tex. [Comm'n App.] 1928) ("In a suit such as that presented [where some of a decedent's heirs sue other heirs, claiming an interest in the decedent's estate], it is indispensable that the plaintiffs' petition should contain an allegation that there is no administration and no necessity for one.").
Here, Jo has pleaded that there is no administration upon her late father's estate and no necessity for one. But Joe Jr.'s Estate claims that, in her application for letters of dependent administration, Jo said the opposite: "A necessity exists for the administration of this Estate ...." What the Estate does not mention in its petition is how Jo explained this apparent contradiction to the trial court:
There is no administration upon the estate of Ward Sr. and none is necessary. On April 11, 2029 [sic], Plaintiff filed a request for administration based upon the one fact that it was necessary because the Texas Comptroller of Public Accounts was holding unclaimed stock and bonds in Decedent's name. After the pleading was filed, it was determined that a determination of heirship by the probate court was all that was required to obtain the funds. Since that time, all stocks and bonds have been transferred under the determination of heirship. Therefore, no administration is necessary.
Jo offered this explanation in her amended petition, copies of which the Estate filed in this court. But we are not suggesting a lack of candor by the Estate or its counsel.
The trial court, sitting as finder of fact, could accept this explanation and find that Jo had met her pleading requirement to invoke its jurisdiction and that she could prospectively prove that an administration of Joe Sr.'s estate was unnecessary. This is not a controlling question of law.
The Estate also contends that Jo has no standing to bring this suit. "Standing is implicit in the concept of subject-matter jurisdiction, and subject-matter jurisdiction is essential to the authority of a court to decide a case." In re Abbott, 601 S.W.3d 802, 807 (Tex. 2020, orig. proceeding). A plaintiff in a suit to quiet title has standing if she is "the holder of the feeblest equity" and may use a quiet title action "to remove from h[er] way to legal title any unlawful hinderance having the appearance of better right." Montenegro v. Ocwen Loan Servicing, LLC, 419 S.W.3d 561, 567 (Tex. App.-Amarillo 2013, pet. denied) (quoting Bell v. Ott, 606 S.W.2d 942, 952 (Tex. App.-Waco 1980, writ ref'd n.r.e.)); see Thomson v. Locke, 1 S.W. 112, 115 (Tex. 1886).
The Estate argues that Jo "does not have even the feeblest of title" because Joe Jr. "was deeded the relevant properties in 2005, and [even] if it was decided that the deeds were ineffective, he acquired them by adverse possession for a period of about 15 years without anyone challenging his ownership." The Estate adds that Joe Jr. did not distribute any of his rights to Jo.
In the trial court, Jo argued that, as a Joe Sr. heir, she has a 1/3 undivided interest in the real properties, thereby giving her standing to bring this suit. She also argued that Joe Jr. had failed to prove his right to the property by any adverse-possession claim. Both the Estate's and Jo's arguments hinge on resolving factual issues and therefore do not present a "controlling question of law" that a permissive appeal can resolve. See Mack v. Pittard, No. 04-24-00201-CV, 2024 WL 2836624, at *4 (Tex. App.-San Antonio June 5, 2024, no pet. h.) (per curiam) (mem. op.); see also Mendez, 593 S.W.3d at 805.
Jo's theory appears to be that the deeds conveying the three Gainesville properties from Joe Sr. to Joe Jr. are void, and thus title to the properties never passed from Joe Sr. If Joe Sr. had died intestate, then based on the County Court's heirship determination, Jo has an undivided 1/3 interest in all the property he owned at the time he died in 2006. See, e.g., Chandler v. Welborn, 294 S.W.2d 801, 806 (Tex. 1956) (explaining that "the property of a person who dies intestate passes to his heirs at law").
Limitations
Finally, the Estate contends that all limitations periods applicable to Jo's suit have run. It cites Texas Civil Practice and Remedies Code Section 16.003(a) (two-year period), Section 16.024 (three-year period), Section 16.004(a) (four-year period), and Section 16.026 (ten-year period). See Tex. Civ. Prac. &Rem. Code Ann. §§ 16.003(a) (suit for trespass for injury to the estate or to the property of another), 16.004(a) (fraud and breach of fiduciary duty), 16.024 (suit to recover real property held by another in peaceable and adverse possession under title or color of title), 16.026 (suit to recover real property held under a duly registered deed in peaceable and adverse possession by another who cultivates, uses, or enjoys the property). The Estate additionally argues that "it is well-settled law that deeds conveyed through fraud, as alleged by [Jo], are voidable and thus are subject to a 4-year statute of limitations." See Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 618 (Tex. 2007) ("Deeds obtained by fraud are voidable rather than void, and remain effective until set aside.").
But in Jo's amended petition, which the Estate concedes is her "active petition" in the trial court, she abandons all her originally pleaded causes of action against Joe Jr. and proceeds only on her suit to quiet title, claiming that the power of attorney Joe Jr. had used to convey the properties to himself was "invalid," that he "did not have the authority to transfer the properties to himself," and that the deeds are "invalid and unenforceable." She provided the trial court with case law supporting her position that limitations have not run on her quiet-title suit, a position the trial court evidently accepted. See Ditta v. Conte, 298 S.W.3d 187, 192 (Tex. 2009) ("We have held that as long as an injury clouding the title remains, so too does an equitable action to remove the cloud; therefore, a suit to remove the cloud is not time-barred [I]f a cloud on title is void or has expired by its own terms, there is no limitations period on the equitable claim to declare the existing status."); Slaughter v. Qualls, 162 S.W.2d 671, 674 (Tex. 1942) ("The question whether the trustee's deed is void or voidable depends on its effect upon the title at the time it was executed and delivered."); see also Poag v. Flories, 317 S.W.3d 820, 825 (Tex. App.-Fort Worth 2010, pet. denied) ("An equitable suit to quiet title is not subject to limitations if a deed is void."). Because the trial court's decision depended on its resolution of procedural and factual issues, we will not review it in a permissive appeal. See Tex. Civ. Prac. &Rem. Code § 51.014(d); Mendez, 593 S.W.3d at 805.
Conclusion
Because the Estate has not shown that the order it seeks to appeal involves a controlling question of law on which a substantial ground for difference of opinion exists and how an immediate appeal from the order might materially advance the ultimate termination of the litigation, we deny the petition. See Tex. Civ. Prac. &Rem. Code Ann. § 51.014(d); Tex.R.App.P. 28.3(e)(4), (1); see also Tex.R.Civ.P. 168.