In Re: Senior Management Service of Tyler, Inc. d/b/a Greenbriar Nursing and Rehabilitation Center of Tyler and Dave Sutherland--Appeal from 7th District Court of Smith County

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Laws-info.com » Cases » Texas » 12th District Court of Appeals » 2004 » In Re: Senior Management Service of Tyler, Inc. d/b/a Greenbriar Nursing and Rehabilitation Center of Tyler and Dave Sutherland--Appeal from 7th District Court of Smith County

State: Texas

Court: Texas Northern District Court

Docket No: 12-04-00205-CV

Case Date: 10/22/2004

Plaintiff: Jody Stodder

Defendant: Randall E. Evans, et al--Appeal from 82nd District Court of Falls County

Preview:Jody Stodder v. Randall E. Evans, et al--Appeal from
82nd District Court of Falls County
MAJORITY | MAJORITY
IN THE
TENTH COURT OF APPEALS
No. 10-92-016-CV
JODY STODDER,
Appellant
v.
RANDALL E. EVANS, ET AL.,
Appellees
From the 82nd District Court
Falls County, Texas
Trial Court # 30,658
O P I N I O N
Jody // Stodder, plaintiff, appeals from a summary judgment entered by the district court of Falls County in favor of
the defendants, Randall Evans, individually, and in his representative capacities, the Estate of Richard Stodder,
Deceased, and the Richard Stodder Charitable Foundation. We will reverse the summary judgment.
In 1984 the county court of Falls County admitted the will of Richard Stodder to probate. Jody Stodder, who claims to
be Richard Stodder's only heir at law, alleged in a pleading filed on June 20, 1991, in the Falls County district court
that Richard Stodder had been declared mentally incompetent in 1962 and that Randall Evans, the guardian of
Stodder's person and estate in a Harris County guardianship proceeding and independent executor of his will, knew
Stodder lacked testamentary capacity to execute the will. This pleading was apparently mailed to the county clerk but
was somehow filed in the district court instead. She also asserted that Evans intentionally deceived her by
misrepresenting that Richard Stodder was still alive and that, after learning of his death, she diligently asserted her
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rights. In separate counts in the petition, Jody alleges causes of action against Evans, individually and in his
representative capacities, for fraud, constructive fraud, breach of fiduciary duty, conversion, negligence and gross
negligence, an accounting, and imposition of a constructive trust and equitable lien on the estate's assets. Nowhere in
the pleading, however, does she expressly request that the will be set aside because of fraud or lack of testamentary
capacity.
The defendants moved for a summary judgment in the district court proceeding on the grounds that: (1) Jody lacked
standing to bring the suit, (2) her suit was barred by the two-year statute of limitations, and (3) the suit was an
impermissible collateral attack on the county court judgment probating the will. The court granted a summary
judgment that Jody Stodder take nothing.
JURISDICTION OF A WILL CONTEST
A will contest is a direct attack on the order admitting a will to probate and must be filed in the original probate
proceeding. Crawford v. Williams, 797 S.W.2d 184, 186 (Tex. App. Corpus Christi 1990, writ denied) (holding that the
district court lacked original probate jurisdiction to adjudicate a will contest originally filed in the district court when
the constitutional county court never transferred the probate proceeding to the district court). Unless the county court
transfers the probate proceeding and the will contest to the district court under section 5 of the Probate Code, the
district court never acquires probate jurisdiction to adjudicate the will contest. Id.; Tex. Prob. Code Ann. 5(b), (c)
(Vernon Supp. 1993).
WAS A WILL CONTEST ALLEGED?
If the allegations in Jody's pleading can be construed as a will contest, then the district court lacked jurisdiction to
determine the merits of the will contest by a summary judgment. See Crawford, 797 S.W.2d at 186. Under those
circumstances, the only order the district court could enter would be to dismiss for want of jurisdiction. See City of
Beaumont v. West, 484 S.W.2d 789, 791 (Tex. Civ. App. Beaumont 1972, writ ref'd n.r.e.). Lack of jurisdiction is a
fundamental error that can never be overlooked by a court. Crawford, 797 S.W.2d at 185. If, however, the pleading
does not allege a will contest, then the district court would have jurisdiction of the causes of action alleged. In that
event, we would consider the merits of the summary judgment.
CONSTRUCTION OF PLEADING
Thus, the proper disposition of this appeal depends upon a construction of the pleading filed in the district court. Using
a liberal construction and indulging every reasonable intendment in Jody's favor, as we must, we construe the pleading
as asserting a will contest in addition to other causes of action. See Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982).
It contains explicit allegations of lack of testamentary capacity, as well as allegations of fraud, deception, and
misrepresentation on Evans' part in probating the will in Falls County. What is missing is a specific averment or
request that the will be set aside on these grounds. If that averment can be supplied, then no confusion of the pleader's
intendment would exist. We can supply the missing averment by inference because it is clearly implied by what is
alleged. See id.
Construing the pleading as including a will contest harmonizes with the specific allegation that heirs at law are
determined at the time a will is set aside, with requests for a constructive trust and equitable lien on the estate's assets,
and with the prayer that the court order Evans to convey the estate's assets to Jody as Stodder's sole heir at law. See
Webb County v. Board of School Trustees, 95 Tex. 131, 65 S.W. 878, 879 (1901). A constructive trust on and
conveyance of specific assets would be possible and necessary only if she were entitled to possession, and she would
have no right of possession unless the will were first set aside through a will contest. In fact, the defendants asserted in
their motion for a summary judgment that her request for possession of the estate's assets is equivalent to requesting
that the will be set aside. Moreover, Jody's aborted attempt to file the pleading in the county court is consistent with the
filing of a will contest. See Parr v. Pichinson, 370 S.W.2d 941, 944 (Tex. Civ. App. San Antonio 1963, writ ref'd)
(holding that the construction the parties placed on the pleading through their actions will control).
DISPOSITION
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Based on this construction, the district court lacked jurisdiction to adjudicate the will contest because the pleading was
not filed in the original probate proceeding in the county court and the county court never transferred the probate
proceeding to the district court. See Crawford, 797 S.W.2d at 186. Therefore, the summary judgment is void to the
extent it purports to adjudicate the merits of the will contest. See State v. Olsen, 360 S.W.2d 398, 399 (Tex. 1962). The
only order the district court could enter was to dismiss the will contest for want of jurisdiction. See City of Beaumont,
484 S.W.2d at 791.
Accordingly, we sever the will contest from the remaining causes of action and reverse the summary judgment in its
entirety. We remand the will contest to the trial court with instructions to dismiss it for want of jurisdiction. The merits
of the other causes of action alleged in the pleading necessarily depend upon the merits of the will contest. Because we
believe the will contest and the other causes of action cannot be separated without unfairness to the parties, but must
be treated as an inseparable whole, we likewise remand the remaining causes of actions to the trial court without any
instructions. See Tex. R. App. P. 81(b)(1); Cochran v. American Sav. & Loan Ass'n, 586 S.W.2d 849, 850 (Tex. 1979).
We do not discuss any authority cited by the parties because it pertains only to the merits of the summary judgment.
BOB L. THOMAS
Chief Justice
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
(Justice Vance dissenting)
Reversed and remanded
Opinion delivered and filed August 4, 1993
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