PENNY TRESA MCMENNAMY, Appellant v. CURTIS MCMENNAMY, Appellee

AFFIRM and Opinion Filed October 10, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01566-CV
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PENNY TRESA MCMENNAMY, Appellant
V.
CURTIS MCMENNAMY, Appellee
.............................................................
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 69233
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MEMORANDUM OPINION
Before Justices Wright, Moseley, and Lang-Miers
Opinion By Justice Wright
        Penny Tresa McMennamy appeals the trial court's order dismissing her lawsuit against Curtis McMennamy. In four issues, appellant contends the trial court erred by granting appellee's motion for new trial and dismissing her lawsuit for lack of subject matter jurisdiction. We affirm the trial court's dismissal order.
        On March 6, 2004, Doris Nel Clark Jones executed a will leaving certain real property in Hunt County to her nephew, appellee. Jones died on September 18, 2004. Thereafter, the independent executor filed an application for probate of the will as a muniment of title in the Hunt County Court at Law. On December 13, 2004, the county court judge entered a judgment admitting the will to probate as muniment of title. The same day, the independent executor executed an assumption warranty deed for the property in appellee's name. There was no appeal from the county court's judgment admitting the will as muniment of title, and the judgment became final on February 11, 2005.
        On July 21, 2005, appellant filed suit in the 354th District Court in Hunt County claiming ownership of the same real property willed to appellee by Jones and subsequently deeded to appellee by the independent executor of Jones's estate. In her amended petition, she sought (1) a declaration that the assumption deed was void; (2) a constructive trust based on a fraudulent will; (3) construction of the will; and (4) in the event the court determined she was not the owner of the complained-of property, damages for unjust enrichment. Several months later, the trial court entered a no-answer default judgment declaring the assumption deed void and declaring appellant as the fee simple owner of the property. Thereafter, appellee filed a motion for new trial asserting his failure to answer was not intentional or due to conscious indifference but was due to an accident or mistake. After the trial court granted appellee's motion for new trial, appellee asked the district court to dismiss for lack of subject matter jurisdiction contending that because appellant's petition showed she was contesting Jones's will, jurisdiction over this case was in the county court that had previously ordered the will to probate. The trial court subsequently granted appellee's motion to dismiss and this appeal followed.
        Because it is dispositive, we begin our discussion with appellant's contention that the trial court erred by dismissing this case for lack of subject-matter jurisdiction. According to appellant, the district court had jurisdiction over this lawsuit because at the time she filed this case (1) the county court's probate of the estate was final; (2) no other court had a proceeding concerning these parties or issues; (3) post-probate actions for title to real property are properly brought against the distributee holding title to that asset; (4) the property had adeemed, and was therefore not part of Jones's estate; and (5) district courts have general subject matter jurisdiction over land title actions. Although we do not disagree with appellant's assertions, we nevertheless conclude the trial court lacked subject matter jurisdiction because, under the facts and circumstances of this case, these assertions are not controlling.
        A motion to dismiss based on a lack of subject matter jurisdiction is the functional equivalent of a plea to the jurisdiction challenging the trial court's authority to determine the subject matter of a cause of action. Patton v. Jones, 212 S.W.3d 541, 545 (Tex. App.-Austin 2006, pet. denied); Lacy v. Bassett, 132 S.W.3d 119, 122 (Tex. App.-Houston [14th Dist.] 2004, no pet.); Anderson v. City of San Antonio, 120 S.W.3d 5, 7 (Tex. App.-San Antonio 2003, pet. denied). See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (plea to jurisdiction is dilatory plea by which party challenges trial court's authority to determine subject matter of action). Whether a court has subject matter jurisdiction is a question of law subject to de novo review. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). In performing this review, we do not look to the merits of the plaintiff's case but consider only the pleadings and evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).
        Section 37 of the probate code provides that “when a person dies, leaving a will, all of the estate devised or bequeathed by such will . . . shall vest immediately in the devisees and legatees of such estate,” subject only to payment of the testator's debts. Tex. Prob. Code Ann. § 37 (Vernon 2003). After a will is admitted to probate, it becomes a “muniment of title” until set aside in some lawful manner. Ferguson v. Ferguson, 111 S.W.3d 589, 596 (Tex. App.-Fort Worth 2003, pet. denied) (citing White v. White, 179 S.W.2d 503, 505 (1944)). A right to the property devised through a will probated as a muniment of title is conferred on the devisee as effectively as if the transfer had been made in the form of a deed by the testator. Ferguson, 111 S.W.3d at 596.
        Any person interested in an estate may, at any time before any issue is decided by the court, file an opposition and shall be entitled to process for witnesses and evidence. Tex. Prob. Code Ann. § 10 (Vernon 2003). Once a judgment is entered, any person interested in the estate may file a bill of review in the court in which the probate proceedings were had and have any decision, order, or judgment revised or corrected. Tex. Prob. Code Ann. § 31 (Vernon 2003). A bill of review must be filed within two years of the judgment. Id. If, as here, the court issuing an order admitting a will to probate as a muniment of title had the jurisdiction to do so, such an order is not subject to collateral attack. Wycough v. Bennett, 510 S.W.2d 112, 115 (Tex. Civ. App.-Dallas 1974, writ ref'd n.r.e.).
        In this case, appellant filed suit in the district court seeking (1) a declaration that the assumption deed (executed by the independent executor during the administration of the estate) was void; (2) a constructive trust based on a fraudulent will; (3) construction of the will; and (4) only in the event the court determined she was not the owner of the complained-of property, damages for unjust enrichment. Thus, in her petition, appellant challenged the construction and validity of Jones's will and the contents and administration of her estate. She did not, as she suggests in her brief, merely attempt to settle a title dispute. Consequently, her challenges should have been made in the county court probate proceeding either before the probate judgment was entered, or by filing a bill of review in that court. We note that at the time appellant filed suit in this case, she was within the limitations period to file a bill of review in the county court where the will was probated as a muniment of title.
        We do not disagree with appellant that a district court with concurrent jurisdiction may exercise jurisdiction over a matter incident to an estate where no probate court has otherwise acquired jurisdiction over the estate. See Tex. Prob. Code Ann. § 5 (Vernon 2003); Garza v. Rodriguez, 18 S.W.3d 694, 699 (Tex. App.-San Antonio 2000, no pet.). And, we likewise recognize that deriving an interest in real property by virtue of a will does not preclude suit in a court of general jurisdiction from determination of title disputes when there is no attempt to probate or administer a decedent's estate. See, e.g, Schuld v. Dembrinski, 12 S.W.3d 485, 488 (Tex. App.-Dallas 2000, no pet.) (suit for partition of real property where appellant and appellee alleged interests in the same property, appellant from her mother who died intestate, and appellee through her father's will). However, this is not such a case.
        Appellant's allegations in her petition show she is attempting to collaterally attack the county court's probate judgment by seeking a declaration that the will was obtained by fraud, the title to the property did not vest in appellee through the will because it was no longer part of Jones's estate at the time of her death, and by seeking construction of the will. Thus, appellant is challenging matters relating to the probate and administration of Jones's estate. Consequently, under the facts and circumstances of this case, we conclude the district court properly determined it did not have jurisdiction to consider appellant's allegations. We overrule appellant's third issue. Having determined the trial court lacked subject matter jurisdiction over this case, we need not consider appellant's remaining issues.
        We affirm the trial court's order of dismissal.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
 
 
061566F.P05