In re Marvin Jauer Soefje, Jr.--Appeal from County Court At Law No 2 of Guadalupe County

MEMORANDUM OPINION

No. 04-05-00140-CV

IN RE Marvin Jauer SOEFJE, Jr.

Original Mandamus Proceeding //

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: June 1, 2005

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

Marvin Jauer Soefje, Jr. seeks mandamus relief asserting that the county court at law abused its discretion in entering a judgment on a trust matter. // Because the county court at law does not have jurisdiction with regard to inter vivos trust proceedings, we conditionally grant the petition for writ of mandamus but only with regard to those portions of the county court at law s judgment that address trust matters.

Background

On November 23, 1996, E. Susan Soefje, the mother of Peggy Soefje Jones and of the relator, Marvin, created an inter vivos trust into which she conveyed certain assets. The trust document provided for specific distributions of real property upon Susan s death. Under these distributions, Peggy was to receive all real property south of Interstate 10, and Marvin was to receive all real property north of Interstate 10. In June of 2001, Susan amended her trust to provide for an additional specific distribution of real property to Peggy of two tracts of land, one consisting of 125 acres and the other consisting of 5 acres. On the same date Susan executed the document creating the inter vivos trust, she also executed a will leaving her entire estate to the trustee of her trust. Susan died on February 20, 2002.

On May 8, 2002, Marvin sued Peggy in her capacity as trustee of the inter vivos trust in district court, seeking an accounting and Peggy s removal as trustee. This lawsuit was filed by Marvin before Susan s will was offered for probate.

On November 27, 2002, Marvin applied to the constitutional county court to have Susan s will admitted for probate. Marvin sought to be appointed as independent executor and to have Peggy declared unsuitable to serve in that capacity. Marvin also sought the issuance of letters testamentary. Peggy countered with an application to have the will probated as a muniment of title only.

Initially, the trust proceeding and the probate proceeding were consolidated by the district court, which exercised jurisdiction and entered various orders. On April 14, 2003, the district court conducted a hearing at which the parties announced certain agreements had been reached, including the appointment of a third party trustee/executor who would conduct a complete accounting of the estate and the trust back to January of 2001, a date preceding Susan s death. Both sides reserved all claims that might come out of the accounting. On August 9, 2003, the district court appointed David Wise to serve as trustee of the trust. On September 29, 2003, Peggy filed a motion to approve the final accounting and for the final distribution and termination of the trust.

On November 20, 2003, Marvin filed a motion to remove Wise as trustee and for the appointment of a new trustee/administrator. At a hearing, Peggy s attorney stated that Wise did not believe there was a need to go over all of the transactions prior to the date of Susan s death. Peggy s attorney further noted that the final accounting which Peggy was asking the district court to approve had every single transaction listed during the period 2001 until all the accounts were closed out and money deposited into the registry of the court. Peggy s attorney noted that no specific objections were filed with regard to the accounting. Marvin s attorney responded that he had not received specific information that he had requested, including information regarding a payment for a utility right of way and a money market account. At the conclusion of the hearing, the district court judge stated he would appoint an administrator, and Peggy s attorney requested that Marvin be required to make specific objections to the accounting.

In July of 2004, the parties filed a joint motion to transfer the probate proceeding back to the constitutional county court, agreeing that the district court did not have jurisdiction with regard to the probate proceeding. The district court signed an order vacating its April 2003 consolidation order and transferred the probate proceeding back to the constitutional county court. The constitutional county court subsequently transferred the probate proceeding to the county court at law because the judge of the constitutional county court was related to Peggy s husband. //

On December 2, 2004, at the conclusion of a two day hearing, the presiding judge of the county court at law, the Honorable Frank Follis, orally rendered judgment stating:

THE COURT: All right. Having heard the evidence and the arguments of Counsel, the Court makes the following findings of fact:

That on November 18, 2004 a hearing was held in County Court at Law No. 2 sitting as a probate court on the applicant s first amended application to probate will and for issuance of letters testamentary.

That in this application the Applicant alleged that Respondent committed, quote, criminal acts involving misapplication of funds belonging to decedent or decedent s estate.

The Court finds from the evidence heard at that hearing that there is no evidence of criminal acts involving misapplication of funds by Respondent after the decedent s death.

Applicant also questions checks which were written before decedent s death under what purports to be a power of attorney and signature authority on a checking account owned by decedent.

I find no pleadings alleging that the decedent was incapacitated or that fraud, force, duress, coercion or deception was exercised upon decedent in order to induce her to sign said powers [sic] of attorney or signature authority on the checking account.

Further, those matters occurred before the decedent s death and should not be part of this probate proceeding.

If the Applicant wishes to pursue allegations of undue influence on the decedent that would invalidate her decisions as to power of attorney and signature power on the checks, he may so do and plead it accordingly and that would perhaps be a part of the pending lawsuit 020711-CV which is pending apparently still in District Court, but it is not a part of this proceeding.

The Court further finds that Respondent, Peggy Soefje, filed a final accounting on September 29th of 2003. Applicant filed a response alleging basically the allegations that he has alleged here on the November 18th hearing, that is, unauthorized use of funds. He, otherwise, did not question the accounting.

Further, Applicant accepted distribution of some $45,000 from the estate under the final accounting prepared by Respondent.

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I believe that disposes of the probate proceeding and Counsel may go back to District Court on the trust matter, if they choose.

MR. JORDAN [Marvin s attorney]: Thank you.

MR. BENDER [Peggy s attorney]: Your Honor, one point, the motion for judgment that I had filed, it requires distribution of the real estate, but there is one issue, the necessity to go back into District Court because we had filed an agreed statement of disputed issues and this judgment is a final judgment that basically disposes of all the issues, including those in District Court.

THE COURT: That may well be.

On December 13, 2004, Judge Follis signed a final judgment that appears inconsistent with his verbal pronouncement recognizing the district court s continuing jurisdiction over the trust matter. The judgment states that it is a final judgment for the district court matter. The judgment approves the final accounting in regard to the trust and further approves the termination of the trust.

On December 30, 2004, the Honorable Gus J. Strauss entered a final judgment in the district court cause recognizing that all issues and parties were disposed of by the county court at law s judgment. Marvin filed a motion for new trial asserting in a memorandum of law in support of the motion that the county court at law did not have jurisdiction to adjudicate the trust issues. Marvin also asserted that the hearing on the motion to enter judgment occurred in the absence of Marvin s attorney, who believed his motion for continuance was granted. On February 23, 2005, Judge Strauss granted the motion for new trial because he recalled granting the motion for continuance and signed the final judgment only because he believed there was no objection to it.

On January 12, 2005, Marvin filed his notice of appeal in the county court at law. On March 9, 2005, Marvin filed the instant petition for writ of mandamus.

Discussion

District courts and statutory probate courts are the only courts with jurisdiction over trust proceedings. Tex. Prop. Code Ann. 115.001 (Vernon Supp. 2004-2005); Schuele v. Schuele, 119 S.W.3d 822 (Tex. App. San Antonio 2003, no pet.). This court held in Schuele that a county court at law exercising probate jurisdiction does not have jurisdiction to consider issues in a trust proceeding seeking an accounting as a matter incident to an estate. 119 S.W.3d at 825. In this case, the county court at law s judgment approves the final accounting for the trust and addresses other trust matters.

Peggy asserts that mandamus relief is not appropriate because the parties agreed to consolidate the matters and to the county court at law s jurisdiction over those matters. Peggy further asserts that Marvin misled the county court at law into believing that he was not making any claims with regard to the trust. Subject matter jurisdiction cannot be conferred by agreement, estoppel, or by judicial admission. See Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex. 2001); In re A.C.S., 157 S.W.3d 9, 15 (Tex. App. Waco 2004, no pet.). Regardless of the claims asserted by Marvin, the county court at law s judgment approves the final accounting and termination of the trust. At an earlier hearing, Peggy s attorney acknowledged that the accounting listed every single transaction during the period 2001 until all the accounts were closed out and money deposited into the registry of the Court. The approval of the accounting was a matter over which only a district court or a statutory probate court had jurisdiction. While we do not condone Marvin s actions and understand the basis for the county court at law s judgment, Marvin s actions cannot confer jurisdiction in the county court at law over trust proceedings.

Mandamus relief is appropriate when one court interferes with another court s jurisdiction. In re SWEPI, L.P., 85 S.W.3d 800, 809 (Tex. 2002). In SWEPI, the Texas Supreme Court held that mandamus relief was appropriate when a probate court erroneously concluded it had jurisdiction over a purported matter incident to an estate and actively interfered with the jurisdiction of another court. 85 S.W.3d at 809. Similarly, in this case, the county court at law erroneously concluded that it had jurisdiction and entered a final judgment with regard to trust matters. Furthermore, in granting the motion for new trial, the district court has entered an order that appears to conflict with the county court at law s judgment. For this reason, we conditionally grant mandamus relief but only with regard to those portions of the county court at law s judgment that address trust matters, including the approval of the trust s final accounting. The writ will only issue if Judge Follis fails to withdraw those portions of the county court at law s judgment addressing trust matters within ten days from the date of our opinion and order.

Alma L. L pez, Chief Justice