Gammill v. Fettner (Tex.App.- Houston [14th Dist.] Jun. 16, 2009)(Frost)(probate court district
court concurrent jurisdiction)
Under the statutes relevant to this case, the trial court below had concurrent
jurisdiction with the probate court over Fettner's claims, and Fettner was not
required to assert his claims in the probate court, even if they are claims
appertaining to an estate or incident to an estate.  See Tex. Prob. Code Ann. §
5A(b).  Therefore, the trial court's judgment is not void for lack of subject-matter
jurisdiction.  Accordingly, we overrule the first issue.
AFFIRMED: Opinion by Justice Kem Frost  
Before Justices Frost, Brown and Boyce
14-07-00705-CV Cecil Gammill, Jr. and Jaime Martinez v. David A. Fettner, Trustee of The Gammill
Family Trust, John Gammill, Kathleen Bungard, Laura Gammill, Janice Phillips, and Daniel Gammill
Appeal from 190th District Court of Harris County
Trial Court
Judge: Jennifer Elrod Walker  

Affirmed and Opinion filed June 16, 2009.

In The

Fourteenth Court of Appeals
____________

NO. 14-07-00705-CV
____________

CECIL GAMMILL, JR. AND JAIME MARTINEZ, Appellants

V.

DAVID A. FETTNER, TRUSTEE OF THE GAMMILL FAMILY TRUST, JOHN GAMMILL, KATHLEEN
BUNGARD, LAURA GAMMILL, JANICE PHILLIPS, AND DANIEL GAMMILL, Appellees

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 2004-55686-C

O P I N I O N

This suit involves a dispute as to whether the trustee of a testamentary trust holds title to certain real
property.  The trial court granted summary judgment regarding claims asserted by the trustee against
various family members.  Two family members appeal asserting that the trial court lacked subject-
matter jurisdiction and that the trial court erred in granting summary judgment, denying the family
members' motion for new trial, and granting the severance that made the summary judgment final.  
We conclude that the district court had subject-matter jurisdiction and that the family members have
not shown that the trial court erred in making these rulings.  Accordingly, we affirm the trial court's
judgment.  

I.  Factual and Procedural Background

Cecil Gammill, Sr. (“Cecil Sr.") died in 1995.  In his will, he established the Gammill Family Trust
(hereinafter “Family Trust").[1]  Under Article III of the will, entitled “Trust Distributions and Duration,"
Cecil Sr. provided that, as soon as practicable after the death of his wife, Jackie Marie Gammill
(“Jackie"), the Trustee shall distribute the assets, one of which was his interest in a piece of property
described in the will as Lots One Hundred Six and One Hundred Seven of Garden Acres Subdivision
(hereinafter “Property").[2]  In his will, Cecil Sr. also gave his wife a power of appointment, stating,
“upon the death of my wife . . . the Trustee shall distribute the remaining principal and income of the
Family Trust in such manner, outright, in trust, or otherwise, to or for the benefit of any one or more of
my issue as my wife may appoint only by specific reference thereto in her Will admitted to probate,
provided that such power to appoint may not be exercised in favor of my wife, her estate, her creditors
or the creditors of her estate."  Cecil Sr. further provided in his will that if Jackie failed to exercise the
power of appointment with respect to the principal or income of the trust, then such portion not
effectively appointed would be distributed as otherwise provided in Cecil Sr.'s will.  

Jackie died in 2002.  In her last will and testament, Jackie attempted to give the Property by specific
devise to the Foundation for DePelchin Children's Center (hereinafter the “Center").  In August 2002,
Jackie's will was admitted to probate in Cause No. 332,455, in Harris County Probate Court No. 2.  In
October 2004, Kathleen Rose Gammill Bungard filed an original petition in the 190th Judicial District
Court in Harris County.  In the petition, Kathleen asserted claims against Philip Donisi, the
independent executor of the Estate of Jackie Marie Gammill, and Kathleen's two sisters, Janice Marie
Gammill Philips and Laura May Gammill, individually and as joint trustees of the Family Trust.  
Kathleen also joined as parties two other siblings, John Edward Gammill and Daniel Andrew Gammill.  
Kathleen sought to compel the distribution of assets of the estates of Cecil Sr. and Jackie, including
the Property, and also alleged Kathleen's two sisters had taken possession over certain assets
belonging to the Family Trust.  Donisi filed a plea in abatement with the 190th District Court, stating
that Kathleen had filed a claim with Harris County Probate Court Number 2 asserting the same basic
allegations against him in Cause No. 332,455-401.  Kathleen later nonsuited her claims against
Donisi, and she entered into an interlocutory agreed order to dismiss all claims for damages against
her sisters and the Family Trust.[3]

In July 2005, the 190th District Court appointed David A. Fettner as successor trustee of the Family
Trust.  In June 2006, Fettner filed an original petition in the 333rd Judicial District Court in Harris
County, joining for the first time Cecil Gammill, Jr. (“Cecil Jr.") and Cecil Jr.'s daughter, Jaime Martinez,
in the district court proceedings.  In his petition, Fettner sought a declaratory judgment.  Fettner
stated that Cecil Sr. owned the Property at the time of his death by virtue of a special warranty gift
deed from Jackie to Cecil Sr.[4]  As independent executor of Cecil Sr.'s will, Jackie, according to the
pleading, executed a special warranty distribution deed transferring the Property to the Family Trust,
making the Property an asset of the Family Trust.  The special warranty distribution deed shows that
Jackie was the trustee of the Family Trust at the time.  In the petition, Fettner asserted that Jackie's
attempted devise of the Property to the Center was not valid because her power of appointment was
limited by the language in Cecil Sr.'s will.  So that Fettner could distribute the assets of the Family
Trust, he requested a determination as to whether the residuary language of Jackie's will constituted
a proper exercise of the powers of appointment afforded Jackie by Cecil Sr.'s will.  In the same
petition, Fettner also brought a trespass-to-try-title action, stating that as trustee he was the owner in
fee simple of the Property and that Cecil Jr. unlawfully had entered upon and dispossessed the Family
Trust of the Property.
    
Fettner filed a motion to consolidate his 2006 suit with the 2004 case in the 190th District Court.  The
190th District Court, on November 7, 2006, granted Fettner's motion to consolidate the case pending
in the 333rd with what was pending in the 190th, merging the cases into Cause No. 2004-55686 and
realigning the parties.[5]  In his second amended petition in the trial court below, Fettner asserted the
following:

*       The Family Trust has held title to the Property since March 26, 1996.

*      Before Fettner can distribute the assets of the Family Trust, it must be determined whether the
residuary language of Jackie's will constituted a proper exercise of the powers of appointment
afforded Jackie by Cecil Sr.'s will or whether her attempt to exercise the power of appointment was
invalid.

*      Cecil Jr. unlawfully has entered upon the Property and dispossessed the Family Trust of the
Property.  Fettner, as trustee, is entitled to possession of the Property; however, Cecil Jr. still
withholds possession.

*       Fettner believes that Cecil Jr.'s claims to some ownership right in the Property are secondary
and inferior to the title in the Property held by Fettner as trustee.

*      Fettner sought declaratory-judgment relief and a judgment that he held title to the Property and
was entitled to possession of the Property.

On February 8, 2006, Fettner moved for summary judgment, asserting that he was entitled as a
matter of law to a judgment declaring the following:

*       The Family Trust is the owner in fee simple of the Property.

*      Fettner, as trustee of the Family Trust, is entitled to possession of the Property.

*      Fettner's title in the Property is primary and superior to any claims to ownership and possession
of the Property by any party in this case.

*      Jackie's attempt in her will to exercise the power of appointment afforded her by Cecil Sr.'s will in
favor of the Center was invalid.

Fettner also asked the district court to issue a judgment declaring one or the other of the following:

*      Although Jackie's attempt in her will to exercise the power of appointment afforded her by Cecil
Sr.'s will in favor of the Center was invalid, the instructions in the residuary clause of Jackie's will
constitute a valid power of appointment to Daniel Andrew Gammill, Kathleen Rose Bungard, Janice
Marie Gammill, John Edward Gammill and Laura May Gammill, equally.

*       Because Jackie's attempt in her will to exercise the power of appointment afforded her by Cecil
Sr.'s will in favor of the Center was invalid, the Property should be conveyed and distributed to Daniel
Gammill under the language contained in Article III.B.(1)(a) of Cecil Sr.'s will.

In support of his motion, Fettner provided various deeds showing the chain of title to the Property, as
well as the wills of Cecil Sr. and Jackie.  On February 6, 2007, Fettner served his motion for summary
judgment and a notice of hearing setting the motion for March 2, 2007.  Counsel for Cecil Jr. and
Jaime was served by certified mail, return receipt requested at his mailing address, which was a post
office box.  A notice was left in this box on February 10, 2007.  The notice informed the box holder
that there was a certified-mail item waiting to be picked up.  Counsel for Cecil Jr. and Jaime did not
pick up this mail until February 22, 2007.  On that same day, Cecil Jr. and Jamie moved for a
continuance of the summary-judgment hearing, based primarily on the timing of their counsel's
retrieval of the motion and notice.  At the March 2, 2007, hearing, the trial court denied the motion for
continuance; however, the trial court granted leave for Cecil Jr. and Jamie to file a late response by
March 9, 2007.  The trial court stated that it would take the motion under submission and rule on the
motion after considering their response and any replies thereto.  On March 9, 2007, Cecil Jr. and
Jamie filed a supplemental response, in which they stated the following:

*       The probate court has exclusive jurisdiction to determine the validity of Jackie's attempt in her
will to exercise the power of appointment afforded her by Cecil Sr.'s will in favor of the Center.

*      The trial court has jurisdiction to determine whether the Property is part of the Family Trust.

*      Counsel for Cecil Jr. and Jaime has evidence that he says supports the imposition of a purchase-
money resulting trust on the Property in favor of Cecil Jr.[6]

*      The probate court is the proper forum for the resolution of Cecil Jr.'s trespass-to-try-title action
and action to remove cloud on title.[7]

*      In the alternative, Jackie's attempt in her will to exercise the power of appointment afforded her by
Cecil Sr.'s will failed, and therefore the disposition of the Property is governed by Cecil Sr.'s will.

Though the responses filed by Cecil Jr. and Jamie contained argument, they did not proffer any
summary-judgment evidence.

The trial court signed a partial summary judgment on April 2, 2007, granting some of the relief sought
in Fettner's motion.  The trial court ordered as follows:

*       The Family Trust is the owner in fee simple of the Property.

*      Fettner, as trustee of the Family Trust, is entitled to possession of the Property to the exclusion
of all others.

*      The Family Trust is quieted in its title to the Property, and the clouds cast on the title by the
claims of the defendants are removed.

*      The Family Trust's title in the Property is primary and superior to any claims to ownership and
possession of the Property by any party in this case.

In May 2007, the 190th District Court ordered the declarations in this partial summary judgment
severed and assigned docket number 2004-55686-C, thereby making this partial summary judgment
final and appealable.[8]  Cecil Jr. filed a motion to set aside the order granting the partial summary
judgment and, alternatively, a motion for new trial.  Cecil Jr. based this motion on alleged “new
evidence" and the failure of his former lawyer to file a response including this “new evidence."  Cecil
Jr. asserted the “new evidence" supported his claim that he paid for the purchase of the Property and
that his parents (Cecil Sr. and Jackie) merely were holding title in their names to protect his assets
from potential creditors.  The trial court overruled this motion by operation of law.

In three appellate issues, Cecil Jr. and Jaime assert (1) the trial court lacked subject-matter
jurisdiction because the probate court had exclusive or dominant jurisdiction; (2) the trial court erred
in granting summary judgment and in overruling the motion for new trial; and (3) the trial court abused
its discretion by granting the severance.

II.  Standard of Review

In a traditional motion for summary judgment, if the movant's motion and summary-judgment evidence
facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a
genuine, material fact issue sufficient to defeat summary judgment.  M.D. Anderson Hosp. & Tumor
Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of a trial court's summary
judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence
unless reasonable jurors could not.  Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).  
The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their
conclusions in light of all of the summary-judgment evidence.  Goodyear Tire & Rubber Co. v. Mayes,
236 S.W.3d 754, 755 (Tex. 2007).

III.  Issues and Analysis

A.      Is the summary judgment void for lack of subject-matter jurisdiction?

When Fettner filed his suit, Texas Property Code section 115.001 stated that a district court had
original and exclusive jurisdiction over all proceedings concerning trusts, including proceedings to
“make determinations of fact affecting the administration, distribution, or duration of a trust" and
“determine a question arising in the administration or distribution of a trust."  Tex. Prop. Code Ann. §
115.001(a)(6)B(7) (Vernon Supp. 2008).[9]  The jurisdiction of a district court over proceedings
concerning trusts is exclusive except for the jurisdiction conferred by law on a statutory probate court.  
Id. § 115.001(a), (d).  Probate Court Number 2 of Harris County is a statutory probate court.  Tex.
Gov't Code Ann. § 25.1031(c)(2) (Vernon 2004).  

In his will, Cecil Sr. created the Family Trust, of which Fettner is the successor trustee.  The parties do
not dispute that the Family Trust is a testamentary trust.  Fettner initially brought suit in the 333rd
District Court.  In his petition, Fettner sought a declaratory judgment.  He stated that the Property was
owned by Cecil Sr. at the time of his death by virtue of a special warranty gift deed from Jackie to
Cecil Sr.  As independent executor of Cecil Sr.'s will, Jackie, according to the pleading, executed a
special warranty distribution deed transferring the Property to the Family Trust, making the Property
an asset of the Family Trust.  The special warranty distribution deed shows that Jackie was the
trustee of the Family Trust at the time.  In his petition, Fettner asserted that Jackie's attempted devise
of the property to the Center was not valid because it was beyond the scope of the power of
appointment granted to Jackie by the testamentary trust.  In the same petition, Fettner also asserted
that, as trustee, he was the owner in fee simple of the Property and that Cecil Jr. had entered
unlawfully and dispossessed the Trust of the Property.  After his claims were consolidated into the
case in the trial court below, Fettner filed a second amended petition, asserting the same claims as in
the petition to the 333rd District Court. These questions involve determinations affecting the
administration and distribution of a trust as well as questions arising in the administration or
distribution of a trust.  See Tex. Prop. Code Ann. § 115.001(a)(6)-(7); Estate of Dillard, 98 S.W.3d
386, 391 (Tex. App.-Amarillo 2003, pet. denied) (citing Texas Property Code section 115.001(a) and
stating that the extent of a trust's interests (and those of its beneficiaries) in property are issues
affecting the administration of a trust).   

Section 5 of the Texas Probate Code sets forth jurisdiction with respect to probate proceedings.  See
Tex. Prob. Code Ann. § 5 (Vernon Supp. 2009).  When Fettner filed his claims in 2006, the probate
court had concurrent jurisdiction with the district court in all actions involving testamentary trusts and
in all actions by or against a trustee under Texas Probate Code section 5(e).  

Section 5(e) states:

A statutory probate court has concurrent jurisdiction with the district court in all personal injury,
survival, or wrongful death actions by or against a person in the person's capacity as a personal
representative, in all actions by or against a trustee, in all actions involving an inter vivos trust,
testamentary trust, or charitable trust, and in all actions involving a personal representative of an
estate in which each other party aligned with the personal representative is not an interested person
in that estate.

Tex. Prob. Code Ann. § 5(e).[10]  Therefore, when Fettner filed suit in the district court, the probate
and district courts had concurrent jurisdiction over testamentary trusts and actions by a trustee. See
Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446  n.9 (Tex. 1993) (stating that subject-
matter jurisdiction is determined as of the time that suit was filed in the trial court); Dallas County v.
Autry, 251 S.W.3d 155, 159 (Tex. App.-Dallas 2008, pet. denied) (determining trial court's subject-
matter jurisdiction as of time suit was filed and based on law and statutes in force at that time).

Section 5A(b) of the Texas Probate Code deals with matters appertaining to and incident to an
estate.  The statute states, in pertinent part, that except for situations in which the jurisdiction of a
statutory probate court is concurrent with that of a district court as provided by section 5(e), any
cause of action appertaining to an estate or incident to an estate shall be brought in a statutory
probate court.  See Tex. Prob. Code Ann. § 5A(b) (Vernon Supp. 2009).  Because the claims in
Fettner's petition involve a testamentary trust and because this action was brought by a trustee, the
jurisdiction of the probate court is concurrent with that of the district court as provided by section 5
(e).  See id. § 5.  Under section 5A(b), because Fettner's claims fall within section 5(e), jurisdiction is
not mandatory and exclusive in the probate court, even if these claims are appertaining to an estate
or incident to an estate.  See id. § 5A(b).

Cecil Jr. and Jamie contend that Kathleen's 2004 suit filed in the 190th District Court triggered that
court's jurisdiction over this case because her suit and Fettner's suit both challenged Jackie's
ownership or right to devise the Property.  However, in her petition, Kathleen did not request the trial
court to make a determination as to whether the exercise of Jackie's power of appointment was
invalid.  Rather, in her petition, Kathleen states that A[o]n information and belief Plaintiff alleges that
the [Property] belongs to the Gammill Family Trust" and that A[b]y her will, Jackie Marie Gammill
exercised the power of appointment granted to her by the terms of the will of Cecil Elmer Gammill, Sr.,
conveying the assets of the Gammill Family Trust to Daniel, Kathleen, Janice, and John equally."  The
thrust of Kathleen's action was to compel the distribution of Cecil Sr.'s and Jackie's assets, including
the Property, and to hold her sisters accountable for their alleged mismanagement of the Family
Trust.  Kathleen asserted different claims in 2004 than Fettner did in 2006.  Kathleen's claims were
not severed into this case in the trial court below, and they are not before this court on appeal.  We
determine whether the trial court below had subject-matter jurisdiction over Fettner's claims by looking
at the claims and applicable law at the time Fettner filed these claims. See Tex. Ass'n of Bus., 852 S.
W.2d at 446 n.9; Autry, 251 S.W.3d at 159.  The consolidation of these claims into the 2004 case did
not change the fact that Fettner filed these claims in 2006.    

Cecil Jr. and Jaime also argue that Bailey v. Cherokee County Appraisal District controls this case.  
See 862 S.W.2d 581, 582 (Tex. 1993).  In Bailey, the Supreme Court of Texas held that a suit to
collect ad valorem taxes accruing on estate property during an estate administration is a claim against
the estate which should have been filed in the court exercising probate jurisdiction where the
administration was pending.  See id. at 582.  This case is distinguishable from Bailey.  First, Bailey did
not involve a testamentary trust over which the district court and probate court have concurrent
jurisdiction.  Second, Bailey involved the jurisdiction of a county court at law exercising probate
jurisdiction in which an estate was pending and the district court where the taxing authority filed its
claim.  See id. at 582B83, 585.  That situation triggers Texas Probate Code section 5A(a) rather than
section 5A(b).  Section 5A(a) does not contain the sentence in section 5A(b) stating that A[e]xcept for
situations in which the jurisdiction of a statutory probate court is concurrent with that of a district court
as provided by [s]ection 5(e) of this Code or any other court, any cause of action appertaining to
estates or incident to an estate shall be brought in a statutory probate court."  Tex. Prob. Code Ann. §
5A(b); Howe State Bank v. Crookham, 873 S.W.2d 745, 748 (Tex. App.-Dallas 1994, no writ)
(recognizing differences between sections 5A(a) and 5A(b)); Green v. Watson, 860 S.W.2d 238,
243B44 (Tex. App.-Austin 1993, no writ) (observing legislative intent to make sections 5A(a) and 5A
(b) different by making express reference to constructive trusts in one and not in the other).  Under
the unambiguous language of section 5A(b), claims referenced in section 5(e) can be brought in
either the statutory probate court or the district court, and the two courts have concurrent jurisdiction.  
In this case, Fettner chose to file in the district court.  Because the statutes at issue in this case are
materially different from the statutes involved in Bailey, that case is not on point.

Under the statutes relevant to this case, the trial court below had concurrent jurisdiction with the
probate court over Fettner's claims, and Fettner was not required to assert his claims in the probate
court, even if they are claims appertaining to an estate or incident to an estate.  See Tex. Prob. Code
Ann. § 5A(b).  Therefore, the trial court's judgment is not void for lack of subject-matter jurisdiction.  
Accordingly, we overrule the first issue.

B.      Did the trial court grant summary judgment without notice to Cecil Jr. and Jaime?

Under their second issue, Cecil Jr. and Jaime assert that the trial court rendered summary judgment
without notice to them because, they claim, the trial court granted summary judgment as to Fettner's
declaratory-judgment action and his trespass-to-try-title action, even though Fettner only sought
summary judgment as to his declaratory-judgment action.  However, even if the trial court granted
summary judgment as to a claim upon which Fettner did not seek summary judgment, this would not
mean that the trial court granted summary judgment without notice to Cecil Jr. and Jaime.[11]  Fettner
did state in his motion that he was seeking summary judgment as to his claim for declaratory
judgment, and he emphasized this claim in his motion.  Nonetheless, in one paragraph of his motion,
Fettner addressed Texas Rule of Civil Procedure 791, which applies to trespass-to-try-title actions.  
See Tex. R. Civ. P. 791.  Furthermore, a judgment in favor of the plaintiff in a trespass-to-try-title
action must award the plaintiff title or possession, or both, of the property at issue.  See Tex. R. Civ.
P. 804.  In his motion, Fettner asserted that his title was superior to any other party's claims of
ownership and possession of the Property, and he asked the court to render summary judgment
awarding him both title and possession of the Property.  Therefore, Fettner did move for summary
judgment as to both his declaratory-judgment action and his trespass-to-try-title action.  Though Cecil
Jr. and Jaime complain on appeal that Fettner's motion was unclear and ambiguous, they waived this
argument by failing to raise it in the trial court by special exceptions to the motion for summary
judgment.  See Brocail v. Detroit Tigers, Inc., 268 S.W.3d 90, 100B01 (Tex. App.-Houston [14th Dist.]  
2008, pet. denied).  C.     Did Cecil Jr. and Jaime preserve error as to their claim that the trial court
abused its discretion by failing to grant a new trial after Cecil Jr. showed himself entitled to a new trial
based on lack of notice?

Under their second issue, Cecil Jr. and Jaime also argue that the trial court erred in denying Cecil Jr.'s
motion for new trial because they showed they were entitled to a new trial based on lack of notice
under Craddock v. Sunshine Business Lines, Inc.  See 133 S.W.2d 124 (Tex. 1939).  However, Cecil
Jr. based his motion for new trial on what he alleged was “new evidence" supporting the imposition of
a resulting trust in his favor.[12]  In this motion, Cecil Jr. did not allege lack of notice or argue that he
was entitled to a new trial under Craddock.  Cecil Jr. and Jaime did not voice their complaint regarding
lack of notice and their alleged entitlement to a new trial under Craddock in the trial court.  Therefore,
they did not preserve error as to this complaint.[13]  See Tex. R. App. P. 33.1(a); Babajide v. Citibank
(S. D.), N.A., No. 14-04-00064-CV, 2004 WL 2933575, at *1 (Tex. App.-Houston [14th Dist.] Dec. 21,
2004, no pet.) (mem. op.) (holding appellant waived her complaint that trial court gave her no notice
of summary-judgment hearing by not raising the objection in the trial court).  

D.      Does the summary-judgment evidence conclusively prove the matters stated in the
trial court's judgment?

Under their second issue, Cecil Jr. and Jaime also argue that the summary-judgment evidence does
not conclusively prove the matters stated in the trial court's judgment.  After reviewing the summary
judgment under the applicable standard of review, we conclude that the uncontroverted summary-
judgment evidence proves as a matter of law the matters stated in the trial court's judgment.  Cecil Jr.
and Jaime complain that the summary-judgment evidence does not disprove any legal or factual
theory under which Cecil Jr. or Jaime were claiming any right or interest in the Property.  However,
when Fettner filed his motion, Cecil Jr. and Jaime had not filed any claim in this case in which they
asserted any right or interest in the Property.  Though they alluded to their resulting-trust theory in
their summary-judgment response, they proffered no evidence to support this theory prior to the trial
court's granting summary judgment.  Though Cecil Jr. and Jaime attached evidence in their post-
judgment motions, we cannot consider that evidence in determining whether the trial court erred in
granting summary judgment.  See Hicks v. Captain Elliott's Party Boats, Inc., 2006 WL 2669362, at *4
(Tex. App.-Houston [14th Dist.] Sept. 19, 2006, no pet.) (mem. op.).  We conclude that the
uncontroverted summary-judgment evidence supports the trial court's judgment.[14]  Accordingly, we
overrule the second issue.  We affirm the trial court's summary judgment.[15]

E.      Did Cecil Jr. and Jaime preserve error as to their claim that the trial court abused its
discretion by granting a severance that allegedly split a single claim into two cases that
allegedly had overlapping and interrelated facts?

In their third issue, Cecil Jr. and Jaime argue that the trial court erred in granting the severance that
made the partial summary judgment final and appealable.  Cecil Jr. and Jamie  assert that the trial
court abused its discretion because it severed part of a claim, that the severed part would not be the
proper subject of a lawsuit if independently asserted, and that the severed part is so interwoven with
the remaining action as to involve the same facts and issues.  However, Cecil Jr. and Jaime did not
voice this objection to severance in the trial court.  Therefore, they did not preserve error as to this
complaint.[16]  See Tex. R. App. P. 33.1(a); Oistad v. Baker & Hostetler, L.L.P., No. 01-05-00493-CV,
2006 WL 488594, at *7 (Tex. App.-Houston [1st Dist.] Mar. 2, 2006, no pet.) (mem. op.) (holding
appellants waived their complaint that trial court erred in granting severance by not raising that
objection in the trial court).  Accordingly, we overrule the third issue.
                                          
IV.  Conclusion

The trial court had concurrent jurisdiction with the probate court over Fettner's claims, and Fettner did
not have to bring these claims in the probate court.  Therefore, the trial court's judgment is not void
for lack of subject-matter jurisdiction. Cecil Jr. and Jaime did not preserve error as to several of their
appellate complaints.  The uncontroverted summary-judgment evidence supports the trial court's
summary judgment.  Accordingly, we affirm the trial court's summary judgment, its overruling of Cecil
Jr.'s motion for new trial, and its severance order.

/s/      Kem Thompson Frost

Justice

Panel consists of Justices Frost, Brown, and Boyce.
--------------------------------------------------------------------------------

[1]  Cecil Sr.'s will reads as follows: “I give all of the rest, residue and remainder of my interest in any
property which I may own at the time of my death . . . to the Trustee named herein, in trust.  The
assets comprising such gift shall be held in a separate and distinct trust called the “GAMMILL FAMILY
TRUST" under the provisions of this Will."

[2]  Other documents in the record refer to the Property by its street address - 5214 North Freeway,
Houston, Texas.

[3]  In September 2005, Kathleen nonsuited all of her claims against Donisi and her proof of claim in
Cause Number 332,455-401 in the probate court.  

[4]  According to the pleading and accompanying exhibits, in 1991, Cecil Sr. executed a special
warranty deed granting, giving and conveying all of his interest in the Property to Jackie as her sole
and separate property and estate.  In 1995, Jackie granted her interest in the Property back to Cecil
Sr. by a special warranty gift deed.    

[5]  The parties were realigned as David A. Fettner, as Trustee of The Gammill Family Trust versus
Daniel Andrew Gammill, Kathleen Rose Bungard Arnett, Janice Marie Gammill, John Edward Gammill,
Laura May Gammill, Cecil E. Gammill, Jr. and Jaime Martinez. One week later, the presiding judge of
the probate court granted leave to Jaime Martinez, Cecil Jr.'s daughter, to consolidate into the
probate-court case the breach-of-contract and tort claims that Jaime previously had asserted against
various parties in the trial court below.  These claims recently had been severed into Cause Number
2004-55686-A by the trial court below.

[6]  Cecil Jr. and Jamie did not file a counterclaim or other formal pleading in the trial court asserting
that a purchase-money resulting trust should be imposed on the Property.

[7]  Cecil Jr. had no such claims pending in the trial court; however, he filed such an action in the
probate court on March 9, 2007, as Cause No. 332,455-402.  The probate court later granted a plea
to the jurisdiction and dismissed this action for lack of jurisdiction.  Cecil. Jr. has appealed this order,
and the appeal is pending in this court as Cause No. 14-07-01013-CV.

[8]  The 190th District Court eventually ruled on the remaining question concerning whether Jackie
exercised the power of appointment, ordering that she, in fact, did exercise the power of appointment
afforded to her by Cecil Sr.'s will and that the Property be distributed to Daniel Andrew Gammill,
Kathleen Rose Bungard, Janice Marie Gammill, John Edward Gammill and Laura May Gammill,
equally. The order further directed Fettner to sell the lots and distribute the proceeds equally between
those five siblings.  In an unopposed order declaring non-ownership of property, the 190th District
Court found the purported devise of the Property by Jackie was legally ineffective and that, as a
result, the Center did not own the property.  None of these rulings are before this court in this appeal.

[9]  In 2007, the Texas Legislature added that district courts also have original and exclusive
jurisdiction over all proceedings by or against a trustee except for jurisdiction conferred by law on a
statutory probate court.  See Act of May 17, 2007, 80th Leg., R.S., ch. 451, § 11, 2007 Tex. Gen.
Laws 801, 804B5.  Because this addition does not affect the outcome of this case, we cite to the
current version of the statute.

[10]  We note that Texas Probate Code section 5(e) was amended in 2003 and testamentary trusts
were removed from the list of those actions for which the probate and district courts share concurrent
jurisdiction.  See Act of May 27, 2003, 78th Leg., R.S., ch. 1060, § 2, 2003 Tex. Gen. Laws 3052,
3053. In 2005, testamentary trusts and actions by and against a trustee were added to section 5(e)'s
grant of concurrent jurisdiction.  See Act of May 23, 2005, 79th Leg., R.S., ch. 551, § 1, 2005 Tex.
Gen. Laws 1476, 1477.  Fettner filed his claims in the 333rd District Court in June 2006.

[11]  In a motion to continue the summary-judgment hearing, Cecil Jr. and Jaime complained of
insufficient notice due to their attorney's failure to pick up his certified mail until eight days before the
hearing.  However, the trial court denied this motion, and this ruling has not been challenged on
appeal.  In any event, the trial court gave Cecil Jr. and Jaime seven more days to file their summary-
judgment response.  The record reflects that the trial court granted summary judgment with notice to
Cecil Jr. and Jaime.  Furthermore, this complaint of insufficient notice is not the same as a complaint
that the trial court granted summary judgment as to a claim upon which Fettner did not seek summary
judgment.

[12]  Jaime did not join in this motion.

[13]  In their motion to continue the summary-judgment hearing, Cecil Jr. and Jaime complained of
insufficient notice due to their attorney's failure to claim his certified mail until eight days before the
hearing.  See supra, n.11.  However, the trial court denied this motion, and this ruling has not been
challenged on appeal.  In any event, this complaint is not the same as a complaint that there was no
notice or that Cecil Jr. is entitled to a new trial under Craddock.

[14]  Cecil Jr. and Jaime assert that because some beneficiary or beneficiaries of the Family Trust will
be entitled to a distribution of the Property, the trial court erred in concluding that Fettner, as trustee,
had the right to possession of the Property to the exclusion of others and that the trust's title is
primary and superior to any claims to ownership and possession of the Property by other parties as of
the date of the judgment.  However, the trial court's declaration that the Family Trust currently had
superior title and right to possession was not inconsistent with the trustee's duty in the future to
distribute the Property to the beneficiaries according to the terms of the trust and the power of
appointment granted to Jackie.

[15]  Cecil Jr. and Jaime also argue that Jackie did not exercise the power of appointment in her will,
and therefore, the Property must be distributed as otherwise provided in Cecil Sr.'s will.  However, the
trial court did not address in this judgment whether the instructions in the residuary clause of Jackie's
will constituted a valid exercise of the power of appointment.  Therefore, this issue is not before this
court.

[16]  Cecil Jr. and Jaime did object to the severance in the trial court.  However, the only basis
asserted was that the trial court had not yet heard or ruled on their motion to set aside the trial court's
partial summary judgment.  This is not the complaint that they assert on appeal.