Gammill v. Gammill (Tex.App.- Houston [14th Dist.] Jun. 16, 2009)(Frost)(probate court had
jurisdiction)
REVERSED AND REMANDED: Opinion by
Justice Frost  
Before Justices Frost, Brown and Boyce
14-07-01013-CV Cecil Gammill, Jr. v. John Gammill, Daniel Gammill, Kethleen Gammill Bungard,
Janice Marie Gammill, Laure May Gammill, The Estate of Jackie Marie Gammill, and the Gammill
Family Trust
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Michael James Wood  

Reversed and Remanded and Memorandum Opinion filed June 16, 2009.



In The



Fourteenth Court of Appeals

____________



NO. 14-07-01013-CV

____________



CECIL GAMMILL, JR., Appellant



V.



JOHN GAMMILL, DANIEL GAMMILL, KATHLEEN GAMMILL BUNGARD, JANICE MARIE GAMMILL,
LAURA MAY GAMMILL, THE ESTATE OF JACKIE MARIE GAMMILL, AND THE GAMMILL FAMILY
TRUST, Appellees






On Appeal from the Probate Court No. 2

Harris County, Texas

Trial Court Cause No. 332,455-402


M E M O R A N D U M  O P I N I O N

In a statutory probate court, a brother sued his five siblings, his mother=s estate, and a family trust.
 One of the defendants asserted a plea to the jurisdiction arguing that the probate court lacked
subject-matter jurisdiction.  The probate court agreed and dismissed all claims.  Concluding the
probate court had subject-matter jurisdiction, we reverse the probate court=s order and remand for
further proceedings.



I.  Factual and Procedural Background

Beginning in 2004, various claims were asserted in the 190th District Court of Harris County, Texas
(ADistrict Court@) regarding the Gammill Family Trust (hereinafter AFamily Trust@) and title to
certain real property in Harris County, Texas (hereinafter AProperty@).[1]  On March 9, 2007, while
this litigation was pending in the District Court, plaintiff/appellant Cecil Gammill, Jr. (ACecil Jr.@)
filed suit in the trial court below (AProbate Court@) against defendants/appellees John Gammill,
Daniel Gammill, Kathleen Gammill Bungard, Janice Marie Gammill, Laura May Gammill, the Estate
of Jackie Marie Gammill (AEstate@),[2] and the Family Trust[3] (hereinafter collectively
ADefendants@).  Cecil Jr. asserted claims for (1) trespass to try title, (2) removal of cloud on title,
and (3) adverse possession. Cecil Jr. asserted that, either by an alleged purchase-money resulting
trust or by adverse possession, Cecil Jr. has superior title to the Property.  

In his first amended plea to the jurisdiction, defendant/appellee John Gammill (AJohn@) asserted
that the District Court, rather than the Probate Court, had jurisdiction over Cecil Jr.=s claims.  John
noted that the District Court already had rendered a judgment and argued that the Probate Court
lacked jurisdiction to hear any suit concerning the Property.  John asked that Cecil Jr.=s claims be
dismissed for lack of jurisdiction.  Cecil Jr. argued that the Probate Court had subject-matter
jurisdiction over his claims.

John did not proffer any evidence in support of his first amended plea to the jurisdiction; however,
the Probate Court did hear argument of counsel at a hearing.  At the hearing, John=s counsel
argued as follows:



!       Though the District Court had concurrent jurisdiction with the Probate Court before the claims
were filed in the District Court, the fact that claims were filed first in the District Court gave the
District Court exclusive jurisdiction.

!       Because the District Court had rendered final judgment, the Probate Court lacked jurisdiction
over Cecil Jr.=s claims, and John=s plea to the jurisdiction should be granted under the doctrine of
res judicata.

The Probate Court agreed with John and signed an order granting the plea to the jurisdiction and
dismissing Cecil Jr.=s claims for lack of subject-matter jurisdiction.  

On appeal, Cecil Jr. asserts that the Probate Court erred in dismissing his claims for lack of
subject-matter jurisdiction.  In his first issue, Cecil Jr. claims that the Probate Court had
subject-matter jurisdiction because his claims are Aappertaining to estates@ or Aincident to an
estate@ as those phrases are defined in Texas Probate Code section 5A(b).  In his second issue,
Cecil Jr. contends that the Probate Court erroneously determined that it lacked subject-matter
jurisdiction because the District Court litigation was filed first.

II.  Standard of Review



We review de novo a trial court=s ruling on a plea to the jurisdiction.  Tex. Dep=t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).  When a party has filed a plea to the jurisdiction
challenging the pleadings, a reviewing court must construe the pleadings liberally in favor of the
pleader and look to the pleader=s intent.  See id.  If the facts alleged affirmatively demonstrate the
trial court=s jurisdiction to hear the cause, the plea to the jurisdiction must be denied.  See id.  If the
pleadings do not contain sufficient facts to affirmatively demonstrate the trial court=s jurisdiction,
but do not affirmatively demonstrate incurable defects in the jurisdiction, the issue is one of
pleading sufficiency and the plaintiffs should be afforded the opportunity to amend.  See id.  If the
pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be
granted without allowing an opportunity to amend.[4]  See id. at 227.   In ruling on a plea to the
jurisdiction, a court does not consider the merits of the parties= claims.  See id. at 226B28; County
of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).  

III.  Analysis

A.      Does the Probate Court have subject-matter jurisdiction over Cecil Jr.=s claims?

The Probate Court Ahas jurisdiction over any matter appertaining to an estate or incident to an
estate and has jurisdiction over any cause of action in which a personal representative of an estate
pending in the statutory probate court is a party.@  Tex. Prob. Code Ann. ' 5(h) (Vernon Supp.
2009).  The terms Aappertaining to an estate@ and Aincident to an estate@ include, among other
things, all claims by or against an estate, all actions for trial of title to land, all actions for trial of the
right of property, all actions to construe wills, and the interpretation and administration of
testamentary trusts.  See id. ' 5A(b).  Statutory probate courts have concurrent jurisdiction with
district courts in all actions involving a testamentary trust.  See id. ' 5(e). In this suit, Cecil Jr.
asserts that Cecil Sr., in his will, purported to place the Property in the Family Trust and to give
Cecil Sr.=s wife Jackie Marie Gammill (AJackie@) a power of appointment regarding the Property
and that Jackie, in her will, attempted to devise the Property.  Nonetheless, Cecil Jr. asserts that his
title to the Property is superior to that of the Estate and the Family Trust.  Because Cecil Jr.=s
action involves a testamentary trust and the construction of wills, we conclude that the Probate
Court has subject-matter jurisdiction over Cecil Jr.=s claims. See id. '' 5, 5A.



B.      Did the prior filing of claims in the District Court deprive the Probate Court of subject-matter
jurisdiction?

John has asserted that, though the District Court had concurrent jurisdiction with the Probate Court
before the claims were filed in the District Court, the prior filing in the District Court gave that court
exclusive jurisdiction, and therefore, the Probate Court lacks subject-matter jurisdiction.  When
cases involving the same subject matter are pending in different courts that have concurrent
jurisdiction, the first-filed case takes precedence unless an exception to the general rule applies.  
See Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001).  In any event, the existence of the first-filed
case does not deprive the court in which the second case is filed of subject-matter jurisdiction.  See
Mower v. Bower, 811 S.W.2d 560, 563 n.2 (Tex. 1991); Tovias v. Wildwood Props. P=ship, L.P., 67
S.W.3d 527, 529 (Tex. App.CHouston [1st Dist.] 2002, no pet.).  Therefore, even if the claims in the
District Court were filed before the claims in the Probate Court, the Probate Court would not lose its
subject-matter jurisdiction over the claims in the Probate Court.  See Mower, 811 S.W.2d at 563
n.2; Tovias, 67 S.W.3d at 529.   

C.      Does the District Court=s rendition of a final and appealable judgment deprive the Probate
Court of subject-matter jurisdiction under the doctrine of res judicata?

John also argued that, because the District Court had rendered a final and appealable judgment,
the Probate Court lacked subject-matter jurisdiction over Cecil Jr.=s claims under the doctrine of
res judicata.  Presuming, without deciding, that the doctrine of res judicata is applicable, its
application would go to the merits of Cecil Jr.=s claims and would not deprive the Probate Court of
subject-matter jurisdiction.   See Dessens v. Dessens, No. 14-03-00139-CV, 2004 WL 2590580, at
*4 (Tex. App.CHouston [14th Dist.] Nov. 16, 2004, pet. denied) (mem. op.).



D.      Was the substance of John=s plea a plea in abatement requesting dismissal under the
doctrine of dominant jurisdiction?

Because John=s arguments lack merit and because the Probate Court has subject-matter
jurisdiction, the Probate Court erred in dismissing Cecil Jr.=s claims for lack of subject-matter
jurisdiction.  However, John asks, in the alternative, that we treat his plea to the jurisdiction as a
plea in abatement seeking dismissal under the doctrine of dominant jurisdiction, because John
purportedly assigned the wrong title or form to his plea.  John is correct that courts give effect to
the substance of a plea or motion rather than its form or title.  See State Bar of Tex. v. Heard, 603
S.W.2d 829, 833 (1980).  Therefore, we examine the law regarding the doctrine of dominant
jurisdiction as well as the substance of John=s plea.

When cases involving the same subject matter are brought in different Texas courts, the general
rule is that the first court in which suit is filed acquires dominant jurisdiction and should proceed,
while the other courts should either abate or dismiss the later-filed case or cases.  See Miles v.
Ford Motor Co., 914 S.W.2d 135, 138 (Tex. 1995).  This rule is grounded on the principles of
comity, convenience, and the need for orderly procedure.  See id.  Even if the court of the first-filed
suit has dominant jurisdiction, this does not deprive the other court or courts of subject-matter
jurisdiction.  See Mower, 811 S.W.2d at 563 n.2.  Indeed, there are various exceptions to the
general rule of dominant jurisdiction under which the first-filed case does not take precedence.  For
example, the general rule does not apply if (1) a party=s conduct estops it from asserting dominant
jurisdiction, (2) if joinder of all parties in the first-filed case is infeasible or impossible, or (3) if the
plaintiff in the first-filed case is not intent on prosecuting his claims.  See Perry, 66 S.W.3d at 252.  
In sum, the doctrine of dominant jurisdiction arises when cases involving the same subject matter
are pending in more than one Texas court, each of which has subject-matter jurisdiction, and the
need arises to determine which of the cases should take precedence.  See Miles, 914 S.W.2d at
138;  Mower, 811 S.W.2d at 563 n.2.  



In his plea and argument thereon before the Probate Court, John asserted arguments that the
Probate Court lacked subject-matter jurisdiction.  John did not mention the term Adominant
jurisdiction@ or argue that the trial court should abate or dismiss under this doctrine.  Rather, John
requested the Probate Court to dismiss Cecil Jr.=s claims for lack of subject-matter jurisdiction.  
The Probate Court granted John=s plea and dismissed for lack of subject-matter jurisdiction.  See
Reiss v. Reiss, 118 S.W.3d 439, 441B42 (Tex. 2003) (stating that courts must construe trial court
orders based on their unambiguous language).  To support his argument, John relies on Speer v.
Stover.  See 685 S.W.2d 22, 23 (Tex. 1985).  However, in Speer though the plea was styled a
Aplea in abatement,@ the trial court expressly stated that it was dismissing for lack of
subject-matter jurisdiction, and the Texas Supreme Court determined that the substance of the plea
was a plea to the jurisdiction.  See id.  Therefore, Speer is not on point.  See Tovias, 67 S.W.3d at
529 (distinguishing Speer).  We conclude that the substance of John=s plea was a request for a
dismissal based on lack of jurisdiction rather than a request for dismissal based on the doctrine of
dominant jurisdiction.[5]  See Tovias, 67 S.W.3d at 529.

E.      Is the Probate Court=s error harmless because the case should have been dismissed under
the doctrine of dominant jurisdiction?



In the alternative, John also asserts that, even if he did not ask the Probate Court to dismiss under
the doctrine of dominant jurisdiction, this doctrine requires dismissal either following a request by
John or sua sponte under an exercise of the Probate Court=s inherent power.  This argument
incorrectly equates all dismissal orders.  See Apollo Prop. Partners, LLC v. Diamond Houston I, No.
14-07-00528-CV, 2008 WL 3017549, at *3 n.5 (Tex. App.CHouston [14th Dist.] Aug. 5, 2008, no
pet.) (mem. op.).  The Probate Court=s order, if affirmed, would preclude re-litigation of its
determination that the Probate Court lacks subject-matter jurisdiction over Cecil Jr.=s claims.  See
Nguyen v. Desai, 132 S.W.3d 115, 118 (Tex. App.CHouston [14th Dist.] 2004, no pet.);
Restatement (Second) of Judgments ' 27 cmt. b (1982).  If the Probate Court had dismissed these
claims after determining that the District Court case should take precedence under the doctrine of
dominant jurisdiction, the effect of that dismissal would be to bar re-litigation of that determination,
and there would be no determination that the Probate Court lacked jurisdiction.  See Apollo Prop.
Partners, LLC, 2008 WL 3017549, at *3 n.5.

In addition, because the Probate Court has not determined whether the case in the District Court
takes precedence under the doctrine of dominant jurisdiction and if so, whether Cecil Jr.=s claims
should be abated or dismissed, it would be premature for this court to address whether it would be
proper for the Probate Court to dismiss Cecil Jr.=s claims under this doctrine.  

We conclude that the Probate Court=s error probably caused the rendition of an improper
judgment and therefore was not harmless.  See id.  Accordingly, we sustain Cecil Jr.=s two issues,
reverse the Probate Court=s judgment, and remand for further proceedings consistent with this
opinion.[6]



/s/      Kem Thompson Frost

Justice







Panel consists of Justices Frost, Brown, and Boyce.



--------------------------------------------------------------------------------

[1]  An appeal relating to this District Court litigation is pending in this court as Cause No.
14-07-00705-CV.

[2]  An estate itself is not a legal entity and therefore cannot sue or be sued.  Henson v. Estate of
Crow, 734 S.W.2d 648, 649 (Tex. 1987).

[3]  Cecil Jr. sued the Family Trust rather than its trustee.  A trust is not a legal entity.  H.E.Y. Trust
v. Popcorn Express Co., Inc., 35 S.W.3d 55, 60 n.5 (Tex. App.CHouston [14th Dist.] 2000, pet.
denied).

[4]  In his plea to the jurisdiction, John did not challenge the existence of jurisdictional facts using
evidence; therefore, the standard of review for that situation does not apply.  See Miranda, 133
S.W.3d at 227.

[5]  In the alternative, John asserts that Cecil Jr. did not preserve error in the Probate Court
because Cecil Jr. failed to argue that a plea to the jurisdiction was an incorrect vehicle for asserting
the doctrine of dominant jurisdiction.  However, John did not assert the doctrine of dominant
jurisdiction, and Cecil Jr. did oppose John=s plea requesting a dismissal for lack of subject-matter
jurisdiction.  Cecil Jr. was not required to suggest alternative arguments or pleas by which John
might seek dismissal of Cecil Jr.=s claims.

[6]  Our decision today does not preclude any party on remand from asserting the doctrine of
dominant jurisdiction, and we do not comment in any way on the merits of such an argument.