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Date: 05-23-2017

Case Style: Elma Garza Gonzalez v. Norma Garza Martinez, Ricardo Garza Gonzalez, Albino Garza Gonzalez, Hugo Garza Gonzalez, Danny Garza Gonzalez, Yesenia Quijana, Julio Cesar Garza Gonzalez and Raul Garza

Case Number: 01-15-00693-CV

Judge: Massengale

Court: Texas Court of Appeals, First District on appeal from the 333rd District Court of Harris County

Plaintiff's Attorney: Joseph Rutherford Willie II

Defendant's Attorney: Gary E. Patterson, Lianna Garza and Timothy A. Hootman

Description: Appellant Elma Garza Gonzalez was sued by her eight siblings for fraud, breach of fiduciary duty, and conversion in connection with the disposition of their
late father’s assets. The trial court granted summary judgment against Elma,
awarding damages to her siblings and declaring void a gift of real property.
On appeal, Elma raises two issues, arguing that the court lacked subjectmatter
jurisdiction and that her siblings’ claims were barred by res judicata and
collateral estoppel. We conclude, under long-standing Texas precedent, that her
siblings lacked standing to sue absent an allegation and proof that administration of
the estate was either closed or unnecessary. We therefore reverse and render
judgment dismissing the case for lack of jurisdiction.
Albino Garza was the father to nine children, who are the parties to this
appeal. He had a sixth-grade education, spoke Spanish, and did not read, write, or
understand English. When he was 77 years old, he lost the ability to manage his
affairs due to dementia and a severe hearing impairment. His daughter, appellant
Elma Garza Gonzalez, lived next door to him. She obtained power of attorney for
him in January 2011, and she used that power to add herself as a signatory and
joint owner of his existing Wells Fargo checking account, which had a balance at
that time of $239,584.87. In April 2012, she persuaded her father to execute a gift
deed transferring to her all of his real property, including six duplexes in Harris
County. She recorded the deed in the real-property records of Harris County. By
August 2012, the Wells Fargo checking account had been reduced to $109.
Appellee Norma Martinez filed an application to be appointed guardian of
the person and the estate of Albino. She alleged that Albino was mentally
incapacitated and that since Elma had taken over his financial affairs, she had
taken more than $200,000. In connection with that proceeding, Albino was
examined by a physician, who concluded that he was totally incapacitated. Norma
obtained a temporary restraining order against Elma, but it was later dissolved, and
that case was dismissed without prejudice.
Albino died intestate in December 2013. Elma thereafter held herself out as
the owner of the real property, which she leased. She did not share the rent with
her siblings. Approximately six months after their father died, Elma’s siblings sued
her to set aside the gift deed and to recover damages for breach of fiduciary duty,
common-law fraud, and conversion or misappropriation of property. They also
sought a declaration that the power of attorney and gift deed were void because
their father lacked mental capacity when he signed those documents.
In their petition, Elma’s siblings alleged that they and she were Albino’s
only children and heirs-at-law, and that he died intestate. They sought a
determination of “their share and interest in the property,” specifically the real
property which had been gifted to Elma and the money she took from the Wells
Fargo checking account. The petition did not mention whether an administration
was pending, necessary, or had been completed, nor did it mention whether Albino
had any debts at the time of his death.
Representing herself, Elma answered the lawsuit, asserting a general denial
without pleading any affirmative defenses. Her answer did not mention anything
about whether an administration of Albino’s estate was pending, necessary, or had
been completed.
Elma’s siblings filed a traditional motion for summary judgment, which
addressed all of the causes of action pleaded in their original petition. Like the
original petition, the motion for summary judgment asserted that Albino died
intestate in December 2013, but it made no mention of any pending or completed
administration, nor did it argue that administration of his estate was unnecessary.
Instead, Elma’s siblings attached summary-judgment evidence that supported their
claims on the merits. They attached requests for admissions, which they contended
were deemed admitted because Elma failed to respond despite being properly
served. Among other things, Elma judicially admitted:
47. That [she] and Plaintiffs are the sole children and heirs-at-law
of the Decedent.
48. That as lawful heirs of the Decedent, Plaintiffs are entitled to
have their share and interest in the property determined by a
court of law.
None of the admissions mentioned administration of the estate or whether Albino
had any debt.
Elma’s siblings also attached an affidavit from Norma, in which she averred
that if not “for Elma’s actions,” her “father’s estate would have remained intact,”
and she and her siblings “would not have been deprived” of their rightful interests
in his real and personal property. Like the other documents, Norma’s affidavit
stated that her father died intestate in December 2013 and that the nine parties to
this case are his only children. Her affidavit did not mention whether Albino left
any debt or anything about an administration of his estate.
Elma did not respond to the motion for summary judgment. On June 4,
2015, the trial court granted summary judgment in favor of Elma’s siblings,
voiding the gift deed and declaring that they and Elma jointly owned the real
property in nine equal shares. The court also awarded actual damages in the
amount of $239,584.87, exemplary damages of $25,000, pre- and postjudgment
interest, attorney’s fees of $25,091.75, and costs of suit.
Two weeks after the court rendered summary judgment, Elma filed a plea to
the jurisdiction. She argued that the court lacked subject-matter jurisdiction
because her siblings lacked standing, and because a statutory probate court had
exclusive jurisdiction under the probate code, making the district court’s judgment
void. For the first time, Elma asserted that an administration of Albino’s estate was
necessary. She also argued that res judicata and collateral estoppel barred her
siblings’ claims relating to Albino’s alleged lack of capacity because they were
raised in Norma’s prior guardianship proceeding.
The trial court did not rule on the plea to the jurisdiction. Elma appealed.
I. Appellate jurisdiction
While this appeal was pending, Elma’s siblings filed a motion to dismiss,
challenging this court’s appellate jurisdiction. They argued that Elma’s notice of
appeal was untimely and deprived this court of jurisdiction.
The filing of a notice of appeal invokes the appellate court’s jurisdiction.
TEX. R. APP. P. 25.1(b). In general, a notice of appeal must be filed within 30 days
after a final judgment is signed. TEX. R. APP. P. 26.1. If a timely motion to modify
the judgment is filed, a notice of appeal may be filed up to 90 days after the
judgment is signed. TEX. R. APP. P. 26.1(a)(2); TEX. R. CIV. P. 329b(g). A court of
appeals “lacks jurisdiction over an appeal when the notice of appeal is not timely
filed.” Penny v. Shell Oil Prods. Co., 363 S.W.3d 694, 697 (Tex. App.—Houston
[1st Dist.] 2011, no pet.) (citing TEX. R. APP. P. 25.1).
Summary judgment was entered on June 4, 2015. The notice of appeal was
filed 68 days later on August 11, 2015. The notice of appeal, thus, would be
untimely unless the plea to the jurisdiction extended the trial court’s plenary power
and the appellate deadlines. See TEX. R. CIV. P. 329b(g). Elma’s siblings contend
that a plea to the jurisdiction informs the court that “any orders that it might sign
are void and of no legal import, not that any judgment or order that has already
been signed should be altered in any way.” They contend that the plea to the
jurisdiction did not seek a substantive change to the final judgment, and therefore it
did not extend the appellate deadlines. Elma argues that she sought a substantive
change in the trial court’s judgment by asking the court to vacate it.
In Lane Bank Equipment Co. v. Smith Southern Equipment, Inc., 10 S.W.3d
308 (Tex. 2000), the Court held that any “timely filed postjudgment motion that
seeks a substantive change in an existing judgment qualifies as a motion to modify
under Rule 329b(g), thus extending the trial court’s plenary jurisdiction and the
appellate timetable.” Id. at 314; see Gomez v. Tex. Dep’t of Criminal Justice, Inst.
Div., 896 S.W.2d 176, 176–77 (Tex. 1995) (holding that filing of document
entitled “bill of review” was sufficient to extend appellate deadlines because it
“assailed the trial court’s judgment”).
More recently, the Supreme Court has stressed the need for courts to look to
the substance of a pleading to determine the relief sought. In re J.Z.P., 484 S.W.3d
924, 925 (Tex. 2016) (per curiam). In J.Z.P., a father moved to modify a childcustody
arrangement, and when the mother and former wife failed to respond, the
trial court entered judgment. 484 S.W.3d at 924. After the expiration of the trial
court’s plenary jurisdiction, the mother filed a “Motion to Reopen and to Vacate
Order,” which the trial court denied. Id. at 924–25. The court of appeals dismissed
the mother’s appeal for want of jurisdiction because the notice of appeal was
untimely filed. Id. at 925. But the Supreme Court considered the substance of the
“Motion to Reopen and to Vacate Order” as a Rule 306a motion which extended
postjudgment appellate deadlines because it sought relief on the grounds that the
mother had not been served with citation or promptly notified of the judgment. Id.
Rule 329b(g) provides that a motion to modify, correct, or reform a
judgment “shall extend the trial court’s plenary power and the time for perfecting
an appeal in the same manner as a motion for new trial.” In this case, although
Elma’s plea asked the court to vacate the judgment in favor of her siblings, the
relief sought was in the nature of a correction because it alerted the court to a
perceived error of law—the rendition of a judgment in the absence of jurisdiction.
Subject-matter jurisdiction may be raised at any time. See Rusk State Hosp. v.
Black, 392 S.W.3d 88, 95 (Tex. 2012).
Since Lane Bank, the Austin court of appeals considered whether a
postjudgment pleading entitled “Objection to Motion for New Trial; Demand for
an Order Setting Aside Judgment; and Motion Pursuant to Texas Rules of Civil
Procedure, Rule 18a” extended the trial court’s plenary power and the appellate
timelines when it expressly asked the court to “vacate and set aside” its judgment
nihil dicit. Kashan v. McLane Co., No. 03-11-00125-CV, 2012 WL 2076821, at *2
(Tex. App.—Austin June 7, 2012, no pet.) (mem. op.). In that case, the appellant
had appeared pro se and had asserted the court’s lack of personal jurisdiction prior
to entry of judgment, and again in a postjudgment pleading. Id. at *1. Because the
“character of a motion is judged by its substance rather than by its form or
caption,” the court of appeals concluded that a request to vacate the trial court’s
judgment “clearly assailed” it and “would have resulted in a substantive change in
the judgment if it had been granted.” Id. at *2.
Elma’s postjudgment plea to the jurisdiction in this case expressly asked the
trial court to vacate the summary judgment and dismiss her siblings’ suit with
prejudice. This assailed the judgment by seeking a substantive change from an
award in favor of Elma’s siblings to a dismissal of their suit. We therefore
conclude that the plea to the jurisdiction was a postjudgment motion that extended
the trial court’s plenary power and the appellate timetable. See Lane Bank, 10
S.W.3d at 314; see also J.Z.P., 484 S.W.3d at 925; Kashan, 2012 WL 2076821, at
Elma had 90 days from the date the trial court entered summary judgment to
file her notice of appeal, and she filed her notice of appeal 68 days after entry of
summary judgment. Accordingly her notice of appeal was timely filed and
properly invoked this court’s jurisdiction.
We overrule Elma’s siblings’ motion to dismiss the appeal.
II. Trial court jurisdiction
In her first issue, Elma argues that the trial court lacked subject-matter
jurisdiction for two reasons. “As a general proposition, before a court may address
the merits of any case, the court must have jurisdiction over the party or the
property subject to the suit, jurisdiction over the subject matter, jurisdiction to
enter the particular judgment, and capacity to act as a court.” State Bar of Tex. v.
Gomez, 891 S.W.2d 243, 245 (Tex. 1994). In the absence of subject-matter
jurisdiction, a court must dismiss the case. Heckman v. Williamson Cty., 369
S.W.3d 137, 150 (Tex. 2012). Elma identifies two jurisdictional flaws: she asserts
that her siblings lacked standing to sue, and she argues that the case was
improperly brought in a district court when the statutory probate court had
exclusive original jurisdiction.
Standing is a component of subject-matter jurisdiction, which appellate
courts review de novo. RSL Funding, LLC v. Pippins, 499 S.W.3d 423, 429 (Tex.
2016); Heckman, 369 S.W.3d at 149–50. Standing focuses on who may bring a
cause of action. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 502 (Tex. 2010);
M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001). It is “never
presumed,” and it “cannot be waived.” Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 443–44 (Tex. 1993). The concept of standing requires that a real
controversy exists between the parties which actually will be determined by the
judicial declaration sought. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845,
849 (Tex. 2005); Wheelbarger v. City of El Lago, 454 S.W.3d 55, 58–59 (Tex.
App.—Houston [1st Dist.] 2014, pet. denied). “The parties must be properly
situated to be entitled to a judicial determination.” Wheelbarger, 454 S.W.3d at 59.
The well-settled general rule is that “heirs cannot sue in their own right as
heirs for property of the estate; the executor or administrator must sue.” Giddings
v. Steele, 28 Tex. 732, 748 (1866); accord Shepherd v. Ledford, 962 S.W.2d 28,
31–32 (Tex. 1998). “Property of the estate” means all of the decedent’s real and
personal property, including estates and interests in land, as well as goods, money,
chattel, evidence of debt, and any actual or potential cause of action. E.g., TEX.
EST. CODE § 22.012 (defining “Estate”); id. § 22.030 (defining “Real property”);
id. § 22.028 (defining “Personal property”); TEX. GOV’T CODE § 311.005(4) (a
statutory reference to “Property” generally “means real and personal property”).
An exception to this general rule arises when an heir alleges and proves that an
administration has been closed, or when no administration is necessary. See, e.g.,
Shepherd v. Ledford, 962 S.W.2d 28, 31–32 (Tex. 1998).
Whether an administration is necessary is a question for the probate court,
which it determines based on proof. TEX. EST. CODE § 306.002(c); see King v.
Estate of Balshaw, No. 01-89-00370-CV, 1990 WL 11977, at *3 (Tex. App.—
Houston [1st Dist.] Feb. 15, 1990, no writ) (mem. op., not designated for
publication). Generally, the “necessity of administration is presumed in every case
unless facts are shown that make the case an exception to the general rule.”
Eastland v. Eastland, 273 S.W.3d 815, 829 (Tex. App.—Houston [14th Dist.]
2008, no pet.) (citing Davis v. Cayton, 214 S.W.2d 801, 804 (Tex. Civ. App.—
Amarillo 1948, no writ)). A court will find that administration is necessary if:
(1) there are two or more debts against the estate;
(2) there is a desire for the county court to partition the estate
among the distributees;
(3) the administration is necessary to receive or recover funds or
other property due the estate; or
(4) the administration is necessary to prevent real property in a
decedent’s estate from becoming a danger to the health, safety,
or welfare of the general public.
TEX. EST. CODE § 306.002(c); see Pratho v. Zapata, 157 S.W.3d 832, 840 (Tex.
App.—Fort Worth 2005, no pet.). “The party opposing administration of the estate
has the burden of proving that no necessity for administration exists.” King, 1990
WL 11977, at *3.
The causes of action alleged by Elma’s siblings were based on the theory
that she “fraudently procured all of Decedent’s real and personal property and
intentionally deprived” them of their rightful interest to his assets. These potential
causes of action existed just prior to Albino’s death, and they were his potential
causes of action. Thus all of Elma’s siblings’ claims—whether they sought to
recover real property, personal property in the form of money previously
withdrawn from the joint checking account, or exemplary damages on a claim for
breach of fiduciary duty—sought recovery of estate property. Elma argues that her
siblings lacked standing to bring these causes of action because there was no
determination of heirship by a probate court and there was no application to
probate Albino’s estate. The lawsuit in this case was filed less than a year after
Albino died and within the four-year period for filing an application for letters of
administration. TEX. EST. CODE § 301.002(a). Elma’s siblings alleged that Albino
died intestate, but they did not allege that no estate administration was pending or
that none was necessary. The motion for summary judgment did not allege or
prove that no administration was pending or that none was necessary. Elma’s
siblings also did not negate the statutory reasons for granting administration, such
as by pleading that there were no debts of the estate. Nothing in the appellate
record supports an exception to the general rule that only an administrator can sue
to recover estate property.
Elma’s siblings did not make any argument against application of the wellsettled
rule that heirs ordinarily cannot sue by their own right for recovery of estate
property. Instead they argue generally that they were injured by Elma’s wrongful
conduct and have a stake in the subject matter of the controversy.
The underlying lawsuit in this case was brought by Elma’s siblings as
Albino’s heirs, during the time for filing an application for letters of
administration, which has not yet expired. They did not plead or prove that an
administration was not pending or not necessary. Without such pleading or proof,
the general rule barring suit by the heirs to recover property of the estate in their
own right applies, and we hold that Elma’s siblings, as heirs, lacked standing to
Alternatively, Elma’s siblings rely on the Uniform Declaratory Judgments
Act to support their assertion of standing. See TEX. CIV. PRAC. & REM. CODE
§§ 37.001–.011. They contend that they are entitled to a declaration of their rights
with respect to the gift deed and the power of attorney based on the UDJA’s
general rule, which states:
A person interested under a deed, will, written contract, or other
writings constituting a contract or whose rights, status, or other legal
relations are affected by a statute, municipal ordinance, contract, or
franchise may have determined any question of construction or
validity arising under the instrument, statute, ordinance, contract, or
franchise and obtain a declaration of rights, status, or other legal
relations thereunder.
Id. § 37.004(a). The UDJA does not confer or enlarge a court’s jurisdiction, but it
is merely a procedural device for deciding cases already within the jurisdiction of
the court. Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015).
As such, the statute cannot bestow standing upon Elma’s siblings to obtain a
declaration of rights with respect to the validity of the gift deed or the power of
attorney when the right to seek any resulting relief has been bestowed upon the
executor or administrator of the estate. Cf. Kennesaw Life & Accident Ins. Co. v.
Goss, 694 S.W.2d 115, 118 (Tex. App.—Houston [14th Dist.] 1985, writ ref’d
n.r.e.) (UDJA creates no expansion of jurisdiction to subject defendant to damages
in suit to remove a cloud on title to property when the defendant would not have
been a proper party under statutory procedure governing trespass-to-try-title
actions); accord Martin v. Amerman, 133 S.W.3d 262, 267 (Tex. 2004) (declining
to authorize UDJA claim for relief governed by trespass-to-try-title statute).
We hold that the district court lacked jurisdiction to enter the final summary
judgment, and this lack of jurisdiction cannot be overcome by repleading. To
demonstrate that no administration is necessary, Elma’s siblings would have to
negate the circumstances in Section 306.002(c). They would have to plead and
prove that (1) there are not two or more debts against the estate; (2) there is no
desire to partition the estate among the distributees; (3) there is no need for
administration to recover funds or other property due the estate; and (4) there is no
need for administration to prevent real property in the decedent’s estate from
becoming a danger to the health, safety, or welfare of the general public. See id.
§ 306.002(c). The central issue in this case is the recovery of funds and other
property allegedly owed to Albino’s estate. Because of this, Elma’s siblings will
not be able to maintain their claims and negate Section 306.002(c)(3) by pleading
that that there is no need for an administration to recover funds or other property
due the estate. This is the essence of their suit. As such, we hold that an
administration is necessary as a matter of law.
We sustain Elma’s first issue. Having concluded that the district court lacked
jurisdiction to enter final summary judgment, we do not need to consider Elma’s
remaining issue. See TEX. R. APP. P. 47.1.

Outcome: We reverse the judgment of the trial court, and we render judgment of
dismissal for want of jurisdiction.

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