Affirmed and Majority and Concurring and Dissenting Opinions filed March
17, 2020.




                                    In The

                   Fourteenth Court of Appeals

                            NO. 14-18-00672-CV

                     WILLIAM CASEY FOX, Appellant
                                      V.

 THOMAS JESSE FOX, INDEPENDENT EXECUTOR OF THE ESTATE
                 OF FRED K. FOX, Appellee

                  On Appeal from the Probate Court No. 1
                           Travis County, Texas
                  Trial Court Cause No. C-1-PB-10-001530

                    MAJORITY OPINION

      Appellant William Casey Fox (“Casey”) appeals the grant of a plea to the
jurisdiction in favor of appellee Thomas Jesse Fox, independent executor of the
estate of Fred K. Fox.1 Casey argues the probate court erroneously determined it
lacked subject matter jurisdiction over his claims. We affirm the judgment.

                                       Background

           Fred K. Fox (“Fred”) had three sons:             Casey, Thomas Jesse Fox
(“Thomas”), and Fred Timothy Fox (“Timothy”). On May 8, 1998, Fred executed
and delivered to Casey a document alleged to be a deed to real property located in
St. Martin Parish, Louisiana. The deed purported to convey a fee simple interest to
Casey in the real property (“the Louisiana Property”). Casey treated the Louisiana
Property as his own and paid property taxes.

           Fred died testate in June 2008, and Thomas qualified as the personal
representative of Fred’s estate later that year. Subsequently, Casey discovered a
“technical defect in the conveyance [of the property] under Louisiana law,” and
asked Thomas and Timothy to “sign correction deeds.” According to Casey,
Thomas and Timothy first agreed but then refused to sign a corrected deed “to
correct the technical defect.” In August 2009, Casey filed a “Notice of Claim
against Estate” in Travis County probate court against Thomas, as independent
executor, “to effectuate the gift and the Warranty Deed dated May 8, 1998 by
Fred” and filed of record in Louisiana.

           Thomas then filed a “Petition for Ancillary Probate of Foreign Testament
and Appointment of Independent Executor” in the district court in St. Martin
Parish, Louisiana. The Louisiana district court ordered that Thomas “be confirmed
as the Independent Executor of the Succession of Fred” in March 2010. Two
months later, Thomas filed a “Petition to Nullify Donation Inter Vivos” and

       1
        The Supreme Court of Texas transferred this case to our court from the Third Court of
Appeals. See Tex. Gov’t Code § 73.001. We are unaware of any conflict between Third Court
of Appeals precedent and that of this court on any relevant issue. See Tex. R. App. P. 41.3.

                                             2
asserted among other things that, because the purported 1998 deed was not
properly executed and was not “in the form prescribed by law[,] it is an absolute
nullity.”   Thomas then filed a motion for summary judgment based on his
argument that the purported deed was void under Louisiana law. The Louisiana
district court signed a judgment on December 13, 2010 (1) granting Thomas’s
summary judgment motion, (2) “annulling, vacating, and setting aside . . . as
absolute nullities” the “purported Donation Inter Vivos executed May 8, 1998,”
(3) declaring Fred “to be the rightful and record owner of the” Louisiana Property,
and (4) ordering the Louisiana Property to “be placed into the testate Succession of
Fred K. Fox, Thomas Jesse Fox, as the Independent Executor, for the correct
administration and disposition of his estate.”

      In the meantime, Casey filed an “Original Petition for Declaratory Judgment
or Reformation” in Travis County probate court in September 2010 and requested
the probate court to (1) declare that the deed “conveyed all of Fred K. Fox’s
interest in the property to” Casey as of the date the deed was signed, (2) sign an
order reforming the deed “to express the true intent of Fred K. Fox to convey the
property to [Casey] in 1998,” and (3) award attorney’s fees. Approximately seven
years later, Casey amended his petition twice. Casey’s second amended petition is
the relevant pleading for our purposes. In the second amended petition, Casey
requested the same relief as in his original petition, but he added a claim for breach
of warranty and an alternative request that the probate court declare that the deed
“functioned as an expression of Fred K. Fox’s testamentary intent and that the
Property vests from the estate to [Casey].”

      Thomas, as independent executor, filed a document entitled “Amended Plea
to the Jurisdiction, Res Judicata, General Denial and Motion to Dismiss,” in which
he argued among other things that “Texas courts have no jurisdiction over

                                          3
Louisiana real estate nor the validity of deeds . . . under Louisiana law and the
validity of gifts under Louisiana law.” He requested the probate court to dismiss
Casey’s suit for want of jurisdiction or grant summary judgment on res judicata
grounds based on the Louisiana district court’s judgment voiding the purported
1998 deed.

      Casey filed a response and argued that Thomas mischaracterized the lawsuit
as one relitigating the Louisiana proceedings. Casey maintained that his suit is
“one determining how the estate of Fred Fox should be administered in light of the
deed and the Louisiana judgment.” Casey asserted the probate court had exclusive
jurisdiction to determine Fred’s intentions concerning the Louisiana Property and
how the property in Fred’s estate should be administered considering Fred
executed a deed to the Louisiana Property in Casey’s favor.

      The probate court signed an order dismissing Casey’s suit for want of
jurisdiction and stating the court “finds it does not have subject matter jurisdiction
over this action, as it involves real property in Louisiana.” Casey filed a timely
appeal.

                                  Issue Presented

      Casey presents one issue. He contends the probate court has jurisdiction to
adjudicate whether a Texas decedent intended to make an inter vivos transfer of
real property, and to fashion an appropriate remedy against the executor, when the
property at issue is located in Louisiana.

                                      Analysis

A.    Standard of Review

      A plea to the jurisdiction challenges a court’s authority over the subject
matter of a claim. City of Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 590

                                             4
(Tex. 2015) (per curiam); Bailey v. Smith, 581 S.W.3d 374, 385 (Tex. App.—
Austin 2019, pet. filed). Whether a court has subject matter jurisdiction is a
question of law we review de novo. Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d
477, 486 (Tex. 2018); Bailey, 581 S.W.3d at 385.

      When a plea to the jurisdiction challenges the pleadings, we must determine
if the plaintiff carried his burden to plead “facts that affirmatively demonstrate the
court’s jurisdiction to hear the case.” Meyers, 548 S.W.3d at 486. In doing so, we
construe the pleadings liberally in favor of the plaintiff and consider the pleader’s
intent. Id. “If the pleadings do not contain sufficient facts that affirmatively
demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate
incurable defects in jurisdiction, the issue is one of pleading sufficiency and the
plaintiff should be afforded the opportunity to amend.” Id. On the other hand, if
the pleadings affirmatively negate the existence of jurisdiction, so that it is
impossible to amend the pleadings to invoke jurisdiction, the plea may be granted
and the suit dismissed without allowing the plaintiff an opportunity to amend. Id.

      When a plea to the jurisdiction challenges the existence of jurisdictional
facts, we consider relevant evidence submitted by the parties when necessary to
resolve the jurisdictional issues raised, even where those facts may implicate the
merits of the cause of action. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex.
2009); Zaatari v. City of Austin, No. 03-17-00812-CV, —S.W.3d—, 2019 WL
6336186, at *3 (Tex. App.—Austin Nov. 27, 2019, no pet. h.). If the evidence
creates a fact issue as to the jurisdictional issue, then it is for the factfinder to
decide. Kirwan, 298 S.W.3d at 622; Zaatari, 2019 WL 6336186, at *3. If the
relevant evidence is undisputed or fails to raise a fact question on the jurisdictional
issue, the trial court rules on the plea to the jurisdiction as a matter of law. Kirwan,
298 S.W.3d at 622. In considering this evidence, we take as true all evidence

                                           5
favorable to the nonmovant and indulge every reasonable inference and resolve
any doubts in the nonmovant’s favor. Id.

B.    Law Applicable to the Parties’ Jurisdictional Arguments

      Casey invokes the Texas Estates Code, which provides that “[a]ll probate
proceedings must be filed and heard in a court exercising original probate
jurisdiction. The court exercising original probate jurisdiction also has jurisdiction
of all matters related to the probate proceeding as specified in Section 31.002 for
that type of court.” Tex. Est. Code § 32.001(a). The term “probate proceeding”
includes, among other things: (1) “the probate of a will, with or without
administration of the estate”; (2) “an application, petition, motion, or action
regarding the probate of a will or an estate administration, including a claim for
money owed by the decedent”; (3) “the settling of a personal representative’s
account of an estate and any other matter related to the settlement, partition, or
distribution of an estate”; and (4) “a will construction suit.” Id. § 31.001(1), (4),
(6), and (7). A matter related to a probate proceeding includes, among other
things, “an action for trial of the right of property that is estate property,” and “any
cause of action in which a personal representative of an estate pending in the
statutory probate court is a party in the representative’s capacity as personal
representative.” Id. § 31.002(a)(6), (c)(2).

      Casey also cites the Uniform Declaratory Judgments Act (“UDJA”). Under
the UDJA, “[a] court of record within its jurisdiction has power to declare rights,
status, and other legal relations whether or not further relief is or could be
claimed.” Tex. Civ. Prac. & Rem. Code § 37.003(a). The UDJA’s “purpose is to
settle and to afford relief from uncertainty and insecurity with respect to rights,
status, and other legal relations; and it is to be liberally construed and
administered.” Id. § 37.002(b). “A person interested under a deed, will, written

                                           6
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). Further, “[a]
person interested as or through an executor or administrator, including an
independent executor or administrator, a trustee, guardian, other fiduciary, creditor,
devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust
or of the estate of a decedent . . . may have a declaration of rights or legal relations
in respect to the trust or estate . . . to determine any question arising in the
administration of the trust or estate, including questions of construction of wills
and other writings.” Id. § 37.005(3).

      The probate court determined it lacked jurisdiction over Casey’s lawsuit
because it “involves real property in Louisiana.” Texas courts notably lack subject
matter jurisdiction to adjudicate title to interests in real property situated outside
Texas. Devon Energy Prod. Co. v. KCS Res., LLC, 450 S.W.3d 203, 216 (Tex.
App.—Houston [14th Dist.] 2014, pet. denied); Trutec Oil & Gas, Inc. v. W. Atlas
Int’l, Inc., 194 S.W.3d 580, 583 (Tex. App.—Houston [14th Dist.] 2006, no pet.)
(citing Holt v. Guerguin, 106 Tex. 185, 189, 163 S.W. 10, 12 (1914)); Kelly Oil
Co. v. Svetlik, 975 S.W.2d 762, 764 (Tex. App.—Corpus Christi 1998, pet.
denied). On the other hand, a Texas court with jurisdiction over the parties may
enforce a party’s personal or contractual obligation that indirectly involves
property in another state, such as when a Texas court compels a party over whom it
has jurisdiction to execute a conveyance of a real property interest located in
another state. Devon Energy, 450 S.W.3d at 216 (citing Tex. & Pac. Ry. Co. v.
Gay, 86 Tex. 571, 589, 26 S.W. 599, 605 (1894)); Hartman v. Sirgo Operating,


                                           7
Inc., 863 S.W.2d 764, 766 (Tex. App.—El Paso 1993, writ denied); see McElreath
v. McElreath, 162 Tex. 190, 345 S.W.2d 722, 727-28 (1961). Whether a lawsuit
falls into the former or latter category generally depends on the extent to which
“resolution of issues specific to the land” are involved.        See York v. Oleum
Operating Co., No. 06-16-00056-CV, 2017 WL 2622797, at *3 (Tex. App.—
Texarkana June 16, 2017, no pet.) (mem. op.); Greenpeace, Inc. v. Exxon Mobil
Corp., 133 S.W.3d 804, 809 (Tex. App.—Dallas 2004, pet. denied). If ownership
of non-Texas real property interests is more than merely incidental or collateral to
the claims, as well as the measure of right of any recovery, then the court lacks
jurisdiction. See Merit Mgmt. Partners I, L.P. v. Noelke, 266 S.W.3d 637, 646-47
(Tex. App.—Austin 2008, no pet.) (citing Kegans v. White, 131 S.W.2d 990, 995
(Tex. App.—Eastland 1939, writ ref’d)). To determine the extent to which title
and possession are involved, we look to the nature of the suit, the injury
complained of, and the relief sought, together with any relevant evidence. Devon
Energy, 450 S.W.3d at 216; Noelke, 266 S.W.3d at 649; see Trutec Oil & Gas,
Inc., 194 S.W.3d at 583-88. Regardless how the claimant frames the pleading
allegations, we examine the “basis of his right to recover judgment,” and if the
“gist” of a claim for damages is based on an adjudication of title to out-of-state real
property interests, then a Texas court lacks jurisdiction. Noelke, 266 S.W.3d at
647 (citing Coughran v. Nunez, 127 S.W.2d 885, 888 (Tex. 1939)).

C.    Application

      We begin with Casey’s live petition, the crux of which rests upon a single
document: the 1998 deed. Among the first assertions in the petition, Casey
characterized the 1998 deed as “the subject matter of this request for relief.” He
alleged that his father, Fred, executed and delivered the 1998 deed, which
conveyed to Casey fee simple interest in the Louisiana Property. Casey attached a

                                          8
copy of the 1998 deed to his petition. Casey alleged that he treated the Louisiana
Property as his own and paid property taxes until and after his father died ten years
later in June 2008. Then, Casey learned that the 1998 deed contained a “technical
defect” under Louisiana law, and his siblings—one of whom, Thomas, as executor
of Fred’s estate—refused to “correct” the defect and re-convey the property to
Casey. Consequently, in 2009 Casey notified Thomas in writing that he claimed
ownership of the Louisiana Property. In the meantime, as Casey acknowledged in
his pleading, a district court in St. Martin Parish, Louisiana, signed a final
judgment on December 13, 2010, declaring the 1998 deed and related recorded
documents void and “absolute nullities.” The Louisiana district court determined
that the 1998 deed did not convey title as a deed. The judgment declared Fred the
owner of the Louisiana Property that was the subject of the 1998 deed and placed
the property “into the testate Succession of Fred K. Fox, Thomas Jesse Fox, as the
Independent Executor, for the correct administration and disposition of his estate.”
Our record does not indicate the Casey appealed the judgment. Almost eight years
later, Casey filed the amended petition here before us in Probate Court No. One of
Travis County, Texas.

      Based on the above factual allegations, Casey asserted three claims for
relief. We examine Casey’s claims and the “basis of his right to recover judgment”
to determine whether ownership of non-Texas real property interests is more than
merely incidental or collateral to his claims, as well as the measure of right of any
recovery. See Noelke, 266 S.W.3d at 646-47. If the “gist” of a claim for damages
is based on an adjudication of title to out-of-state real property interests, then the
Texas probate court lacks jurisdiction. Id.




                                          9
      1.     Declaratory judgment claim

      In support of his first claim, declaratory judgment, Casey reiterated that
Thomas contested the 1998 deed’s validity and refused to correct or reform the
defect. Casey requested the court to (1) declare that the 1998 deed conveyed all of
Fred’s interest in the Louisiana Property to Casey as of May 1998 or, alternatively,
(2) declare that the 1998 Deed expressed Fred’s “testamentary intent” such that the
property “vests from the estate to [Casey].”      Casey sought the latter request
because, as stated in his appellate brief, the 1998 deed is direct evidence that Fred
intended to give the property to Casey and no one else because Fred’s will makes
no mention of it.

      The first requested declaration—that the 1998 deed conveyed all of Fred’s
interest in the Louisiana Property to Casey—is a clear request to adjudicate title to
the Louisiana Property anew and thus involves a “naked question of title” to real
property outside of Texas. See, e.g., Erkan v. Erkan, No. 03-14-00148-CV, 2015
WL 8592693, at *3 (Tex. App.—Austin Dec. 8, 2015, pet. denied) (mem. op.);
Devon Energy, 450 S.W.3d at 216. Therefore, the probate court lacks subject
matter jurisdiction over that claim, and the trial court correctly dismissed Casey’s
declaratory judgment claim as to the first requested declaration. See Meyers, 548
S.W.3d at 486.

      Alternatively, Casey sought a declaration that the 1998 deed functioned as
an expression of Fred’s testamentary intent and that “the Property vests from the
estate to Plaintiff.” This claim, Casey maintains, involves not title but “issues
related to a Texas decedent’s lifetime actions undertaken in Texas, the decedent’s
intentions, a warranty given by the Decedent, and the enforcement of Casey’s
rights against Fred’s estate.” To Casey, ownership of the Louisiana Property is
incidental to his claim and any measure of recovery. Our dissenting colleague

                                         10
agrees and would hold that this claim does not involve adjudication of title but
merely requests a declaration of Fred’s “testamentary intent” and Casey’s rights
with respect to Fred’s estate.

       To the contrary, Casey’s second request for declaratory relief is not so
distinguishable from his first request as to justify treating it differently for
jurisdictional purposes. It too is based on the 1998 deed; Casey wants the court to
declare that, by executing the 1998 deed, Fred expressed a “testamentary intent” to
convey the Louisiana Property to him;2 and, perhaps most important,
unquestionably the stated object of that claim is to vest in Casey title to the
Louisiana Property purportedly transferred by the now nullified 1998 deed. In an
attempt to minimize the extent to which title bears on this case, Casey
acknowledges, as he must, the Louisiana district court’s 2010 judgment voiding the
1998 deed and says this case is not about “legal title.” But we look to the true
basis of the claim and disregard artful pleading. See Noelke, 266 S.W.3d at 647-
48. The relief Casey seeks in his second request for declaratory judgment—he
wants a declaration that the property “vests” in Casey as he contends the 1998 deed
intended—is simply inconsistent with the Louisiana judgment of title in the estate.
Title to the Louisiana property is neither incidental nor merely tangentially related
to Casey’s claims. See York, 2017 WL 2622797, at *4-5; Devon Energy, 450
S.W.3d at 217 (holding that trial court lacked jurisdiction because gravamen of
lawsuit was determination of the parties’ existing property interests in Louisiana);
Trutec Oil & Gas, Inc., 194 S.W.3d at 588-91 (rejecting appellant’s contention that
its action was only “tangentially” related to real property outside Texas; lawsuit
required determination of issues specific to Nigerian real property); Kelly Oil, 975

       2
          The 1998 deed is not a testamentary instrument. It purported, rather, to effect an inter
vivos transfer of real property. Fred did not pass away until ten years later, and it is asserted he
left a written will.

                                                11
S.W.2d at 763-64 (holding outcome of case depended on who owned real property
interests in Mississippi).    Therefore, the probate court lacks subject matter
jurisdiction over Casey’s declaratory judgment claims.

      Casey further suggests that his second request for declaratory judgment
“raised issues attendant to the interpretation of Fred’s will.” The dissenting justice
apparently agrees, based on assertions that Casey seeks a declaration of his “rights
with respect to Fred’s estate” and that Casey “seemingly requests the court to
determine how the Lousiana property . . . should be distributed.” (Dissenting Op.
at 3-4). Yet these propositions find no support in the record because among other
reasons Casey does not request construction of Fred’s will in his pleading. In fact,
Casey’s live amended petition does not mention Fred’s will at all. His declaratory
judgment (and all other) claims rest solely on the void 1998 deed, which for all
legal purposes never existed. Casey also argues that he is free to bring an unjust
enrichment claim against the estate to recover amounts he paid in property taxes,
but again he has asserted no such cause of action.

      Moreover, while we have not been cited to on-point authority from the Third
Court of Appeals, this court in Devon Energy rejected an argument similar if not
identical to Casey’s “testamentary intent” contention in a dispute over ownership
of real property interests in Louisiana. In that case, the claimant’s live pleading
detailed the dispute between the parties over the extent of mineral interests
conveyed by an agreement. Devon Energy, 450 S.W.3d at 217. Like Casey does
here, Devon Energy described the nature of the action as seeking a determination
of the “parties’ intent” with respect to certain Louisiana mineral interests described
in the agreement, as opposed to a “naked question of title.” Id. Devon Energy
requested a declaration of the Louisiana property interests the instrument “intended
to convey.” Id. We rejected the argument and stated, “[i]t is evident, however,

                                         12
that the relief Devon ultimately seeks is the resolution of the disagreement between
it and KCS as to which of them owns the Disputed Properties in Louisiana.” Id.
Casey fails to address Devon Energy in any of his appellate briefs. The cases
Casey cites are distinguishable because Casey is not seeking to enforce a final out-
of-state judgment or compel the estate to comply with a valid contract to convey
out-of-state land.

      2.     Breach of warranty and reformation

      We consider Casey’s second and third claims together. Casey’s second
claim is for “reformation as alternative relief.” Casey again stated that his brothers
refused to reform the 1998 deed to reflect the “true intent of Fred K. Fox to convey
the property to [Casey].” Under his third claim, breach of warranty, Casey alleged
that Fred warranted good title to the property by way of the 1998 deed. According
to Casey, Thomas as the estate’s executor has refused to honor that warranty by
refusing to execute a correction or reformation instrument.

      Casey makes only cursory statements regarding these two claims in his brief
and fails to make an adequate argument. Regardless, the gist of the pleaded breach
of warranty and reformation claims, construed liberally, is an adjudication of title
to the Louisiana Property. Casey’s live amended petition states:

                     Count Two - Reformation as Alternative Relief
            14. As Fred K. Fox’s successors, Thomas Jesse Fox and Fred
      Timothy Fox have refused and continued to refuse to reform the
      Warranty Deed to reflect the true intent of Fred K. Fox to convey the
      property to Plaintiff.
             15. Plaintiff requests an order reforming the Warranty Deed
      to express the true intent of Fred K. Fox to convey the property to
      Plaintiff in 1998.




                                          13
             Count Three - Breach of Warranty as Alternative Relief
             16. Fred K. Fox warranted and guaranteed to Plaintiff that he
      transferred to Plaintiff good title to the Property. Thomas Jesse Fox,
      as personal representative of the Estate of Fred K. Fox, has refused to
      honor Fred K. Fox’s warranty, including by refusing Plaintiff’s
      requests to execute a correction or reformation instrument.
      Accordingly, Plaintiff asserts against Thomas Jesse Fox, as personal
      representative of the Estate of Fred K. Fox, a claim for breach of the
      warranty of title.
            ...
             19. For these reasons, Plaintiff asks that Thomas Jesse Fox
      and Fred Timothy Fox be cited to appear and answer and at trial the
      Court:
            a.   Declare that the Warranty Deed to Plaintiff is a valid
            conveyance of all of Fred K. Fox’s interest in the property
            conveyed.
            b.     In the alternative, reform the Warranty Deed to express
            the true intent of Fred K. Fox to convey the property to Plaintiff
            in 1998.
            c.    In the alternative, award damages for breach of warranty.

      As pleaded, these claims facially involve a “naked question of title” over
which a Texas probate court lacks subject matter jurisdiction. See, e.g., Erkan,
2015 WL 8592693, at *3; Devon Energy, 450 S.W.3d at 216.

                                   Conclusion

      In sum, the alleged 1998 deed lies at the core of Casey’s purported right to
recover judgment against the estate. Ownership of the Louisiana Property is very
much placed in dispute by Casey’s amended petition because his core complaint is
that he has been deprived of his claimed interest in the Louisiana Property. Casey
contends that he has owned the property since 1998 and seeks a declaration to that
effect. He seeks breach of warranty damages necessarily based on an alleged
warranty contained in the 1998 deed declared null and void in 2010 by the

                                        14
Louisiana district court. These claims are based on the purported validity of the
1998 deed and seek resolution of the disagreement between Casey and Thomas as
to who owns the Louisiana property—a matter decided a decade ago in Louisiana.3
Casey’s pleadings coupled with the unrefuted evidence negates jurisdiction, and
the trial court correctly dismissed Casey’s claims for lack of subject matter
jurisdiction.

       We affirm the probate court’s order dismissing Casey’s lawsuit.




                                            /s/     Kevin Jewell
                                                    Justice



Panel consists of Justices Wise, Jewell, and Hassan. (Hassan, J., concurring and
dissenting).




       3
         In addition to challenging the probate court’s subject matter jurisdiction, Thomas also
requested judgment based on res judicata. Given its ruling on jurisdiction, the probate court did
not reach the res judicata defense.

                                               15
