                                                                                          ACCEPTED
                                                                                      12-15-00004-CV
                                                                         TWELFTH COURT OF APPEALS
                                                                                       TYLER, TEXAS
                                                                                 5/29/2015 9:52:24 AM
                                                                                        CATHY LUSK
                                                                                               CLERK

                            No. 12-15-00004-CV

                                                       FILED IN
                                    ORAL ARGUMENT NOT REQUESTED
                                                               12th COURT OF APPEALS
                                                                    TYLER, TEXAS
                                    In the                     5/29/2015 9:52:24 AM
                                                                    CATHY S. LUSK
                                                                        Clerk
                       Twelfth Court of Appeals


Ron Seale, Individually and as the Representative of the Estate of Clara
                            Lavinia Seale
                                                 Appellant

                                      v.

               Horace Truett Seale and wife, Nan Seale

                                                         Appellee




            Truett Seale and Nan Seale’s Brief in Response


                              Marisa M. Schouten
                             Bar I. D. No. 24039163
                             Martin Walker, P.C.
                             121 N. Spring Avenue
                              The Arcadia Theater
                              Tyler, Texas 75702
                           (903) 526-1600 Telephone
                            (903) 595-0796 Telefax

               Attorney for Appellees, Truett Seale and Nan Seale
                  IDENTITY OF PARTIES AND COUNSEL

      The following is a complete list of all parties, as well as names and addresses

of all counsel:

PARTIES                                       COUNSEL

Appellant/Plaintiff:                          For Appellant:

Ron Seale                                     Richard L. Ray
                                              State Bar No. 16606300
                                              Victoria Ray Thatcher
                                              State Bar No. 24054462
                                              Ray & Thatcher, Attorneys at Law, P.C.
                                              300 S. Trade Days Blvd.
                                              Canton, Texas 75103
                                              (903) 567-2051 Telephone
                                              (903) 567-6998 Telefax
                                              rlray@rayandthatcher.com

Appellees/Defendants:                         For Appellees:

Horace Truett Seale and wife, Nan Seale       Appellate Counsel:
                                              Marisa Schouten
                                              State Bar No. 24039163
                                              Martin Walker P.C.
                                              121 N . Spring Avenue
                                              The Arcadia Theater
                                              Tyler, Texas 75702
                                              (903) 526-1600 Telephone
                                              (903) 595-0796 Telefax
                                              mschouten@martinwalkerlaw.com




                                          i
     Trial Counsel:
     John (Jack) F. Walker, II
     State Bar No. 00785167
     Martin Walker P.C.
     121 N . Spring Avenue
     The Arcadia Theater
     Tyler, Texas 75702
     (903) 526-1600 Telephone
     (903) 595-0796 Telefax
     jwalker@martinwalkerlaw.com




ii
                                         TABLE OF CONTENTS

List of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

I.       The Requested Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.      Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III.     Reply to Issue Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

         1. The judge properly dismissed the case for lack of subject matter
         jurisdiction in the Van Zandt County Court at Law.

IV.      Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

         1. The current suit, for recovery of land, filed in county court at law along
         with a notice of lis pendens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

         2. Ron Seale filed suit twice before about the Van Zandt County property. 5

                  a. A chronology of events, detailing ownership history and litigation
                  history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

                  b. The first suit was filed in 2002, was tried in District Court, and
                  resulted in directed verdict, from which plaintiff attempted to cure by
                  nonsuit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

                  c. The second suit was filed in 2011, and immediately nonsuited . . . 8

V.       Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

VI.      Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

VII. Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

         1. The allegations in plaintiff’s petition reveal that the gist is a
         suit for recovery of land. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

                                                            iii
        2. The statute that grants jurisdiction to the county court at law is clear:
        there is no jurisdiction in the Van Zandt County Court at Law for a suit to
        recover land. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

        3. The Tyler Court of Appeals spoke to this exact issue in Bishop v.
        TransCanada Keystone Pipe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

        4. The county court at law was without authority to do anything other than
        dismiss this case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

VIII. Conclusion and Prayer for Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

IX.     Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17




                                                          iv
                                  APPENDIX

1.   Order dismissing case for lack of subject matter jurisdiction, signed
     December 16, 2014.
     CR 1:74.

2.   Pertinent provisions of the Texas Government Code

3.   Bishop v. TransCanada Keystone Pipeline, 2014 Tex. App. LEXIS 1140
     (Tex. App.—Tyler 2014, no pet. )




                                        v
                                          AUTHORITIES

Cases:

Bishop v. Transcanada Keystone Pipeline, L.P.,
      2014 Tex. App. LEXIS 1130 (Tex. App.—Tyler 2014, no pet.) . . . . . . 9, 14

Bland ISD v. Blue,
      34 S.W.3d 547, 555 (Tex. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Carroll v. Carroll,
     304 S.W.3d 366 (Tex. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

City of Houston v. Rhule,
      417 S.W.3d 440 (Tex. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Dubai Pet. Co. v. Kazi,
     12 S.W.3d 71 (Tex. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Heckman v. Williamson Cty.,
     369 S.W.3d 137 (Tex. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Mission Consol. ISD v. Garcia,
      372 S.W.3d 629 (Tex. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

State v. Sledge,
       36 S.W.3d 152 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) . . . . . 10

Tex. Dep’t of Parks & Wildlife v. Miranda,
      133 S.W.3d 217 (Tex. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Texas Nat. Res. & Conserv. Comm’n v. White,
      46 S.W.3d 864 (Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




                                                    vi
Rules, Statutes & Other Authorities:

TEX. GOV’T CODE ANN. §25.003 (Vernon 2015) . . . . . . . . . . . . . . . . . . . . . . . . . 12

TEX. GOV’T CODE ANN. §25.2362 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

TEX. GOV’T CODE ANN. §26.043 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12




                                                   vii
                        I. THE REQUESTED RELIEF

      Truett and Nan Seale ask this Court to affirm the trial court’s judgment.

                       II. STATEMENT OF THE CASE

Nature of the Case              This arises out of a dispute over ownership of 157
                                1/3 acres of real property located in Van Zandt
                                County.

Trial Court’s Disposition       Ron Seale filed suit in the Van Zandt County
                                Court at Law on February 2, 2012. CR 6-13.

                                On October 10, 2014, Truett and Nan Seale filed a
                                motion to dismiss for lack of jurisdiction. CR 28-
                                51.

                                On December 16, 2014, the trial court dismissed
                                the case for lack of jurisdiction.




                                         1
                   III. REPLY TO ISSUES PRESENTED

1.   The judge properly dismissed the case for lack of subject matter jurisdiction
     in the Van Zandt County Court at Law.




                                        2
                           IV. STATEMENT OF FACTS

       This is a dispute arising out of ownership of 157 1/3 acres of real property

in Van Zandt County (the “Van Zandt County Property”). CR 1:28-29.

Specifically, Ron Seale is one of five children to Angus and Clara Seale, and Ron

Seale believes he should have gotten 1/5 interest to the Van Zandt County

Property upon his parents’ passing. However, this property was sold in 1999 to

Truett and Nan Seale, well before either parent passed, and Truett and Nan Seale

own it in fee simple. CR 1:28-29.

       This is the third time Ron has filed suit on this issue. CR 1:6, 29-30, and

SCR 1:99, 102, 143.1

1. The current suit, for recovery of land, filed in county court at law, along
with a notice of lis pendens.

       Ron Seale, in his individual capacity and as a representative of the Estate of

Clara Lavinia Seale, (collectively, “Ron Seale”) sued Truett and Nan Seale under

the declaratory judgment act regarding the Van Zandt County Property in the

County Court at Law on February 2, 2012. CR 1:6-12.

       Ron Seale’s bare-bones contentions are: (1) Clara Seale was the sole owner

in fee simple of the Van Zandt County Property, that (2) Clara Seale never


       1
       Clerk’s Record, Volume 1 shall be cited as “CR 1:___”. Supplemental Clerk’s Record,
Volume 1 shall be cited as “SCR 1:___”.

                                             3
conveyed the property to Truett and Nan Seale and did not receive payment from

them, that (3) Angus Seale conveyed the property to Truett and Nan Seale on

August 9, 1999, and that (4) Truett and Nan Seale took possession of the property.

CR 1:6-12.

      In his petition, Ron Seale requested the following relief from the county

court at law: (1) render a judgment declaring Truett and Nan Seale to have no right

at law or equity in the Van Zandt County Property, (2) or alternatively, declare the

specific nature and value of Truett and Nan Seale’s interest, and (3) to award rents

and profits to Ron Seale. CR 1:6-12. The petition attaches a warranty deed and site

map. CR 1:13.

      Ron Seale does not clearly set forth any particular cause of action, does not

set forth his basis for relief, does not explain why it’s okay to file this suit so long

after the events giving rise to suit allegedly occurred, and does not set forth how

he has standing to sue on behalf of the estate of Clara Seale, or how he has any

individual interest or right to the land. CR 1:6-12.

      But, Ron Seale did file a notice of lis pendens on the Van Zandt County

property. CR 1:18-19.




                                            4
2. Ron Seale filed suit twice before about the Van Zandt County property.

        Ron Seale filed suit twice before regarding the Van Zandt County property,

a brief history of which follows below:

a. A chronology of events, detailing ownership history and litigation history.

 Date            Description of Event
 5/8/1959        Angus Seale purchased two, 80-acre tracts (160 acres) from his
                 father, J.J. Seale, and owned it as “special” community property.
                 Two acres of this was homesteaded. CR 1:29-30.
 7/27/1977       Clara Seale executed her will, leaving all of her property to her
                 husband, Angus Seale. SCR 1:89.
 8/9/1999        Angus sold the Van Zandt County Property, 157.3 acres
                 (comprised of 155.3 acres plus the 2 homesteaded acres) to
                 Truett and Nan Seale. SCR 1:59-83.
 4/30/2001       Clara Seale passed away. SCR 1:94.
 2/11/2003       Will was admitted to probate. Paulette Seale, as independent
                 executrix, probated Clara Seale’s will, which left all possessions
                 and interests to Angus Seale. CR 1:29-30.
                 Ron Seale filed suit for the first time:
 6/14/2002
                 1. Cause No. 02-00454, In the Estate of Clara Lavinia Seale, in
 12/20/2002      the County Court of Van Zandt County (“Application for Letters
                 of Administration”), and

                 2. Cause No. 02-01016, Ron Seale, Individually and as the
                 Representative of the Estate of Clara Lavinia Seale vs. Horace
                 Truett Seale and wife Nan Seale and Angus Seale, In the 294th
                 Judicial District Court of Van Zandt County(Plaintiff’s Original
                 Petition).

                 Taken together, these two suits amounted to a will contest and a

                                           5
                 trespass to try title action for the Van Zandt County Property.
                 SCR 1:99-107.
 1/29/2008       Trial on the first suit Ron Seale filed, and the district court
                 granted directed verdict as to the issue of will contest, and was
                 about to grant directed verdict on the issue of standing when Ron
                 Seale’s counsel announced a nonsuit in open court. SCR 1:129-
                 141.
 6/17/2011       Ron Seale files suit for the second time, Cause No.11-00468.
                 SCR1:143.
 6/20/2011       Ron Seale files nonsuit for the second lawsuit, stating it was filed
                 “in error”. SCR 1:159.
 2/2/2012        Ron Seale files suit for the third time, Cause No. CV-04647, in
                 the County Court at Law for Van Zandt County, Texas. CR 1:6.


b. The first suit was filed in 2002, was tried in District Court, and resulted in
directed verdict, from which plaintiff attempted to cure by nonsuit.

      On June 14, 2002, Ron Seale filed an Application for Letters of

Administration, and on December 20, 2002, Ron Seale filed suit individually and

on behalf of the estate of Clara Lavinia Seale against Truett and Nan Seale and

Angus Seale, which were later consolidated (referred to as “the first suit”). SCR

1:99-107. In the first suit, Ron Seale initiated (1) a will contest and (2) a trespass

to try title regarding his belief that he inherited a 1/5th interest in his mother’s

interest in the Van Zandt County Property. SCR 1:99-107.

      In January 2008, the Court tried “the first suit” to a jury. SCR 1:129-141.

These cases were tried in a consolidated fashion, and Ron Seale put on all of his

                                            6
evidence, attempting to contest the will and claiming that there was undue

influence on Clara Seale in execution of the will, and that the deed should be

cancelled. SCR 1:129-141. Specifically, Ron wanted to be declared owner of 1/5

interest in the property at issue. SCR 1:129-141.

      At the conclusion of Ron Seale’s evidence, Ron Seale rested. SCR 1:129-

141. After Ron Seale rested, defendants moved for directed verdict on the issue of

will contest. SCR 1:129-141. After hearing all of Ron’s evidence and the argument

of counsel, the trial court granted directed verdict on the issue of will contest:

      THE COURT: Court’s going to grant the directed verdict as to the

issue of will contest.

SCR 1:135.

      Defendant also moved for directed verdict on the issue of standing. SCR

1:129-141. Specifically, Ron Seale did not have standing to bring suit on behalf of

the estate of Clara Seale, to cancel the deed or to otherwise declare that Clara’s

property did not pass in the 1999 deed. SCR 1:129-141. Counsel for Ron Seale

asked the Court for additional time to find his research at his office, and the Court

gave him seven minutes. SCR 1:139. When counsel for Ron Seale returned, he

announced nonsuit of all causes of action. SCR 1:140.




                                           7
       Counsel for Ron Seale filed a notice of nonsuit, and the nonsuit was devoid

of any statement about whether it was taken with or without prejudice. SCR 1:124-

127.

c. The second suit was filed in 2011, and immediately nonsuited.

       On June 17, 2011, Ron Seale filed suit a second time, on these exact issues,

Cause No. 11-00468, Ron Seale, Individually and as the Representative of the

Estate of Clara Lavinia Seale v. Horace Truett Seale and wife, Nan Seale. SCR

1:143. In a letter dated July 13, 2011, counsel for Ron Seale admits that this

second lawsuit was filed “in error” and that he filed a notice of nonsuit on June 20,

2011, dismissing the case. SCR 1:159.




                                          8
                        V. SUMMARY OF ARGUMENT

      The sole issue on appeal is whether the county court at law has jurisdiction

to determine a suit for recovery of land.

      The statute granting jurisdiction to the Van Zandt County Court at Law does

not extend to a suit for recovery of land.

      Accordingly, the Van Zandt County Court at Law was without authority to

do anything other than dismiss the case.

                          VI. STANDARD OF REVIEW

      Whether a court has subject matter jurisdiction is a question of law. Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Bishop v.

Transcanada Keystone Pipeline, L.P., 2014 Tex. App. LEXIS 1130, *3-4 (Tex.

App.—Tyler 2014, no pet.). Because the trial court ruled that it lacked jurisdiction,

this appeal presents a pure question of law and thus a de novo standard of review

applies.




                                             9
                    VII. ARGUMENT AND AUTHORITIES

      The sole issue on appeal is whether the trial court abused its discretion in

dismissing the case for lack of subject matter jurisdiction. Appellant’s Br. at 1.

      The Court must decide whether plaintiff has affirmatively demonstrated this

court’s jurisdiction to hear this suit, based on the facts alleged by plaintiff and,

when necessary to resolve jurisdictional facts, on evidence submitted by the

parties. Texas Nat. Res. & Conserv. Comm’n v. White, 46 S.W.3d 864, 868 (Tex.

2001); Bland ISD v. Blue, 34 S.W.3d 547, 555 (Tex. 2000); State v. Sledge, 36

S.W.3d 152, 155 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).

1. The allegations in plaintiff’s petition reveal that the gist is a suit for
recovery of land.

      Ron Seale, in his individual capacity and as a representative of the Estate of

Clara Lavinia Seale, (collectively, “Ron Seale”) sued Truett and Nan Seale under

the declaratory judgment act regarding the Van Zandt County Property in the

County Court at Law on February 2, 2012. CR 1:6.

      Ron Seale’s bare-bones contentions are: (1) Clara Seale was the sole owner

in fee simple of the Van Zandt County Property, that (2) Clara Seale never

conveyed the property to Truett and Nan Seale and did not receive payment from

them, that (3) Angus Seale conveyed the property to Truett and Nan Seale on


                                           10
August 9, 1999, and that (4) Truett and Nan Seale took possession of the property.

CR 1:6.

      Ron Seale asks this Court to (1) render a judgment declaring Truett and Nan

Seale to have no right at law or equity in the Van Zandt County Property, (2) or

alternatively, declare the specific nature and value of Truett and Nan Seale’s

interest. and (3) to award rents and profits to Ron Seale. CR 1:6.

      Further, it’s clear from the transcript of the directed verdict that the District

Court granted directed verdict as to the will contest. SCR 1:129-141. There is no

probate issue in this proceeding.

      Very clearly, this is only a suit for the recovery of land.

2. The statute that grants jurisdiction to the county court at law is clear: there
is no jurisdiction in the Van Zandt County Court at Law for a suit to recover
land.

      In determining the jurisdiction of the Van Zandt County Court at Law, the

Court must look to three provisions of the Texas Government Code– §25.003,

§25.2362(a), and §26.043. A plain reading of the statute reveals that this Court

does not have jurisdiction over a suit for the recovery of land. The pertinent

provisions read as follows:

      § 25.0003. Jurisdiction

      (a) A statutory county court has jurisdiction over all causes and

                                          11
proceedings, civil and criminal, original and appellate, prescribed by law for

county courts.

      § 25.2362. Van Zandt County Court at Law Provisions

      (a) In addition to the jurisdiction provided by Section 25.0003 and other

law, and except as limited by Subsection (b), a county court at law in Van Zandt

County has concurrent jurisdiction with the district court in:

      (1) felony cases...

      (2) Class A and Class B misdemeanor cases;

      (3) family law matters;

      (4) juvenile matters;

      (5) probate matters;

      (6) guardianship matters; and

      (7) appeals from the justice and municipal courts.

      § 26.043. Civil Matters in Which County Court Is Without Jurisdiction

      A county court does not have jurisdiction in:

      ...

      (8) a suit for the recovery of land.

TEX. GOV’T CODE ANN. §25.003, §25.2362(a), & §26.043 (Vernon 2015).




                                             12
      Texas Government Code Section 25.2362(a) explains that 25.003 defines

the boundaries of the statutory county court’s jurisdiction, and the jurisdiction is

expanded to be concurrent with the district court’s jurisdiction only in the

enumerated provisions of 25.2362(a)(1)-(7). A suit for recovery of land is not

listed in the enumerated provisions. Therefore, 15.2362 does not give jurisdiction

to the statutory county court for this proceeding.

      Section 15.003 explains that a statutory county court has jurisdiction as

“proscribed by law for [constitutional] county courts.”

      The constitutional county courts are specifically limited in §26.043, which

states that “A [constitutional] county court does not have jurisdiction in... (8) a suit

for the recovery of land.”

      Accordingly, a plain reading of the statutes reveals that the county court at

law does not have subject matter jurisdiction over a suit for recovery of land, such

as this lawsuit.

3. The Tyler Court of Appeals spoke to this exact issue in Bishop v.
TransCanada Keystone Pipe.

      The Tyler Court of Appeals recently reviewed the subject matter jurisdiction

of a similarly situated county court at law in Bishop v. TransCanada Keystone




                                          13
Pipe, and it’s on all fours with the case at hand.2 2014 Tex. App. LEXIS 1130, *4-

5 (Tex. App.—Tyler 2014, no pet.). In Bishop, the Tyler Court of Appeals held

that the clear and specific limitations in Government Code section 26.043 are

made applicable to statutory county courts by section 25.003, and therefore the

statutory county court lacked jurisdiction:

      The County Court at Law of Nacogdoches County is a statutory
      county court. See TEX. GOV'T CODE ANN. § 25.1761(West 2004). A
      statutory county court has the same jurisdiction as a constitutional
      county court. See id. § 25.0003(a) (West Supp. 2013). It does not
      have jurisdiction in "a suit for recovery of land." Id. § 26.043(8)
      (West 2004). A statutory county court has no jurisdiction over cases
      in which the gist of the plaintiff's claim is an adjudication of title even
      if the judgment sought does not include an express grant of relief with
      respect to title. When a party seeks rescission of a contract to
      purchase real property, a county court lacks jurisdiction....

      In sum, a statutory county court has no jurisdiction over cases in
      which the gist of the plaintiff's claim is an adjudication of title, even
      if the judgment sought does not include an express grant of relief with
      respect to title. Here, the gist of Bishop's action involves rescission of
      the easement. Therefore, the county court at law lacked jurisdiction
      over Bishop's claim. Bishop's sole issue is overruled.

Id. (internal citations omitted).

      Accordingly, no statute grants authority to the Van Zandt statutory county

court to hear this matter.




      2
          The opinion is attached as Appendix 3 for the Court’s convenience.

                                               14
4.The county court at law was without authority to do anything other than
dismiss this case.

      The county court at law was without authority to do anything other than

dismiss this case. The purpose of the plea to the jurisdiction is to dismiss a cause

of action without regard to whether the claim has merit. Mission Consol. ISD v.

Garcia, 372 S.W.3d 629, 635 (Tex. 2012). The plea challenges the court’s power

to adjudicate the subject matter of the controversy. Heckman v. Williamson Cty.,

369 S.W.3d 137, 149 (Tex. 2012). Subject-matter jurisdiction is essential to the

authority of a court to decide a case. City of Houston v. Rhule, 417 S.W.3d 440

(Tex. 2013). Without subject-matter jurisdiction, a court cannot render a valid

judgment. Dubai Pet. Co. v. Kazi, 12 S.W.3d 71, 74-75 (Tex. 2000). Subject-

matter jurisdiction cannot be given or taken away by consent and cannot be

waived. Carroll v. Carroll, 304 S.W.3d 366, 367 (Tex. 2010).

      Accordingly, the county court at law appropriately dismissed this case.

                      VIII. CONCLUSION AND PRAYER

      For these reasons, this Court should affirm the trial court’s judgment.




                                          15
                                      Respectfully submitted,




                                      121 N. Spring Avenue
                                      The Arcadia Theater
                                      Tyler, Texas 75702
                                      (903) 526-1600 Telephone
                                      (903) 595-0796 Telefax



                                      By:    /s/ Marisa M. Schouten
                                             Marisa M. Schouten
                                             Bar I.D. No. 24039163

                                      ATTORNEY FOR APPELLANT


                           Certificate of Compliance

      I certify that appellant’s brief contains 2,626 words according to the word

count function of the computer program used in drafting the response.



                                      /s/ Marisa Schouten
                                      Marisa Schouten




                                        16
                               Certificate of Service

      On the 29th day of May, 2015, I forwarded, via e-mail, regular U.S. mail,

certified mail, return receipt requested, hand delivery or fax transmission, a copy

of this brief as follows:

      All counsel of record

                                       /s/ Marisa Schouten
                                       Marisa Schouten




                                         17
              APPENDIX 1
Order dismissing case for lack of subject
matter jurisdiction, signed December 16,
                  2014.
74
          APPENDIX 2
Pertinent provisions of the Texas
       Government Code
                              GOVERNMENT CODE
                          TITLE 2. JUDICIAL BRANCH
                             SUBTITLE A. COURTS
                   CHAPTER 25. STATUTORY COUNTY COURTS
          SUBCHAPTER C. PROVISIONS RELATING TO PARTICULAR COUNTIES


                         GO TO TEXAS CODE ARCHIVE DIRECTORY

                             Tex. Gov't Code § 25.2361 (2014)

§ 25.2361. Van Zandt County

  Van Zandt County has one statutory county court, the County Court at Law of Van
Zandt County.

§ 25.2362. Van Zandt County Court at Law Provisions

  (a) In addition to the jurisdiction provided by Section 25.0003 and other law, and
except as limited by Subsection (b), a county court at law in Van Zandt County has
concurrent jurisdiction with the district court in:

  (1) felony cases to:

    (A) conduct arraignments;

    (B) conduct pretrial hearings;

    (C) accept guilty pleas; and

   (D) conduct jury trials on assignment of a district judge presiding in Van Zandt
County and acceptance of the assignment by the judge of the county court at law;

  (2) Class A and Class B misdemeanor cases;

  (3) family law matters;

  (4) juvenile matters;

  (5) probate matters;

  (6) guardianship matters; and

  (7) appeals from the justice and municipal courts.

(b) A county court at law's civil jurisdiction concurrent with the district court in civil cases
is limited to cases in which the matter in controversy does not exceed $ 200,000. A
county court at law does not have general supervisory control or appellate review of the
commissioners court or jurisdiction of:

  (1) suits on behalf of this state to recover penalties or escheated property;

  (2) felony cases involving capital murder;
  (3) misdemeanors involving official misconduct; or

  (4) contested elections.

(c) [Repealed by Acts 2011, 82nd Leg., 1st C.S., ch. 3 (H.B. 79), § 4.50(a)(92), effective
January 1, 2012.]

(d) The judge of a county court at law shall be paid a total annual salary set by the
commissioners court at an amount that is not less than $ 1,000 less than the total
annual salary received by a district judge in the county. A district judge's or statutory
county court judge's total annual salary does not include contributions and supplements
paid by a county.

(e) [Repealed by Acts 2011, 82nd Leg., 1st C.S., ch. 3 (H.B. 79), § 4.50(a)(92), effective
January 1, 2012.]

(f) The district clerk serves as clerk of a county court at law in family court matters and
proceedings, and the county clerk shall serve as clerk of a county court at law in all other
matters. Each clerk shall establish a separate docket for a county court at law.

(g) The official court reporter of a county court at law is entitled to receive a salary set
by the judge of the county court at law with the approval of the commissioners court.

(h) [Repealed by Acts 2011, 82nd Leg., 1st C.S., ch. 3 (H.B. 79), § 4.50(a)(92), effective
January 1, 2012.]

(i) If a jury trial is requested in a case that is in a county court at law's jurisdiction, the
jury shall be composed of six members unless the constitution requires a 12-member
jury.


 History:


Enacted by Acts 2009, 81st Leg., ch. 1103 (H.B. 4833), § 15, effective January 1, 2011;
am. Acts 2011, 82nd Leg., ch. 773 (H.B. 1897), § 1, effective September 1, 2011; am.
Acts 2011, 82nd Leg., 1st C.S., ch. 3 (H.B. 79), § 4.50(a)(92), effective January 1, 2012.

NOTES:

  2011 amendment,
  by ch. 773, added (a)(6); redesignated former (a)(6) as (a)(7); in (f), added "family
court" and substituted "and proceedings" for "of concurrent jurisdiction with the district
court"; and added (i).
  2011 amendment,
  by 1st C.S., ch. 3, repealed (c), which read: "The judge of a county court at law must
have the same qualifications as those required by law for a district judge."; repealed (e),
which read: "The judge of a county court at law may not engage in the private practice
of law."; and repealed (h), which read: "Jurors summoned for a county court at law or a
district court in the county may by order of the judge of the court to which they are
summoned be transferred to another court for service and may be used as if summoned
for the court to which they are transferred."
LexisNexis (R) Notes:




 OPINIONS OF ATTORNEY GENERAL

1. The judge of the Van Zandt County Court at Law is authorized to appoint an official
court reporter and set the reporter's salary with approval of the commissioners court; the
judge of the Van Zandt County Court of Law has exclusive authority to control the official
court reporter's hours of work; under Tex. Gov't Code Ann. § 25.2362(g), neither the
judge of the Van Zandt County Court at Law nor the Commissioners Court has exclusive
authority to set the salary of the official court reporter. Op. Tex. Att'y Gen. No. GA-0952
(2012).

2. Under Tex. Gov't Code Ann. § 25.2362(g), the Commissioners Court's authority to
approve the salary of the County Court at Law court reporter does not include the
authority to unilaterally set the reporter's salary; a reviewing court would likely conclude
that Van Zandt County is required to provide the official court reporter for the County
Court at Law a reasonable salary. Op. Tex. Att'y Gen. No. GA-0952 (2012).
                        LexisNexis (R) Texas Annotated Statutes
                 Copyright © 2014 by Matthew Bender & Company, Inc.
                           a member of the LexisNexis Group
                                   All rights reserved.

         *** This document is current through the 2013 3rd Called Session ***

                                GOVERNMENT CODE
                            TITLE 2. JUDICIAL BRANCH
                               SUBTITLE A. COURTS
                      CHAPTER 25. STATUTORY COUNTY COURTS
                        SUBCHAPTER A. GENERAL PROVISIONS


                      GO TO TEXAS CODE ARCHIVE DIRECTORY

                            Tex. Gov't Code § 25.0003 (2014)

§ 25.0003. Jurisdiction

  (a) A statutory county court has jurisdiction over all causes and proceedings, civil and
criminal, original and appellate, prescribed by law for county courts.

(b) A statutory county court does not have jurisdiction over causes and proceedings
concerning roads, bridges, and public highways and the general administration of county
business that is within the jurisdiction of the commissioners court of each county.

(c) In addition to other jurisdiction provided by law, a statutory county court exercising
civil jurisdiction concurrent with the constitutional jurisdiction of the county court has
concurrent jurisdiction with the district court in:

  (1) civil cases in which the matter in controversy exceeds $ 500 but does not exceed $
200,000, excluding interest, statutory or punitive damages and penalties, and attorney's
fees and costs, as alleged on the face of the petition; and

  (2) appeals of final rulings and decisions of the division of workers' compensation of
the Texas Department of Insurance regarding workers' compensation claims, regardless
of the amount in controversy.

(d) Except as provided by Subsection (e), a statutory county court has, concurrent with
the county court, the probate jurisdiction provided by general law for county courts.

(e) In a county that has a statutory probate court, a statutory probate court is the only
county court created by statute with probate jurisdiction.

(f) A statutory county court does not have the jurisdiction of a statutory probate court
granted statutory probate courts by the Texas Probate Code.
                                GOVERNMENT CODE
                            TITLE 2. JUDICIAL BRANCH
                               SUBTITLE A. COURTS
                   CHAPTER 26. CONSTITUTIONAL COUNTY COURTS
                     SUBCHAPTER D. JURISDICTION AND POWERS


                      GO TO TEXAS CODE ARCHIVE DIRECTORY

                            Tex. Gov't Code § 26.043 (2014)

§ 26.043. Civil Matters in Which County Court Is Without Jurisdiction

  A county court does not have jurisdiction in:

  (1) a suit to recover damages for slander or defamation of character;

  (2) a suit for the enforcement of a lien on land;

  (3) a suit in behalf of the state for escheat;

  (4) a suit for divorce;

  (5) a suit for the forfeiture of a corporate charter;

  (6) a suit for the trial of the right to property valued at $ 500 or more and levied on
under a writ of execution, sequestration, or attachment;

  (7) an eminent domain case; or

  (8) a suit for the recovery of land.
            APPENDIX 3
  Bishop v. TransCanada Keystone
Pipeline, 2014 Tex. App. LEXIS 1140
   (Tex. App.–Tyler 2014, no pet.)
                                                                                                                    Page 1




                MICHAEL BISHOP, APPELLANT v. TRANSCANADA KEYSTONE PIPELINE,
                                       L.P., APPELLEE

                                                  NO. 12-13-00054-CV

                       COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

                                              2014 Tex. App. LEXIS 1130


                                         January 31, 2014, Opinion Delivered

PRIOR HISTORY: [*1]
 Appeal from the County Court at Law of Nacogdoches County, Texas (Tr.Ct.No. CV1213077).


COUNSEL: Michael Bishop, Appellant, Pro se.

For Appellee: James Andrew Freeman.

JUDGES: Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

OPINION BY: BRIAN HOYLE

OPINION


MEMORANDUM OPINION

     Michael Bishop appeals the trial court's order granting TransCanada Pipeline, L.P.'s plea to the jurisdiction. In one
issue, Bishop contends that the trial court erred in determining that it lacked subject matter jurisdiction. We affirm.

BACKGROUND

    The Keystone Pipeline System traverses several states and extends as far south as Cushing, Oklahoma.
TransCanada sought to install two additions to the Keystone Pipeline System. One of these additions, the Gulf Coast
Project, would extend the pipeline from Cushing, Oklahoma, to crude petroleum storage terminal facilities near
Nederland and Houston, Texas.

    TransCanada's planned path for the Gulf Coast Project went through Bishop's property in Nacogdoches County.
TransCanada attempted to negotiate an easement and pipeline right of way through Bishop's property, but negotiations
proved unsuccessful. Thereafter, TransCanada brought a condemnation proceeding in the County Court at Law of
Nacogdoches County.
                                                                                                                        Page 2
                                             2014 Tex. App. LEXIS 1130, *1



    Bishop did not believe that TransCanada had the right of eminent domain. [*2] He also did not agree with the
value that the special commissioners of Nacogdoches County assigned to TransCanada's proposed easement and
pipeline right of way. Bishop and TransCanada mediated their dispute and agreed to a settlement whereby TransCanada
would pay Bishop and Bishop would give TransCanada an easement and pipeline right of way across his property. As a
result, Bishop signed a mediation settlement, a settlement agreement and release, and an easement and pipeline right of
way agreement.

    Less than one month after signing the documents that settled the initial cause between the parties, Bishop,
proceeding pro se, filed a new suit in the County Court at Law of Nacogdoches County seeking rescission of the
easement and pipeline right of way agreement. In his petition, he alleged that he signed the agreements with
TransCanada as a result of coercion, duress, and fraud. TransCanada filed a counterclaim for breach of contract.

     At a hearing on Bishop's motion for temporary injunction, the trial court raised the question of its jurisdiction over
the case because Bishop sought rescission of the easement and the county court at law did not have jurisdiction over
disputes involving title [*3] to land. In response, Bishop filed a brief on the issue, in which he argued that the trial court
had jurisdiction because (1) it previously had exercised jurisdiction over TransCanada's condemnation suit and (2) the
case involved simple breach of contract and fraud claims that did not involve title to property. In partial support of his
second argument, Bishop referenced a statement that TransCanada made in its counterclaim against him that the case
"boils down to a simple contractual dispute." TransCanada filed a plea to the jurisdiction, in which it contended that the
county court at law lacked jurisdiction because Bishop's claims necessarily involved TransCanada's easement across
Bishop's property, and, thus, title to his land. The trial court granted TransCanada's plea to the jurisdiction and
dismissed Bishop's claims. TransCanada nonsuited its counterclaims without prejudice, and this appeal followed.

JURISDICTION

    In his sole issue, Bishop contends that the trial court erred in granting TransCanada's plea to the jurisdiction.

Standard of Review and Applicable Law

      Subject matter jurisdiction is essential to the authority of a trial court to decide a case. Tex. Ass'n of Bus. v. Tex.
Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). [*4] A plea questioning the trial court's jurisdiction raises a question
of law that we review de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). In reviewing a plea to the
jurisdiction, we consider the pleadings and any evidence relevant to the jurisdictional issue. Tex. Dep't of Crim. Justice
v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). The plaintiff has the burden of alleging facts sufficient to demonstrate the
trial court's jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If the pleadings
illustrate incurable defects in jurisdiction, a plea to the jurisdiction is properly granted. Id. at 226-27.

     The County Court at Law of Nacogdoches County is a statutory county court. See TEX. GOV'T CODE ANN. § 25.1761
(West 2004). A statutory county court has the same jurisdiction as a constitutional county court. See id. § 25.0003(a)
(West Supp. 2013). It does not have jurisdiction in "a suit for recovery of land." Id. § 26.043(8) (West 2004). A
statutory county court has no jurisdiction over cases in which the gist of the plaintiff's claim is an adjudication of title
even if the judgment sought does not include an express grant of relief with respect [*5] to title. Merit Mgmt. Partners
I, L.P. v. Noelke, 266 S.W.3d 637, 647 (Tex. App.--Austin 2008, no pet.). When a party seeks rescission of a contract to
purchase real property, a county court lacks jurisdiction. Gossett v. Manley, 43 S.W.2d 622, 623 (Tex. Civ. App.--Waco
1931, writ ref'd); see also Loville v. Loville, 944 S.W.2d 818, 819 (Tex. App.--Beaumont 1997, writ denied).

     A suit for the recovery of land encompasses actions that affect several interests in land, not just fee simple
ownership. Merit Mgmt. Partners I, 266 S.W.3d at 643. An easement is a nonpossessory interest in land that authorizes
the use of the property for only particular purposes. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex.
2002). The land benefitted by the easement is the dominant estate, and the land burdened by the easement is the servient
estate. LaTaste Enters. v. City of Addison, 115 S.W.3d 730, 735 (Tex. App.--Dallas 2003, pet. denied). An easement
                                                                                                                     Page 3
                                             2014 Tex. App. LEXIS 1130, *5



includes "the right to do whatever is reasonably necessary for full enjoyment of the rights granted." Whaley v. Cent.
Church of Christ, 227 S.W.3d 228, 231 (Tex. App.--Houston [1st Dist.] 2007, no pet.). If a suit involves the
determination of ownership [*6] of an easement, the county court lacks jurisdiction. See Coughran v. Nunez, 133 Tex.
303, 127 S.W.2d 885, 887 (Tex. 1939) (where determining ownership of easement necessary to resolve parties' dispute,
matter "necessarily involved the trial of title to real estate").

Analysis

    Here, Bishop's argument that the county court at law has jurisdiction is twofold. First, he argues that the county
court at law has jurisdiction because it exercised jurisdiction over TransCanada's prior condemnation suit. Next, he
argues that his suit against TransCanada is a simple breach of contract and fraud action and does not involve title to
property or ownership.

     In considering Bishop's first argument, we initially note that every case must stand on its own merits, and we
review the pleadings to determine whether subject matter jurisdiction exists. See Miller, 51 S.W.3d at 587. Moreover,
subject matter jurisdiction cannot be waived. Tex. Air Control Bd., 852 S.W.2d at 443-44 ("Subject matter jurisdiction
is never presumed and cannot be waived."). Finally, the county court at law can have jurisdiction over one type of
action between two parties, but lack jurisdiction over another type of action between the same parties. [*7] See TEX.
PROP. CODE ANN. § 21.001 (West 2004) ("District courts and county courts at law have concurrent jurisdiction in
eminent domain cases"); see also Lower Nueces River Water Supply Dist. v. Cartwright, 319 S.W.2d 158, 161 (Tex.
Civ. App.--San Antonio 1958), aff'd as modified, 160 Tex. 239, 328 S.W.2d 752 (Tex. 1959) ("While only a district court
has jurisdiction over title, both a district court and a county court may have jurisdiction over condemnation.").
Accordingly, the county court at law's exercise of jurisdiction in the first suit is of no moment in the case at hand.

     We next turn to Bishop's second argument. Even though his claims against TransCanada are pleaded as causes of
action for breach of contract and fraud, the focal point of the action is the validity of the easement granted by Bishop to
TransCanada. In his petition, Bishop specifically requested that the court (1) prohibit TransCanada from exercising its
rights under the easement and (2) rescind the easement and pipeline right of way agreement. Bishop argues
TransCanada's statement in its counterclaim that the case "boils down to a simple contractual dispute" supports his
characterization of his cause. However, even assuming [*8] arguendo that TransCanada's pleadings could be
determinative of the issue, our reading of the sentence in TransCanada's counterclaim to its completion reveals
references to the easement and pipeline right of way conveyed by Bishop.

    In sum, a statutory county court has no jurisdiction over cases in which the gist of the plaintiff's claim is an
adjudication of title, even if the judgment sought does not include an express grant of relief with respect to title. See
Merit Mgmt. Partners I, 266 S.W.3d at 647. Here, the gist of Bishop's action involves rescission of the easement.
Therefore, the county court at law lacked jurisdiction over Bishop's claim. See Nunez, 127 S.W.2d at 887; Gossett, 43
S.W.2d at 623. Bishop's sole issue is overruled.

DISPOSITION

    Having overruled Bishop's sole issue, we affirm the trial court's judgment.

    BRIAN HOYLE

    Justice

   Opinion delivered January 31, 2014.
 Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

    (PUBLISH)
                                                                                                                Page 4
                                           2014 Tex. App. LEXIS 1130, *8



JUDGMENT

     THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is
the opinion of this court that there was no error in the judgment.

     It is therefore ORDERED, ADJUDGED and DECREED that the judgment [*9] of the court below be in all things
affirmed, and that all costs of this appeal are hereby adjudged against the appellant, MICHAEL BISHOP, for which
execution may issue, and that this decision be certified to the court below for observance.

    Brian Hoyle, Justice.
