Affirmed and Majority Opinion and Concurring and Dissenting Opinion 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

                CONCURRING AND DISSENTING OPINION

      The probate court dismissed Casey’s lawsuit for lack of subject matter
jurisdiction because it involved real property in Louisiana. The majority affirms the
probate court’s order as to all of Casey’s claims. I agree with the majority’s
disposition affirming the probate court’s order dismissing Casey’s claims for breach
of warranty, reformation, and declaratory judgment on ground one. However, I
would reverse the probate court’s order with regard to Casey’s declaratory judgment
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claim on ground two and remand the case to the probate court for further
proceedings. Therefore, I concur in this court’s judgment in part and respectfully
dissent in part.

       Casey argues his “lawsuit does not raise a naked question of title” and that he
does not seek to quiet title because “the Louisiana court has already done that.”
Instead, he contends his “claims involve 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.”

       Texas courts may not adjudicate title to land in another state or country
because they do not have subject matter jurisdiction over property outside the state.
Erkan v. Erkan, No. 03-14-00148-CV, 2015 WL 8592693, at *3 (Tex. App.—Austin
Dec. 8, 2015, pet. denied) (mem. op.) (quoting Trutec Oil & Gas, Inc. v. W. Atlas
Int’l, Inc., 194 S.W.3d 580, 583 (Tex. App.—Houston [14th Dist.] 2006, no pet.)).
“Texas courts may, however, compel a party over whom it has jurisdiction to execute
a conveyance of a real property interest situated in another state.” Id. (quoting Kelly
Oil Co. v. Svetlik, 975 S.W.2d 762, 764 (Tex. App.—Corpus Christi 1998, pet.
denied)). The key jurisdictional question is whether the cause before the court
involves a “naked question of title.” Id.

       In determining whether a lawsuit involves the adjudication of title, we are not
limited to the plaintiff’s framing of the claims in his pleadings. Merit Mgmt.
Partners I, L.P. v. Noelke, 266 S.W.3d 637, 647 (Tex. App.—Austin 2008, no pet.).
Regardless of the plaintiff’s characterization, if the “gist” of a claim is an
adjudication of title, a court does not have jurisdiction over the claim. Id. “If the
right of recovery in a suit depends, at least in part, upon the title to land, but there is
no real dispute between the parties over the question of title, the question of title is
incidental.” Id. at 648.

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      In his live petition, Casey pleaded for “declaratory relief” on two separate
grounds as follows:

                       Count One - Suit for Declaratory Relief
            12. Thomas Jesse Fox, Independent Executor of the Estate of
      Fred K. Fox, Deceased has contested the Warranty Deed due to a
      technical defect and has refused to correct or reform the technical
      defect.
             13. Plaintiff requests that the Court declare that the Warranty
      Deed conveyed all of Fred K. Fox’s interest in the Property to Plaintiff
      William Casey Fox as of the date of the Warranty Deed. Alternatively,
      Plaintiff requests that the Court declare that the Warranty Deed
      functioned as an expression of Fred K. Fox’s testamentary intent and
      that the Property vests from the estate to Plaintiff.
The first ground, even liberally read, is essentially a request to adjudicate title to the
Louisiana property anew and thus involves a “naked question of title.” The pleading
affirmatively negates the existence of subject matter jurisdiction, and the probate
court correctly dismissed Casey’s declaratory judgment claim on the first ground.
See Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 486 (Tex. 2018) (if pleadings
affirmatively negate the existence of jurisdiction, the plea may be granted and the
suit dismissed without allowing an opportunity to amend). Therefore, I agree with
the majority’s disposition affirming the probate court’s order dismissing Casey’s
declaratory judgment claim on ground one.

      However, Casey’s second ground for declaratory relief at its core is not asking
the court to adjudicate title to the Louisiana property and Casey is not disputing the
Louisiana property is owned by Fred’s estate. Liberally reading the pleadings in
Casey’s favor as we are instructed to do and considering Casey’s response to the
plea to the jurisdiction, he is asking the probate court for a declaration of Fred’s
testamentary intent and his rights with respect to Fred’s estate. Casey seemingly
requests the court to determine how the Louisiana property (being a part of Fred’s

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estate) should be distributed in accordance with Fred’s testamentary intent and will
as provided in Texas Civil Practice and Remedies Code sections 37.004(a),
37.005(1), (3),1 and Texas Estates Code sections 31.001(4), (6), (7), 31.002(c)(2),
32.001.2 The probate court has jurisdiction to hear all probate proceedings and
matters related to a probate proceeding. See Tex. Est. Code Ann. §§ 31.001, 31.002,
32.001.

      Casey’s pleading regarding the second ground for declaratory relief does not
affirmatively negate the probate court’s jurisdiction. Casey should be afforded an
opportunity to amend his pleading with regard to this ground to affirmatively
demonstrate the probate court’s jurisdiction by alleging sufficient facts that he is
seeking declaratory relief as to how the Louisiana property in Fred’s estate should
be distributed in accordance with Fred’s testamentary intent and will.

      Thus, I would conclude the probate court erred by dismissing Casey’s
declaratory judgment claim on this ground for lack of subject matter jurisdiction.
See Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007) (“It is true
that a plaintiff deserves ‘a reasonable opportunity to amend’ unless the pleadings
affirmatively negate the existence of jurisdiction.”); Hegar v. EBS Solutions, Inc.,
549 S.W.3d 849, 864 (Tex. App.—Austin 2018, pet. granted) (remanding to allow
appellee opportunity to amend pleadings that had not affirmatively negated possible
existence of jurisdiction).


                                              /s/       Meagan Hassan
                                                        Justice

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

      1
          See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.004(a), 37.005(1), (3).
      2
          See Tex. Est. Code Ann. §§ 31.001(4), (6), (7), 31.002(c)(2), 32.001.

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