                                            NO. 07-07-0244-CV

                                     IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                               AT AMARILLO

                                                  PANEL E

                                         MAY 27, 2008
                                ______________________________

                     BRENDA WOOD, by and through her Legal Guardian,
                       PAUL GREEN, and BSW MANAGEMENT, LLC.,

                                                                               Appellants

                                                       v.

       DALHART R&R MACHINE WORKS, INC., WESLEY S. WOOD, Individually,
            WADE R. WOOD, Individually, and LISA WOOD, Individually,

                                                            Appellees
                              _________________________________

                  FROM THE 69th DISTRICT COURT OF DALLAM COUNTY;

                            NO. 10508; HON. RON ENNS, PRESIDING
                             _______________________________

                                           Opinion
                                  _______________________________

Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.1

        What we have before us is effort to adjudicate the value and enforce the return of

stock owned by a person who is the subject of a guardianship. The problem comes not

in that effort was made to value and secure the return of the stock but rather in the locale

wherein the suit began. This is so because Brenda Wood, the stock owner, became a


          1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignm ent. T E X . G O V ’T
C OD E A N N . §75.002(a)(1) (Vernon 2005).
ward of Paul Green on December 8, 2005, through a guardianship proceeding initiated in

the constitutional County Court of Lubbock County. Though his status as guardian of her

estate was initially “temporary,” it changed on March 6, 2006, when the same court

removed the moniker of “temporary” from the appointment. Approximately 23 days later,

that is, on March 29, 2006, Dalhart R & R Machine Works, Inc. (Dalhart RR) filed its suit

in Dallam County for a declaratory judgment effectively adjudicating the stock’s value and

compelling its return to the corporation.2 In response, Green moved to dismiss the Dallam

County suit for want of jurisdiction; he believed that exclusive jurisdiction over the dispute

lay with the Lubbock County Court due to the ongoing guardianship. The trial court denied

the motion and eventually entered summary judgment in favor of Dalhart RR. We reverse

both decisions.

        Law

        Upon the filing of an application for the appointment of a guardian over a person or

his estate and until the guardianship is settled and closed, the administration of the estate

is considered “one proceeding for purposes of jurisdiction and is a proceeding in rem.”

TEX . PROB. CODE ANN . §604 (Vernon 2003). Furthermore, in those counties in which there

is no statutory probate court but where there is a county court at law or other statutory

court exercising the jurisdiction of a probate court, all applications, petitions, and motions

regarding guardianships, mental health matters, or other matters addressed in chapter 13

of the Probate Code (i.e. guardianships) “shall be filed and heard in those courts and the



        2
          The corporate bylaws allegedly required that once a director’s role as director was term inated, he
was to resell his stock to the corporation. W ood was a director of the corporation but was rem oved through
the efforts of her ex-husband and the two other directors and stockholders.

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constitutional county court, unless otherwise provided by law.” Id. §606(c) (Vernon Supp.

2007). Statute also provides not only that a court exercising “original probate jurisdiction

has the power to hear all matters incident to the estate,” id. §606(e), but also that in

proceedings before a constitutional county court and county court at law, the phrase

“‘incident to an estate’ . . . include[s] . . . a claim by or against a guardianship estate . . . all

actions for trial of the right of property incident to a guardianship estate, and generally all

matters relating to the settlement, partition, and distribution of a guardianship estate.” Id.

§607(a). So too do we find in §800 of the Probate Code language dictating that when a

claim has been rejected by a guardian, the claimant “shall institute suit on the claim in the

court of original probate jurisdiction in which the guardianship is pending or in any other

court of proper jurisdiction . . . .” Id. §800 (Vernon 2003).

       The final guardianship statute we note here is the one stating that to “the extent

applicable and not inconsistent with other provisions of this code, the laws and rules

governing estates of decedents apply to and govern guardianships.” Id. §603(a). It is

worthy of comment since various of the statutes governing the estates of decedents mirror

those regulating guardianships. For instance, like §606, §5(c) of the Probate Code states

that in those counties where there is no statutory probate court but there is a county court

at law or other statutory court exercising probate jurisdiction, “all applications, petitions, and

motions regarding probate and administrations shall be filed and heard in those courts and

the constitutional county court, unless otherwise provided by law.” TEX . PROB. CODE ANN .

§5(c) (Vernon Supp. 2007). Similar to §606(e), §5(f) provides that “[a]ll courts exercising

original probate jurisdiction shall have the power to hear all matters incident to an estate.”



                                                 3
Id. §5(f). And, much like §607(e), the phrase “incident to the estate” encompasses “all

claims by or against an estate . . . all actions for trial of the right of property incident to an

estate . . . and generally all matters relating to the settlement, partition, and distribution of

estates of deceased persons.” TEX . PROB. CODE ANN . §5A (Vernon Supp. 2007). Finally,

prior to its amendment in 2001, §313, like §800 of the Probate Code permitted claimants

who had their claims rejected by the decedent’s representative to “institute suit thereon in

the court of original probate jurisdiction in which the estate is pending or in any other court

of proper jurisdiction . . . .” Act of May 27, 1995, 74th Leg., R.S., ch. 1054, §15, sec. 313,

1994 Tex. Gen. Laws 5207, 5212 (amended 2001).

       The similarity between the foregoing statutory provisions provides us with some

comfort in addressing the issue at bar, especially in view of §603(a). Simply put, the body

of law discussing concepts of jurisdiction as it relates to the administration of decedent

estates provides us guidance through the maze of like issues involving guardianship

estates. More importantly, while delving into that body of law, we came upon the holding

in Bailey v. Cherokee County Appraisal Dist., 862 S.W.2d 581 (Tex. 1993). There, the

Supreme Court was faced with a situation wherein the administration of the decedent’s

estate began in the Cherokee County Court at Law, but the Appraisal District and various

taxing entities sued to collect delinquent taxes in the Cherokee County District Court during

pendency of the administration. The plaintiffs argued that since the district court had

original probate jurisdiction, its authority included the ability to adjudicate matters incident

to the estate and, being incident to the estate, their claim for back taxes, therefore, was

properly filed in the Cherokee County District Court. The Supreme Court disagreed,

concluding that a “court empowered with probate jurisdiction may only exercise its probate

                                                4
jurisdiction over matters incident to an estate when a probate proceeding related to such

matters is already pending in that court.” Id. at 585. This meant that because the

administration of Bailey’s estate was filed in the Cherokee County Court at Law, “that court

alone had jurisdiction over matters incident to the estate.” Id. at 585-86. That the

administration was so pending also meant, according to the Supreme Court, that the

county court at law acquired dominant jurisdiction over matters incident to the estate “to

the exclusion of coordinate courts.” Id. at 586. Thus, the district court had no jurisdiction

over the appraisal district’s suit. Id. at 582.

       The holding in Bailey has since been construed as mandating that the court first

acquiring jurisdiction over the decedent’s estate acquires exclusive jurisdiction over claims

incident to the estate. Hailey v. Siglar, 194 S.W.3d 74, 80-81 (Tex. App.–Texarkana 2006,

pet. denied); Howe State Bank v. Crookham, 873 S.W.2d 745, 748-50 (Tex. App.–Dallas

1994, no writ); Miller v. Woods, 872 S.W.2d 343, 345 (Tex. App.–Beaumont 1994, orig.

proceeding). And, the same was held true even though the predecessor to §313 allowed

claims against the estate to be filed in either the court in which the probate was initiated

or in any other court of proper jurisdiction. Howe State Bank v. Crookham, 873 S.W.2d at

749 n.11.

       Application of Law

       Given the similarity between the jurisdictional statutes applicable to probates and

guardianships, we see no reason why the holdings in Bailey, Hailey, Howe State Bank, and

Miller should differ when the estate arises not from the death of someone but rather from

incapacity and the appointment of a guardian. Again, §603(a) mandates that the law



                                                  5
relating to the administration of a decedent’s estate should apply when not in conflict with

laws expressly regulating guardianships. Moreover, the legislature expressed that once

a guardianship begins, the “administration of the [ward’s] estate” is to be “one proceeding

for purposes of jurisdiction” and the proceeding is in rem. TEX . PROB. CODE ANN . §604

(Vernon 2003) (emphasis added). It is difficult to read this statute as suggesting something

other than that the court in which the guardianship is initiated acquires exclusive jurisdiction

over the estate and issues relating to its administration. And, effort to deprive the

guardianship estate of a major asset can hardly be deemed as anything but action for the

trial of right to property or a claim against the estate; as such the dispute is certainly

incident to the estate, as the term is defined in §607(a) of the Probate Code. Moreover,

since Lubbock County had or has no statutory probate court and Brenda resided in that

county, it was proper to initiate her guardianship in either the county court at law or

constitutional county court. The latter being selected, it acquired exclusive jurisdiction over

the claim of Dalhart RR, per Bailey, Hailey, and the other authorities mentioned above. So,

the 69th District Court of Dallam County lacked jurisdiction to entertain the declaratory

action against Brenda Wood and her guardian.

       Consequently, we reverse both the order of the trial court denying the plea to the

jurisdiction of the court and the summary judgment. We further dismiss the cause for want

of jurisdiction.



                                                   Brian Quinn
                                                   Chief Justice




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