
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




NO. 03-02-00109-CV


Frank Smith's, Inc. and Terry Williamson, Appellants

v.

Ralph E. Sheffield, Jr., Appellee





FROM THE COUNTY COURT AT LAW NO. 1 OF BELL COUNTY, 
NO. 22,160, HONORABLE EDWARD S. JOHNSON, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N


	The trial court dismissed this cause without prejudice on the basis that it lacked 
jurisdiction of appellee Ralph E. Sheffield's claims against appellants Frank Smith's, Inc. and Terry
Williamson.  Appellants ask us to reverse the trial court's dismissal and reinstate the case in the trial
court.  They allege that the trial court had  jurisdiction over Sheffield's claims because: (1) as a
county court at law, the trial court had jurisdiction pursuant to its general jurisdictional statute; and
(2) in the exercise of its original probate jurisdiction, it had power over claims incident to the estate
of Frank Smith.  We will affirm the dismissal.

BACKGROUND

	Frank Leahy Smith, the principal and chief executive officer of Frank Smith's, Inc.
("the Corporation"), died in Bell County on July 11, 2000.  A few weeks later, Rick Leahy Smith,
the named independent executor, filed an application in cause number 22,160 in the county court at
law to probate the will of the decedent.  On August 18, the trial court signed the order probating the
will and authorizing issuance of letters testamentary.  Meanwhile, on August 10, 2000, Sheffield
filed assorted claims against the Corporation in the 169th District Court of Bell County.  Sheffield
alleged that the Corporation breached its contract to sell him a restaurant owned and operated by the
Corporation.  He contended that he negotiated the contract with Frank Smith.  Sheffield also argued
that the Corporation made fraudulent representations to him regarding the sale.  The Corporation
answered and filed a plea to the jurisdiction on the ground that, because shares of stock in the
Corporation constitute a substantial asset in the estate of Frank Smith, the issues in the suit were
ancillary or pendent to Smith's probate proceedings. (1)  The district court granted the plea and
dismissed the suit without prejudice.  That decision was not appealed.
	Shortly thereafter, Sheffield filed his claims against the Corporation in cause number
44,380 in the constitutional county court.  By agreed order, the case was transferred to cause number
22,160 in the county court at law (hereinafter "the trial court"). (2)  In his first amended petition,
Sheffield joined as a defendant Terry Williamson, the daughter of Frank Smith and an officer of the
Corporation.  According to Sheffield, Williamson tortiously interfered with the contractual and
business relationship existing between him and Frank Smith, which "was the sole cause of the
Corporation's failure to close the sale of the Restaurant." 
	Sheffield never amended his pleadings to allege any action against Smith individually
or his estate, never joined Smith's personal representative as a party, and never served Smith's
executor.  Appellants moved for summary judgment, which the trial court granted, rendering
judgment in favor of appellants and ruling that Sheffield take nothing on his claims.  Sheffield filed
a motion for new trial; at the hearing, he apparently urged an oral motion to dismiss the cause for
lack of jurisdiction.  The trial court withdrew its judgment and granted the motion to dismiss,
determining that the court "lacked subject matter jurisdiction to grant the original summary judgment
because the personal representative of the Estate had not been made a party thereto."  The trial court
then dismissed without prejudice "the separate suit styled Ralph E. Sheffield, Jr. vs. Frank Smith's,
Inc. and Terry Williamson, Defendants, as encompassed in the probate proceeding styled In the
Estate of Frank Leahy Smith, Deceased." (3)  This appeal followed. 

STANDARD OF REVIEW

	Initially, we note, the position of the parties seems reversed.  As Sheffield admits, he
"is in the anomalous position of arguing to sustain the dismissal of his own suit," while the
appellants urge reinstatement of the action against them.  However, the question of jurisdiction is
fundamental and may be raised at any time.  Tullos v. Eaton Corp., 695 S.W.2d 568, 568 (Tex.
1985).  The fact that the parties here agreed to have the suit consolidated with the probate proceeding
is irrelevant; subject matter jurisdiction exists by operation of law only, and cannot be conferred
upon the court by consent or waiver.  See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.
2000).  Thus, subject matter jurisdiction raises a question of law, which we review de novo.  Mayhew
v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). 
	The standard by which we review subject matter jurisdiction requires the pleader to
allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause.  See Texas Ass'n
of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (citing Richardson v. First Nat'l
Life Ins. Co., 419 S.W.2d 836, 839 (Tex. 1967)).  Our review is guided by the presumption that the
trial court accepts the allegations in the petition as true, unless the defendant pleads and proves that
they were fraudulently made to confer jurisdiction.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,
554 (Tex. 2000).  The party asserting the jurisdictional challenge must show that, even if all the
allegations in the pleadings are true, there is an incurable jurisdictional defect apparent from the face
of the pleadings rendering it impossible for the petition to confer jurisdiction on the trial court.  See
City of San Angelo v. Smith, 69 S.W.3d 303, 305 (Tex. App.--Austin 2002, pet. denied) (citing
Bybee v. Fireman's Fund Ins. Co., 331 S.W.2d 910, 914 (Tex. 1960)).  If the face of the petition
does not affirmatively demonstrate a lack of jurisdiction, the trial court must liberally construe the
plaintiff's allegations in favor of jurisdiction.  Texas Ass'n of Bus., 852 S.W.2d at 446; Peek v.
Equipment Serv. Co., 779 S.W.2d 802, 804 (Tex. 1989).
 When reviewing a trial court order dismissing a cause for want of jurisdiction, Texas
appellate courts "construe the pleadings in favor of the plaintiff and look to the pleader's intent." 
Texas Ass'n of Bus., 852 S.W.2d at 446 (quoting Huston v. Federal Deposit Ins. Corp., 663 S.W.2d
126, 129 (Tex. App.--Eastland 1983, writ ref'd n.r.e.)).  Because the trial court in its order
determined that it lacked subject matter jurisdiction "[a]fter due consideration of evidence in the
pleadings, the motions, the response, . . . and the arguments of counsel," the nature of the issues
raised in Sheffield's challenge to the jurisdiction determines the scope of review.  We are therefore
not required to look solely to the pleadings but may consider evidence and must do so when
necessary to resolve the jurisdictional issue raised.  See Bland, 34 S.W.3d at 554; see also Mayhew,
964 S.W.2d at 928.  Here, the trial court filed findings of fact and conclusions of law.  Findings of
fact are not conclusive when the appellate court has a complete reporter's record of the proceedings
because the findings may be reviewed for legal and factual sufficiency of the evidence to support
them.  See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Tucker v. Tucker, 908 S.W.2d
530, 532 (Tex. App.--San Antonio 1995, writ denied).  However, the record here does not contain
a reporter's record of the hearing at which the trial court considered Sheffield's challenge to the
jurisdiction; therefore, we must presume that sufficient evidence was introduced to support the trial
court's findings of fact and conclusions of law and that the judgment was based upon those findings
and conclusions.  See Scott v. Schneider Estate Trust, 783 S.W.2d 26, 28 (Tex. App.--Austin 1990,
no writ).

DISCUSSION

	Pertinent to this appeal, the trial court found that: (1) the suit's claims involved an
amount in controversy greater than $100,000; (2) Rick Smith, Frank Smith's personal representative,
had never been joined as a party to the action, either individually or in his capacity as the
independent executor of Frank Smith's estate, and he had never been served with citation; and (3)
Sheffield raised in his new trial motion the fact that the trial court's probate jurisdiction was never
properly invoked because the independent executor was never made a party to the suit and served
with citation.  The trial court concluded that: (1) the amount in controversy exceeded the court's
subject matter jurisdiction and that it can only exercise jurisdiction on a matter "ancillary or pendant
to a pending estate"; (2) section 5A of the probate code sets out the probate court's jurisdiction; (3)
an estate is an indispensable party to any proceeding in the probate court; (4) in order to sue an
estate, the personal representative of the estate must be made a party to the suit and served with
citation; and (5) the court was therefore without jurisdiction over the Sheffield action because the
personal representative of the estate was not made a party. 
	Appellants' first issue is broadly presented as "whether the Trial Court erred in
dismissing this case for lack of subject matter jurisdiction."  Although appellants break this issue into
the two broad arguments stated at the outset of this opinion, appellants present us with six other
issues in which they attempt to challenge the trial court's findings of fact and conclusions of law. (4) 
Rather than discuss each issue separately, we will discuss them in the context of appellants' general
arguments, which are that the trial court erred in sustaining the motion to dismiss because the trial
court had jurisdiction to render the summary judgment based on its probate jurisdiction and its
general jurisdiction.

The Trial Court's Probate Jurisdiction
	In the words of the supreme court: "Texas probate jurisdiction is, to say the least,
somewhat complex."  Palmer v. Coble Wall Trust Co., Inc., 851 S.W.2d 178, 180 n.3 (Tex. 1992).
Thus, it is first necessary to understand the statutory process by which the trial court consolidated
Sheffield's claims with the probate proceedings in Frank Smith's estate.  The probate code vests
general probate jurisdiction in the constitutional county courts.  Tex. Prob. Code Ann. § 4 (West
Supp. 2002).  The government code, however, extends probate jurisdiction to the statutory county
courts.  Tex. Gov't Code Ann. § 25.0003(d) (West Supp. 2002).  Thus, a statutory county court has
concurrent probate jurisdiction with the constitutional county court--to the exclusion of the district 
court--unless there is also in that county a "statutory probate court."  In the latter case, only the
statutory probate court exercises probate jurisdiction concurrent with the constitutional county court. 
See id. § 25.0003(e), (f).
	Bell County has no statutorily designated probate court; therefore, the statutory county
court exercises original probate jurisdiction.  Sitting as a probate court, the county court at law has
jurisdiction over the estate of Frank Smith and over claims incident to the estate.  Tex. Prob. Code
Ann. § 5(f) ("All courts exercising original probate jurisdiction shall have the power to hear all
matters incident to an estate.").  In his pleadings, Sheffield alleged that the court had jurisdiction of 
his cause of action pursuant to probate code section 5A(a), which provides:

In proceedings in the constitutional county courts and statutory county courts at law,
the phrases "appertaining to estates" and "incident to an estate" in this Code include
the probate of wills, the issuance of letters testamentary and of administration, the
determination of heirship, and also include, but are not limited to, all claims by or
against an estate, . . . and generally all matters relating to the settlement, partition,
and distribution of estates of deceased persons.


Id. § 5A(a) (emphasis added).  Appellants rely on this language, as well as Bailey v. Cherokee
County Appraisal District, 862 S.W.2d 581 (Tex. 1993), to argue that the county court at law had
exclusive jurisdiction over Sheffield's claims because the administration of Frank Smith's estate was
already pending when this lawsuit was originally filed in the district court.  Sheffield's claims,
however, are not against Smith's estate and relate to the settlement of his estate only to the extent
that Smith owned stock in the defendant Corporation at the time of his death.
	In Bailey, the supreme court was presented with the "question whether a suit to collect
ad valorem taxes accruing on estate property during administration is a claim against the estate,
properly filed in probate court, or a claim for which heirs are personally liable," so that the action
could be filed in district court.  Id. at 582.  The supreme court determined that ad valorem taxes
accruing during administration are classified as claims against the estate within the statutory
definition of "matters incident to an estate"; therefore, "because the ongoing administration in the
county court at law sitting in probate was the only probate proceeding pending, that court alone had
jurisdiction over matters incident to the estate."  Id. at 585-86.  Although the district court has
probate jurisdiction in some instances, where the probate proceeding was first filed in the statutory
county court, the latter had dominant jurisdiction.  Id.  Here, however, appellants make no argument,
cite no authority, and refer us to no evidence in the record by which to conclude that Sheffield's
claims against the Corporation and one of its officers somehow constitute claims "against the estate"
of Frank Smith. (5)  Without deciding the merits of the case, we note that although Sheffield and Smith
may have negotiated an agreement, the allegations reflect that Smith was acting as an agent for the
Corporation.  All of Sheffield's allegations are against the Corporation and another of its officers. 
And although shares in the Corporation may constitute some of the personal property Frank Smith
owned at his death, Frank Smith's, Inc. is a separate legal entity and, therefore, not the property of
the decedent.  Thus, appellants' reliance on Bailey is misplaced to the extent they argue that the trial
court had exclusive jurisdiction because Sheffield's claims constitute "claims against the estate."
	The trial court below did not dismiss Sheffield's cause of action on the ground that
it was not a matter "incident to" the estate of Frank Smith.  Rather, relying on this Court's opinion
in Goodman v. Summit at West Rim, Ltd., 952 S.W.2d 930 (Tex. App.--Austin 1997, no pet.), the
court dismissed on the basis that "an estate is an indispensable party to any proceeding in the probate
court."  Id. at 933.  In Goodman, the executor of an estate filed an action to clear title to property she
claimed was part of the estate; the decedent had entered into a contract to sell the property before her
death, but the purchaser had not accomplished all of the obligations he had to meet before the
purchase.  Id. at 932.  The purchaser counterclaimed against the executor and another owner of the
property for specific performance, as well as filing a third-party action against the City of Austin for
not issuing the approvals necessary for him to complete the purchase contract.  Id.  The probate court
exercised jurisdiction over all of the actions, but later dismissed all claims by and against the estate. 
After the estate administration concluded, upon motion by the third-party defendants the court
determined that it had no remaining jurisdiction over the third-party claims and dismissed them
without prejudice.  Id.  We held that the probate court "may only exercise 'ancillary' or 'pendent'
jurisdiction over a claim that bears some relationship to the estate.  Once the estate settles, the claim
is 'ancillary' or 'pendent' to nothing, and the court is without jurisdiction." Id. at 933.
	Sheffield expands on this holding to argue that "the probate court's jurisdiction over
matters 'appertaining or incident' to an estate was never properly invoked.  The personal
representative of the estate was never made a party."  We agree.  After a review of Sheffield's
pleadings and the record before us, we are satisfied that from the face of the record it is apparent that
Rick Smith, the independent executor, was never joined as a party to Sheffield's suit.  Appellants
do not challenge the trial court's finding on this point by directing us to contrary evidence in the
record.  Thus, because the estate's personal representative, an "indispensable party," was never made
a party to this suit, the trial court could not render or enforce a judgment against or binding upon the
estate.  See id. at 933 ("The estate's presence is required for the determination of any proceeding that
is ancillary or pendent to an estate.").  Further, even if Smith's personal representative could have
been joined, it is unclear to what end. Sheffield urged no claim against Smith or his estate and Smith
himself had never been joined as a party.  This is not a situation, therefore, in which Smith's personal
representative could simply be substituted for Smith.
	Appellants argue that Rick Smith was already a party to the same cause number in
which the lawsuit was being litigated; therefore, he did not need to be formally joined and no
additional service was required.  According to appellants, Sheffield's claims resided within the
"overarching jurisdiction" of the trial court conferred on it by Rick Smith's filing of the application
for probate.  We disagree.  A county court at law functioning as a probate court does so primarily
for the limited purpose of administering decedents' estates.  See generally Tex. Prob. Code Ann.
§§ 5, 5A (West Supp. 2002).  The trial court had discretion to resolve Sheffield's claims against
appellants to the extent they were necessary to resolve matters "incident to" the estate.  See id. at
934.  But the trial court could not exercise that discretion without the presence of the estate's
personal representative as a party to the lawsuit brought by Sheffield.  The consolidation of
Sheffield's lawsuit with the estate administration proceeding did not accomplish that purpose. 
	Furthermore, we cannot say that the trial court abused its discretion by holding that
it lost jurisdiction.  See Sabine Gas Transmission Co. v. Winnie Pipeline, 15 S.W.3d 199, 201 (Tex.
App.--Houston [14th Dist.] 2000, no pet.) (stating issue as whether "a probate court abuse[s] its
discretion by holding that it loses jurisdiction over claims which it has ancillary or pendent
jurisdiction when no other claims before the court have any relationship to those claims even though
the estate administration is still pending").  Sheffield's lawsuit was transferred to the probate
proceeding because the parties agreed that it was a matter incident to Smith's estate.  However,
because there was never any attempt to make it an action incident to the estate by naming the estate
or the representative as a defendant, the trial court could decide that its continued entertainment of
Sheffield's claims did not efficiently promote the administration of Smith's estate, and that those
claims should be decided elsewhere. (6)  Because the trial court found that it never properly acquired
jurisdiction, it was not an abuse of discretion to dismiss without prejudice.
	Appellants attempt to avoid the failure to name the estate representative as a
defendant by arguing that Rick Smith testified by deposition and generally supported appellants'
position in the trial court, and as a result the requirements of probate jurisdiction were satisfied.  It
is well-settled law that the estate of a decedent is not a legal entity and may not sue or be sued as
such.  Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex. 1975).  Thus, a suit seeking to
establish liability against a decedent should ordinarily be instituted against the personal
representative or, under appropriate circumstances, against the heirs or beneficiaries.  Id. Appellants
cite Dueitt v. Dueitt, 802 S.W.2d 859 (Tex. App.--Houston [1st Dist.] 1991, no writ), in which the
court declined to invalidate a summary judgment granted on behalf of a decedent's estate. The
plaintiff's petition in Dueitt was brought solely in the name of the decedent's estate; however, the
court noted that the coexecutor of the decedent's estate attached an affidavit to the petition attesting
to the truth of the allegations contained therein.  A similar affidavit was attached to a response to a
summary-judgment motion.  The court concluded that the coexecutor "did actively appear in his
representative capacity on behalf of the party plaintiff in the case" by "verifying the allegations of
the plaintiff's petition."  Id. at 861.
	In contrast, a review of the record here shows that Rick Smith did not actively
participate in the suit in his capacity as the independent executor of Frank Smith's estate or in any
other legal capacity related to Smith's estate.  See Supak v. Zboril, 56 S.W.3d 785, 794 (Tex.
App.--Houston [14th Dist.] 2001, no pet.).  Rather, he appeared at his deposition only in his
capacity as an officer and shareholder of the Corporation and as a fact witness to the events giving
rise to the suit.  Nowhere in that deposition did he mention his capacity as executor of the estate,
much less that he was appearing in such capacity.  Furthermore, the record does not contain any
pleadings, affidavits, verifications or other evidence showing Rick Smith participated in the case as
the purported representative of Frank Smith's estate so as to make the judgment binding against him
in that capacity.   See id.  Because we agree with the trial court that neither party joined Rick Smith
to the action in his capacity as the independent executor of Frank Smith's estate, which was
necessary for the trial court to exercise its probate jurisdiction over the lawsuit, we overrule
appellants' third, fourth, and seventh issues.

The Trial Court's General Statutory Jurisdiction
	In their second, fifth, and sixth issues, appellants essentially contend that the trial
court erred by limiting its jurisdiction to that conferred upon it by section 5A(a) of the probate code,
even though this was the basis for jurisdiction alleged by Sheffield.  According to appellants, even
if the trial court's probate jurisdiction fails because Rick Smith was never made a party, the trial
court nevertheless had jurisdiction over the lawsuit pursuant to its general jurisdictional statute. 
Chapter 25 of the government code sets out the jurisdiction of the county courts at law.  Section
25.0003(c) provides:

(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 $100,000, excluding interest, statutory or punitive damages and
penalties, and attorney's fees and costs, as alleged on the face of the
petition . . . .


Tex. Gov't Code Ann. § 25.0003(c)(1) (West Supp. 2002).  We agree with appellants to the extent
that a county court at law ordinarily can exercise concurrent jurisdiction over a civil lawsuit like the
current controversy pursuant to this statutory authority, regardless of its probate jurisdiction. 
However, because the trial court in this case found that the matter in controversy exceeded $100,000,
we must reject appellants' overall contention.
	Appellants argue that the trial court's finding is immaterial because Sheffield's
pleadings invoked the trial court's jurisdiction by stating that the unliquidated damages sought were
"within the jurisdictional limits" of the court.  See Tex. R. Civ. P. 47(b).  Although the trial court
must liberally construe the plaintiff's allegations in favor of jurisdiction if the face of the petition
does not affirmatively demonstrate a lack of jurisdiction, see Peek, 779 S.W.2d at 804, the trial court
had the discretion to consider evidence at the hearing on subject matter jurisdiction.  See Bland, 34
S.W.3d at 554.  As we noted earlier, we have not been presented with a reporter's record of the
hearing at which the trial court considered Sheffield's challenge to the jurisdiction.  Sheffield states
in his brief that the trial court considered summary judgment evidence, including the March 6, 2000,
agreement, which formed the basis for the lawsuit, and we must presume that sufficient evidence was
produced to support the trial court's finding that the suit involves an amount "greater than" its
jurisdictional limit.  See Scott, 783 S.W.2d at 28.  We may consider evidence beyond the face of the
pleadings and must do so when necessary to resolve the jurisdictional issue raised.  See Bland, 34
S.W.3d at 554.  Appellants do not direct us to any contrary evidence in the record, and therefore fail
to satisfy their burden in making a legal sufficiency challenge in their second issue.
	Appellants also challenge the trial court's factual finding by arguing that in the event
the matter in controversy exceeds the trial court's jurisdiction, "the remedy is to reduce the damage
award, not dismiss the case."  For support, appellants cite Picon Transportation, Inc. v. Pomerantz,
814 S.W.2d 489 (Tex. App.--Dallas 1991, writ denied).  In Picon, the plaintiff's petition sought
recovery of damages in an amount "not less than" $49,860, which was below the then $50,000
jurisdictional limit for the Collin County court at law.  Id. at 490.  The jury awarded the plaintiff
$125,000; because the $75,000 in excess of the jurisdictional limit did not accrue as a result of the
passage of time, the court held that the trial court erred in rendering this judgment.  Id.  However,
because the plaintiff's last live pleading requested an amount within the jurisdictional limit, the court
modified the judgment to reduce the damages from $125,000 to $49,860.  Id. at 491.
	We find Picon to be inapplicable to the current controversy.  Here, damages were
never awarded, and thus there are no damages to reduce.  Unlike Picon, the trial court considered
evidence before trial and determined that the matter in controversy was beyond its jurisdictional
limits.  The Bell County court at law is a creature of statute, intended by the legislature to be a court
of concurrent but limited jurisdiction.  See Tex. Gov't Code Ann. § 25.0003(c)(1).  Here, the trial
court determined, after a review of the pleadings and the evidence, that it never acquired jurisdiction
because the amount in controversy exceeded $100,000.  Because appellants make no attempt to
direct this Court to evidence that would weigh against the trial court's finding of fact, we cannot say
that the trial court erred by limiting its potential jurisdiction to that set out in section 5A of the
probate code.  We therefore overrule appellants' second, fifth, and sixth issues.  Furthermore, we
hold that the trial court did not err in dismissing the case for lack of subject matter jurisdiction and
thus overrule appellants' first issue.

Additional Discussion
	As we noted initially, the parties take reversed positions in this appeal.  The appellee,
as plaintiff, supports the dismissal of his claims, and the appellants, the defendants below, want the
action against them reinstated.
	Without regard to the reasons given by the trial court for its action, however, or any
legal justification for the trial court's ruling, we believe that there is a less complicated basis for our
decision of this appeal.  We will uphold a trial court's proper ruling even if based upon an erroneous
reason.  The events here are straightforward.  The appellants filed a motion for summary judgment,
which the trial court granted, ruling that the plaintiff take nothing on his claims.  Appellee filed a
motion for new trial and at the hearing moved to dismiss his own cause of action.  Within what
would constitute its plenary jurisdiction, the trial court set aside its judgment, which it was entitled
to do,  and granted appellee's motion to dismiss his cause.  The result is that appellee's cause was
dismissed and no action remains pending against appellants.
	Even if appellants disagree with the trial court's reasoning, appellants have not
demonstrated that the trial court erred in taking the action it did.  For these reasons, as well, we
affirm the trial court's order of dismissal.
CONCLUSION

	We conclude that appellants have not shown that the trial court wrongly dismissed
the case for lack of subject matter jurisdiction because the matter in controversy exceeded $100,000
and because the independent executor of Frank Smith's estate was never properly joined as a party
so as to invoke the trial court's probate jurisdiction.  For these reasons and the further reasons stated
above, we overrule all of appellants' issues, and we affirm the judgment of the trial court.


					__________________________________________
					Marilyn Aboussie, Justice
Before Justices Patterson, Puryear and Aboussie*
Justice Patterson concurs in the judgment only.
Affirmed
Filed:   January 30, 2003
*	Before Marilyn Aboussie, Chief Justice (retired), Third Court of Appeals, sitting by assignment. 
See Tex. Gov't Code Ann. § 74.003(b) (West 1998).
1.   The record reflects that the corporation based its argument on the probate code, see, e.g.,
Tex. Prob. Code Ann. §§ 5(c), (f), 5A(a) (West Supp. 2002), as well as constructions of those
provisions in Bailey v. Cherokee County Appraisal District, 862 S.W.2d 581 (Tex. 1993), and
Carlisle v. Bennett, 801 S.W.2d 589 (Tex. App.--Corpus Christi 1990, no writ).  These matters are
addressed below.
2.   According to Sheffield's amended petition, jurisdiction was proper in the county court at
law pursuant to section 5A(a) of the probate code, "as the estate of Frank Smith is pending in this
Court and this is a case which is 'appertaining or incident to an estate' within the meaning of the
Probate Code."  See Tex. Prob. Code Ann. § 5A(a).
3.   In addition, the trial court ordered that it retained probate jurisdiction "over all other
pending matters in this probate proceeding." 
4.   In their second issue, appellants challenge the first finding (as listed above) as being
immaterial, or alternatively, as being a mixed finding of fact and conclusion of law supported by no
evidence as a finding of fact, or as being clearly erroneous as a conclusion of law.  In their third and
fourth issues, they challenge, respectively, the second and third findings (as listed above) as being
mixed findings of fact and conclusions of law supported by no evidence as findings of fact, or as
being clearly erroneous as conclusions of law.  Without a complete reporter's record, challenges to
the sufficiency of the evidence cannot succeed.  See Scott v. Schneider Estate Trust, 783 S.W.2d 26,
28 (Tex. App.--Austin 1990, no writ).

	In their fifth issue, appellants contend that the trial court's first and fifth conclusions of law
are erroneous.  In their sixth issue, appellants contend that the trial court's second conclusion of law
is "erroneous in so far as it limits the Trial Court's jurisdiction to §5A of the Texas Probate Code." 
Finally, in their seventh issue, appellants challenge the third and fourth conclusions of law as being
immaterial and therefore erroneous.
5.   The probate code defines "claims" to include "liabilities of a decedent which survive." 
Tex. Prob. Code Ann. § 3(c) (West Supp. 2003).  "Estate" denotes "the real and personal property
of a decedent, both as such property originally existed and as from time to time changed in form by
sale, reinvestment, or otherwise, and as augmented by any accretions and additions thereto . . . and
substitutions therefor, and as diminished by any decreases therein and distributions therefrom."  Id.
§ 3(l).
6.   Because the estate was never made a party, we reject appellants' argument that the trial
court retains probate jurisdiction over Sheffield's claims because the estate administration is still
pending.  Cf. Sabine Gas Transmission Co. v. Winnie Pipeline, 15 S.W.3d 199, 201 (Tex.
App.--Houston [14th Dist.] 2000, no pet.) (holding trial court abused discretion where estate was
still party to probate proceeding when trial court dismissed ancillary and pendent claims).

