in the Estate of Emery Danielle Bowie ( 2008 )

In The

Court of Appeals

Ninth District of Texas at Beaumont ____________________

NO. 09-08-204 CV ____________________

IN THE ESTATE OF EMERY DANIELLE BOWIE

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On Appeal from the County Court Jefferson County, Texas Trial Cause No. 95,264

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MEMORANDUM OPINION

This is an appeal from the constitutional county court's order denying Peggy Bowie's motion requesting transfer pursuant to section 5(b) of the Texas Probate Code. See Tex. Prob. Code Ann. § 5(b) (Vernon Supp. 2008). In two issues, Peggy Bowie contends the trial court erred by denying her motion to transfer, and that the trial court's finding that she is not a creditor of the estate is against the great weight and preponderance of the evidence. We reverse and remand.

Background

The decedent's surviving spouse, Sharecka Bowie, filed an application for administration and heirship in the county court. In her application, Sharecka stated that the decedent died without a will, and that he had one child, C.I.B. Sharecka further stated that the decedent's parents were Peggy Bowie and Jimmie Ray Bowie, and that the decedent also had three surviving siblings. Sharecka's application indicated that she and C.I.B. were the decedent's only heirs, and that administration was needed to administer the estate's property as well as litigation styled Carnikka Thomas as Next Friend of [C.I.B.] v. Standard Constructors, Inc., which was filed in the 136th District Court of Jefferson County, Texas. Without having been served with a copy of the application, Peggy filed an answer to Sharecka's application, in which she requested appointment as administrator and contended that Sharecka was "disqualified" and "unsuitable" to serve as administrator. ⁽¹⁾

Sharecka filed an objection to Peggy's answer, in which she argued that Peggy was not an heir under the laws of intestate succession and therefore lacked standing "to either file an answer or seek to be appointed as the Independent Administrator in this matter, over and above the surviving wife. . . ." See Tex. Prob. Code Ann. § 38(b) (Vernon 2003) (When an intestate person dies leaving a surviving spouse and a child, the surviving spouse takes one-third of the personal estate, and the balance of the personal estate passes to the decedent's child or his descendants. The surviving spouse is entitled to a life estate in one-third of the decedent's land, with the remainder of the land passing to the decedent's child and his descendants.). In her response, Sharecka argued that section 76 of the Texas Probate Code only permits an interested person to serve as administrator of an estate, and that the person's interest must be a pecuniary one that will be affected by the probate. See Tex. Prob. Code Ann. § 76(c) (Vernon 2003). Sharecka asserted that Peggy did not have a pecuniary interest in the estate, and that under section 77(b) of the Texas Probate Code, the surviving spouse is "first in line in priorities to be appointed the Administrator[.]" See id. § 77(b). In addition, Sharecka contended that Peggy was "unsuitable" to serve because Peggy sought appointment as administrator "to get a better position to pursue legal fees based on a corresponding personal injury lawsuit with respect to Emery Danielle Bowie, Deceased, and is not seeking appointment in the best interest of the Estate." See id. § 78(e). Sharecka therefore maintained that Peggy lacked standing to request appointment as executor and to oppose Sharecka's appointment as administrator. Sharecka also filed a motion to dismiss Peggy, in which she asserted that Peggy lacked standing because Peggy was not an heir, was not entitled to a distribution under the estate, and was not an "interested person" as required by the Texas Probate Code.

Peggy filed a response to the motion to dismiss, in which she asserted that she was a creditor of the estate because she had paid funeral expenses and had advanced funds to the decedent during his lifetime. Peggy then filed a "Motion Requesting Assignment Pursuant to Texas Probate Code, Rule 5," in which she contended that the county court must transfer the case to the county court at law, since her pleadings challenging Sharecka's qualifications to serve as administrator made the case a contested probate. See Tex. Prob. Code Ann. § 5(b). In response to Peggy's motion, Sharecka asserted that Peggy was not a party and lacked standing to bring the motion. After hearing the arguments of counsel at two hearings, the county court denied Peggy's motion on March 5, 2008. On the same date, the trial court also entered orders that appointed Sharecka as administrator and granted Sharecka's motion to dismiss Peggy. Peggy then filed this appeal, in which she contends the trial court erred by refusing to assign the case to the county court at law, and that the trial court's finding that she is not a creditor of the estate is against the great weight and preponderance of the evidence.

Analysis

Because Peggy's motion to transfer involves construction or interpretation of section 5(b) of the Texas Probate Code, which is a question of law, we apply a de novo standard of review. See Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002); Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989); see also Tex. Prob. Code Ann. § 5(b). Section 10 of the Texas Probate Code provides as follows: "Any person interested in an estate may, at any time before any issue in any proceeding is decided upon by the court, file opposition thereto in writing and shall be entitled to process for witnesses and evidence, and to be heard upon such opposition, as in other suits." Tex. Prob. Code Ann. § 10 (Vernon 2003). The Texas Probate Code defines "persons interested" as "heirs, devisees, spouses, creditors, or any others having a property right in, or claim against, the estate being administered[.]" Tex. Prob. Code Ann. § 3(r) (Vernon Supp. 2008). Section 5(b) of the Texas Probate Code provides as follows: "In contested probate matters, the judge of the county court . . . shall on the motion of any party to the proceeding, according to the motion: (1) request the assignment of a statutory probate court judge to hear the contested portion of the proceeding. . . ." Id. § 5(b). Texas courts have defined "contested probate matters" to include all matters in which the pleadings on file demonstrate that the parties to the suit have adopted adversary positions. Sivley v. Sivley, 972 S.W.2d 850, 856 (Tex. App.--Tyler 1998, no pet.) (citing Jackson v. Thompson, 610 S.W.2d 519, 522 (Tex. Civ. App.--Houston [1st Dist.] 1980, no writ)).

As previously discussed, Peggy Bowie had filed an application to be appointed temporary administrator, as well as an "answer," in which she objected to Sharecka's appointment as administrator and asserted that Sharecka was unqualified to serve. In addition, Peggy later filed a pleading in which she claimed to be a creditor of the estate for funeral expenses and money advanced to the deceased during his lifetime. Although Peggy titled her objection to Sharecka's appointment an "answer," courts are to examine the substance of the relief requested in the pleading, and the title assigned to the pleading is not determinative. See Tex. R. Civ. P. 45 ("All pleadings shall be construed so as to do substantial justice."); Tex. R. Civ. P. 71 ("When a party has mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated.); Surgitek v. Abel, 997 S.W.2d 598, 601 (Tex. 1999); State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (A court looks to the substance, not merely the title, to determine the nature of a pleading.). Therefore, we find that Peggy's pleadings were sufficient to constitute an assertion of her interest as a creditor as well as her objection to Sharecka's appointment as administrator, and that Peggy's pleadings made the proceeding a contested matter. See Tex. Prob. Code Ann. § 10; Sivley, 972 S.W.2d at 856. Likewise, we find that Peggy's pleadings were sufficient to make her a "party" to the proceeding as required by section 5(b). See Tex. Prob. Code Ann. § 5(b); Heard, 603 S.W.2d at 833. The trial court erred by denying Peggy's request to assign the contested matter to the county court at law. ⁽²⁾ We sustain issue one. We need not address issue two, as it would not result in greater relief. See Tex. R. App. P. 47.1. Accordingly, we reverse the trial court's orders of March 5, 2008, and we remand this cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

STEVE McKEITHEN

Chief Justice

Submitted on October 15, 2008

Opinion Delivered November 6, 2008

Before McKeithen, C.J., Gaultney and Horton, JJ.

1. Peggy had previously filed an application for temporary administration, in which she requested appointment as temporary administratrix. The trial court initially entered an order appointing Peggy temporary administratrix, but subsequently entered an order rescinding the appointment due to Peggy's failure to qualify as temporary administratrix.

2. We express no opinion regarding the merits of any of the claims and assertions made by Peggy Bowie in the trial court, including Sharecka's qualifications to serve as administrator, Peggy's request to be appointed administrator, or Peggy's claim to be a creditor of the estate.