J. C. Sheppard and W. D. Sheppard v. 5-Star Toxicological Analysis & Consulting ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

J. C. Sheppard and W. D. Sheppard

Appellants

Vs.                   No.  11-01-00105-CV B Appeal from Dallas County

5-Star Toxicological Analysis & Consulting

Appellee

5-Star Toxicological Analysis & Consulting (5-Star) sued Wentworth Carter in the Justice of the Peace Court in Dallas County. Carter appealed the $4,396.00 judgment entered against him and filed an appeal bond. J. C. and W. D. Sheppard were sureties on the appeal bond dated August 26, 1998.

Wentworth Carter was killed in a car accident while his appeal was pending.  His widow, Norma J. Carter, as the independent executor of his estate, substituted herself in the suit.  Later, Norma, as executor, entered into an Agreed Judgment with 5-Star for $6,000.00. 5-Star=s attempts to collect its judgment from Carter=s estate were unsuccessful. 

In this case, 5-Star sued the Sheppards, the sureties on the appeal bond for Carter,  in County Court at Law No. 2 in Dallas County seeking the amount of the agreed judgment as well as attorney=s fees and costs.  The Sheppards filed a plea to the jurisdiction and an answer.  5-Star filed a traditional motion for summary judgment.  While the motion for summary judgment was pending, the Sheppards filed a plea in abatement and motion to transfer.  The trial court denied the Sheppards= plea to the jurisdiction, plea in abatement, and motion to transfer and granted 5-Star=s Motion for Summary Judgment for $6,930.93 and post-judgment interest and attorney=s fees. The Sheppards appeal.  We affirm.

In their first issue, the Sheppards assert that the trial court erred in overruling their plea to the jurisdiction.  The Sheppards argue that the trial court did not have jurisdiction over the subject matter of this lawsuit because the outcome of the first lawsuit, between 5-Star and Carter=s estate, involved matters Aincident to an estate@; and, pursuant to the Texas Probate Code, this lawsuit between 5-Star and the Sheppards was required to be tried in the probate court.  We disagree. 

Probate courts may hear all suits, actions, and applications filed against or on behalf of any heirship proceeding or decedent=s estate.  TEX. PROB. CODE ANN. ' 5A (Vernon Supp. 2002).  Consequently, the probate court would  have had concurrent jurisdiction,  not exclusive jurisdiction, over this suit.  The Sheppards= first issue is overruled.

In their fourth issue, the Sheppards assert that the trial court erred in denying their motion to transfer.  TEX.R.CIV.P. 86 provides that an objection to improper venue is waived if not made by written motion filed prior to, or concurrently with, any other plea, pleading, or motion.  The Sheppards filed their answer on February 7, 2000, and their motion to transfer on December 8, 2000. The motion was not timely.  The Sheppards have waived any complaints about venue.

Also, in this fourth issue, the Sheppards complain that the trial court abused its discretion in denying their plea in abatement.  After 5-Star filed this suit against the Sheppards, the Sheppards initiated a separate suit against Carter=s estate seeking to recover the amount of the agreed judgment. The Sheppards sought an abatement of this case until the conclusion of their suit against the estate.  Assuming, without agreeing that these two suits involve the same subject matter, the court with the first-filed case has dominant jurisdiction and should proceed, and the other cases should abate.  Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex.2001); Wyatt v. Shaw Plumbing Company, 760 S.W.2d 245, 247 (Tex.1988).  The trial court did not abuse its discretion.  The Sheppards= fourth issue is overruled.

In their second and third issues, the Sheppards assert that the trial court erred in granting 5-Star=s Motion for Summary Judgment.  When reviewing a traditional motion for summary judgment, the following standards apply:  (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.  TEX.R.CIV.P. 166a; Goswami v. Metropolitan Savings and Loan Association, 751 S.W.2d 487, 491 (Tex.1988); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 676 (Tex.1979).

The bond at issue reads:

WHEREAS, in Cause No. JS-9800281N, styled as above, tried before the Honorable Robert A. Foreman, a Justice of the Peace of Dallas County, Texas, judgment was rendered in favor of 5-Star Toxicological Analysis, Plaintiff, and against Wentworth Carter, Defendant, for damages in the sum of $4,396.00 and all costs of the Court, from which judgment Wentworth Carter desires to appeal to the County Court of Dallas County, Texas and

WHEREAS, Appellant desires to suspend execution of said judgment pending determination of such appeal

NOW, THEREFORE, WE, Wentworth Carter, as principal, and J.D. Sheppard and Wallace D. Sheppard, two good and sufficient sureties, as surety, acknowledge ourselves bound to pay to 5-Star Toxicological Analysis, obligee, the sum of $8,793.00, conditioned, however, that the above-named principal shall prosecute the appeal with effect and shall pay off and satisfy the judgment that may be rendered against him on appeal.

The county court at law had jurisdiction over the lawsuit.  TEX.R.CIV.P. 152 specifically provides that, when a defendant dies, the suit shall proceed against the administrator or executor. There is a valid judgment in the record.  Paul A. Hoffman, 5-Star=s attorney, testified in an affidavit attached to the motion for summary judgment that he made demands on the Estate of  Carter and on the Sheppards but that the judgment remains unsatisfied.  There is no evidence in the record controverting these facts.    

The Sheppards urge Lawyers Surety Corporation v. Riverbend Bank, N.A., 966 S.W.2d 182, 188 (Tex.App. B Fort Worth 1998, no pet=n), for the proposition that entering into an agreed judgment that alters the terms of a statutory judgment bond without the surety=s consent is a type of fraud or collusion by the principal and creditor and, consequently, are not liable on the bond. The Sheppards urge that Norma, as executor, by agreeing to a judgment, did not Aprosecute the appeal with effect.@  We disagree.

In this case, unlike Lawyers Surety Corporation,  the agreed judgment did not alter the terms of the bond.  See Howze v. Surety Corporation of America, 584 S.W.2d 263 (Tex.1979).  Liability is determined by the language of the bond itself. Geters v. Eagle Insurance Company, 834 S.W.2d 49, 50 (Tex.1992); Howze v. Surety Corporation of America, supra at 266.  The sureties are liable to any judgment rendered in the cause within the limit of their obligation. The language of the bond provides that the Sheppards, as sureties, Ashall pay off and satisfy the judgment that may be rendered against [Carter=s estate] on appeal.@  Summary judgment was appropriate.  The Sheppards= second and third issues are overruled.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

May 16, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.