In Hawes v. Peden, a client sued a deceased attorney’s estate and her law firm in district court due to the attorney failing to finish the representation before her death. No. 06-19-00053-CV, 2019 Tex. App. LEXIS 10841 (Tex. App.—Texarkana December 16, 2019, no pet. history). The law firm filed a plea to the jurisdiction, alleging that the statutory probate court where the attorney’s estate was pending had exclusive jurisdiction over the dispute. The trial court agreed, and the plaintiff appealed the dismissal order.

The court of appeals discussed the statutory probate court’s jurisdiction:

“In a county in which there is a statutory probate court, the statutory probate court has original jurisdiction of probate proceedings.” Tex. Estates Code Ann. § 32.002(c). “In a county in which there is a statutory probate court, the statutory probate court has exclusive jurisdiction of all probate proceedings . . . .” Tex. Estates Code Ann. § 32.005(a). “A cause of action related to the probate proceeding must be brought in a statutory probate court unless the jurisdiction of the statutory probate court is concurrent with the jurisdiction of a district court as provided by Section 32.007 or with the jurisdiction of any other court.” Tex. Estates Code Ann. § 32.005(a). The term “probate proceeding,” as used in the Texas Estates Code, has been defined to include “an application, petition, motion, or action regarding the probate of a will or an estate administration, including a claim for money owed by the decedent.” Tex. Estates Code Ann. § 31.001(4) (Supp.); see Tex. Estates Code Ann. § 22.029 (“probate matter,” “probate proceedings, “proceeding in probate,” and “proceedings for probate” are synonymous and include matters or proceedings related to decedent’s estate). “[A] matter related to a probate proceeding includes . . . an action for trial of the right of property that is estate property.” Tex. Estates Code Ann. § 31.002(a)(6), (c)(1) (defining matters “related to a probate proceeding”).

Id. The court then concluded that the plaintiff sought damages against the estate that would, if awarded, be satisfied from property of the estate. Id. (citing In re Hannah, 431 S.W.3d 801, 809-810 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding) (because suit sought damages which would be satisfied from defendant’s individual assets rather than from estate property, claims were not related to probate proceeding)). The court affirmed the dismissal and concluded: “Because the petition names Peden’s estate as a defendant and seeks damages directly from the estate, the petition is properly classified as a matter related to the probate proceeding. As such, the trial court was correct to dismiss the lawsuit because the Harris County Probate Court No. 1 had exclusive jurisdiction over this matter.” Id.

Tags: claims against the estate, estate claims, exclusive jurisdiction, jurisdiction, jurisdiction for claims against an estate, probate jurisdiction
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Photo of David Fowler Johnson David Fowler Johnson

[email protected]
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law Review, St. Mary’s Law Journal, South Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law
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