August 10, 2020

Volume X, Number 223

August 10, 2020

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Court Held That Statutory Probate Court Had Jurisdiction To Grant A Rule 202 Pre-Suit Deposition

In In the Estate of Nicholas, the temporary administrator of an estate and the decedent’s mother filed a Texas Rule of Civil Procedure 202 petition concerning a shootout at a residence by the City of Houston Police Department. No. 14-19-00716-CV, 2020 Tex. App. LEXIS 2532 (Tex. App.—Houston [14th Dist.] March 26, 2020, no pet. history). The petitioners sought to investigate potential claims against the city. The city filed a plea to the jurisdiction, asserting that the petition failed as a matter of law because the statutory probate court lacked statutory subject-matter jurisdiction and other grounds. The court denied the plea, and an interlocutory appeal followed.

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

Section 32.005 of the Texas Estates Code provides that a “statutory probate court has exclusive jurisdiction of all probate proceedings, regardless of whether contested or uncontested.” Tex. Est. Code § 32.005(a) (emphasis added). In a county in which there is a statutory probate court, “a claim brought by a personal representative on behalf of an estate” is also a claim “related to [a] probate proceeding.” See Tex. Est. Code § 31.002(a)(3), (c)(1)-(2) (defining “matters related to a probate proceeding”)… In addition, Section 32.005(a) recognizes that the Estates Code provides for concurrent jurisdiction over some causes of action related to a probate proceeding.4Link to the text of the note Specifically, the statutory probate court has concurrent jurisdiction [*10]  with district courts in actions enumerated in Section 32.007. Tex. Est. Code § 32.005(a); see also Tex. Est. Code § 32.007. Section 32.007 of the Texas Estates Code provides that a statutory probate court has concurrent jurisdiction with a district court over several types of actions, including “a personal injury, survival, or wrongful death action by or against a person in the person’s capacity as a personal representative.” See id. § 32.007(1).

Id. The court then discussed Rule 202:

Texas Rule of Civil Procedure 202 provides a mechanism for requesting court authorization of pre-suit depositions to either (1) perpetuate or obtain testimony for use in an anticipated lawsuit, or (2) investigate a potential claim or suit. Tex. R. Civ. P. 202.1. … A Rule 202 petition must “be filed in the proper court of any county . . . .” Tex. R. Civ. P. 202.2(b). This court has previously held that “[a] proper court to entertain a Rule 202 petition is a court that would have subject-matter jurisdiction over the underlying dispute or anticipated lawsuit; thus, we must look to the substantive law of the underlying dispute or anticipated action to determine jurisdiction.”

Id. The court then analyzed the petitioners’ claims and held that the statutory probate court had subject matter jurisdiction over those claims:

The claims Petitioners seek to investigate include survival claims. “A personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person.” The personal representative of Rhogena’s estate is the proper party to bring a survival claim to recover damages Rhogena suffered before her death. … Accordingly, the potential survival claims Petitioners seek to investigate by the Rule 202 proceeding are matters “related to a probate proceeding” and therefore fall within a statutory probate court’s subject matter jurisdiction. Moreover, Estates Code section 32.007 provides separately that a statutory probate court has concurrent jurisdiction with the district court in, among other lawsuits, “a personal injury, survival, or wrongful death action by or against a person in the person’s capacity as a personal representative.” Jo Ann Nicholas is alleged to be Rhogena’s mother and has explained in the Rule 202 petition her desire to investigate, and her interest in, a potential wrongful death claim against the City. An action to recover damages for the wrongful death of a decedent is for the exclusive benefit of the surviving spouse, children, and parents of the deceased.

Id. Therefore, the court held that the trial court had subject matter jurisdiction over the Rule 202 petition and affirmed the denial of the plea to the jurisdiction.

© 2020 Winstead PC.National Law Review, Volume X, Number 134

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About this Author

David Johnson Financial Litigator Winstead Law Firm

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 Texas Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. 

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...

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