Opinion issued April 5, = 2007
For=20 The
SHIRLEY =
MOORE YORK,=20
Appellant WILLIAM =
A. SAMUEL=20
and MARGARET SAMUEL, Appellees
On =
Appeal from the=20
Probate Court No. One Harris =
County,=20
Texas Trial =
Court Cause=20
No. 322,222-402
Appellant,=20
Shirley Moore York, appeals from a summary judgment rendered by =
the=20
probate court in favor of appellees, William A. Samuel and his=20
daughter-in-law, Margaret Samuel, that determined that the Samuels =
"are=20
the fee simple title owners" of the disputed property and that =
granted the=20
Samuels a writ of possession for the property. In a single issue, =
Shirley=20
challenges the probate court's rendition of summary judgment by =
asserting=20
that genuine issues of material fact exist concerning (1) the =
"validity of=20
the deed conveying the property to the Samuels by Margaret McNeil =
and her=20
sisters" and (2) the "existence of a constructive trust in favor =
of=20
Shirley York." Shirley also asserts that the justice court, which=20
originally heard the case before it was appealed to the county =
court at=20
law and before the county court at law transferred it to the =
probate court=20
at Shirley's request, lacked jurisdiction. We conclude that =
Shirley's=20
challenge to the jurisdiction does not require reversal because =
the=20
judgment before us is from the probate court, not the justice =
court. We=20
also conclude that the probate court had jurisdiction and properly =
found=20
that no fact issue existed. We affirm. The Samuels=20
originally filed a lawsuit to oust Shirley from the property in =
the=20
justice court . In the=20
probate court, the Samuels filed a motion for summary judgment. In =
their=20
motion for summary judgment, the Samuels asserted that "the =
undisputed=20
evidence establishes Plaintiffs purchased The Wentworth Property =
in fee=20
simple on February 29, 1996 and remain the record title owners." =
In the=20
"Conclusion" to their motion, the Samuels also asserted that they =
leased=20
the property to Shirley and that, after she was given written =
notice to=20
vacate the property, she refused. The Samuels contended that they =
"are the=20
record title holders of the property . . . and are entitled to =
regain=20
clear title to and possession of their property." The Samuels =
"ask[ed] for=20
summary judgment on all issues and all parties." The Samuels =
prayed that=20
"the court grant Plaintiffs immediate possession of The Wentworth=20
property." In the prayer of the motion for summary judgment, the =
Samuels=20
requested that the court grant their motion for summary judgment =
and=20
"grant Plaintiffs an immediate writ of possession to the property =
located=20
at 3443 Wentworth, Houston, Texas, and for such other relief, at =
law or in=20
equity to which the Plaintiffs may be justly entitled." Attached to=20
the Samuels' motion was the affidavit of Margaret Samuels, who =
averred=20
that she and her father-in-law bought the property at issue, that =
the=20
property was leased to the Yorks under a month-to-month lease that =
was=20
verbally agreed upon, that after Ben died, Shirley was served with =
a=20
notice of termination of the lease with a request for her to =
vacate the=20
property, and that Shirley refused to either vacate the property =
or pay=20
rent. The motion for summary judgment also included a copy of the =
deed=20
that the Samuels contend shows that they own the property. The =
deed is=20
dated February 29, 1996. The deed names as the grantors Margarete =
Lynnette=20
McNeil and her two sisters. The grantees are identified as William =
A.=20
Samuel and Margaret Y. Samuel. Shirley's=20
response to the motion for summary judgment denied the validity of =
the=20
deed that conveyed the property to the Samuels. Shirley also =
asserted that=20
she held equitable title to the property based on a constructive =
trust. The Samuels=20
challenged the evidence presented in Shirley's response to their =
motion=20
for summary judgment by requesting that the court strike both =
affidavits.=20
The Samuels "specifically except[ed]" to McNeil's affidavit on the =
grounds=20
that it was "objectionable as parole [sic] evidence and hearsay." =
The=20
Samuels also objected to Shirley's affidavit on the grounds that =
the=20
statements in the affidavit were based on hearsay. The probate =
court's=20
order sustained the special exceptions to the affidavits. =
The probate=20
court granted the Samuels' motion for summary judgment. The =
probate=20
court's judgment found that the Samuels were "the fee simple title =
owners=20
of 3443 Wentworth" and granted the Samuels a writ of=20
possession. Shirley=20
challenges the justice court's jurisdiction to hear the original =
lawsuit=20
filed by the Samuels by asserting that the evidence fails to show =
that=20
"the justice court had jurisdiction to hear this dispute" because =
a=20
"forcible entry and detainer (FED) suit cannot be used to =
determine title=20
to real property." However, the judgment before us in this appeal =
is=20
neither from the justice court nor from the county court at law =
that=20
received the appeal from the justice court. The judgment here is =
from the=20
probate court, which was administrating the estate of Ben York. =
The=20
probate court received the case when it was transferred there at =
Shirley's=20
request. Shirley has not challenged the jurisdiction of the =
probate court,=20
nor has she explained why the probate court would not have =
jurisdiction to=20
determine whether the estate of Ben York was entitled to the=20
property. Although=20
Shirley has not challenged the probate court's jurisdiction, we =
may=20
address the issue of jurisdiction sua sponte. Saudi v. =
Brieven,=20
176 S.W.3d 108, 113 (Tex. App.--Houston [1st Dist.] 2004, pet. =
denied). We=20
note that the probate court had jurisdiction to determine whether =
the=20
estate of Ben York was the owner of or had a possessory right to =
the=20
property because it was charged with the administration of his =
estate.=20
See Tex. Prob. Code Ann. =A7 5(h) (Vernon Supp. 2006) ("A =
statutory=20
probate court has jurisdiction over any matter =
appertaining to an=20
estate or incident to an estate and has jurisdiction over any =
cause of=20
action in which a personal representative of an estate =
pending in the=20
statutory probate court is a party.") (Emphasis added); =
Id.=20
=A7 5A(b) (stating that "the phrases 'appertaining to =
estates' and=20
'incident to an estate' . . . include . . . all claims by or =
against an=20
estate [and] all actions for trial of title to land . . . ."). We =
overrule=20
Shirley's challenge to the justice court's jurisdiction because =
the=20
judgment before us is from the probate court, not the justice =
court or the=20
county court at law. We also hold that the probate court had =
jurisdiction=20
to determine that the Samuels were "the fee simple title owners of =
3443=20
Wentworth" and to grant the Samuels a writ of =
possession. Shirley=20
challenges the summary judgment by contending that there is an =
issue of=20
fact (1) whether the deed conveying the property to the Samuels =
was valid=20
and (2) whether there was a constructive trust in favor of the =
Yorks.=20
Shirley points to the affidavit of McNeil and her own affidavit. =
The=20
probate court, however, ordered that the contents of these =
affidavits were=20
hearsay, and, in this appeal, Shirley has not challenged the =
probate=20
court's evidentiary ruling. Because Shirley has failed to =
challenge the=20
probate court's evidentiary ruling, we may not consider the =
evidence that=20
was struck by the court. See McClure v. Denham, 162 =
S.W.3d 346,=20
349 n.2 (Tex. App.--Fort Worth 2005, no pet.) (noting that =
appellate court=20
may only consider evidence properly before trial court when =
reviewing=20
propriety of summary judgment). The only evidence that Shirley =
contends=20
raised an issue of fact is the evidence that was struck by the =
trial=20
court. Shirley, thus, fails to point to any evidence that raises =
an issue=20
of fact. See Cunningham v. Columbia/St.David's Healthcare =
Sys.,=20
L.P., 185 S.W.3d 7, 14 (Tex. App.--Austin 2005, no pet.) =
(holding=20
that trial court properly granted summary judgment because =
affidavit=20
relied on by nonmovant to create fact issue was excluded by trial =
court).=20
On appeal,=20
Shirley has not asserted that the evidence presented by the =
Samuels raised=20
an issue of fact concerning the adequacy of the deed or the =
existence of a=20
constructive trust. We note that the Samuels' evidence =
conclusively=20
established that they were the fee simple title owners, that they =
leased=20
the property to the Yorks, and that Shirley failed to vacate the =
premises=20
after receiving notice that her lease had terminated. We hold that =
the=20
trial court did not err by granting summary judgment in favor of =
the=20
Samuels. See id. We overrule=20
Shirley's sole issue on appeal. We affirm=20
the judgment of the probate court. Elsa=20
Alcala Justice Panel consists of Justices =
Taft, Alcala,=20
and Hanks.=20
1. Both parties refer to the lawsuit as a =
"forcible=20
entry and detainer" suit. It is actually a "forcible detainer" =
suit.=20
Compare Tex. Prop. Code Ann. =A7 24.001(a) (Vernon 2000) =
("A person=20
commits a forcible entry and detainer if the person enters the =
real=20
property of another without legal authority or by force and =
refuses to=20
surrender possession on demand") with =A7 24.002(a)(1) =
(Vernon=20
2000) (stating person commits forcible detainer if person refuses =
to=20
surrender possession of real property and is "a tenant . . . =
holding over=20
after the termination of the tenant's right of possession.").=20
2. On appeal, Shirley also =
calls this=20
an "express" trust, seemingly using the terms=20
interchangeably.