law-concurrent jurisdiction | federal-preemption | concurrent jurisdiction
Gammill v. Fettner (Tex.App.- Houston [14th Dist.] Jun. 16, 2009)(Frost)
(probate court district court concurrent jurisdiction, motion for new trial overruled)
AFFIRMED: Opinion by Justice Kem Frost
Before Justices Frost, Brown and Boyce
14-07-00705-CV Cecil Gammill, Jr. and Jaime Martinez v. David A. Fettner, Trustee of The Gammill Family
Trust, John Gammill, Kathleen Bungard, Laura Gammill, Janice Phillips, and Daniel Gammill
Appeal from 190th District Court of Harris County
Trial Court Judge: Jennifer Elrod Walker
Gammill v. Gammill (Tex.App.- Houston [14th Dist.] Jun. 16, 2009)(Frost)(probate court had jurisdiction)
REVERSED AND REMANDED: Opinion by Justice Frost
Before Justices Frost, Brown and Boyce
14-07-01013-CV Cecil Gammill, Jr. v. John Gammill, Daniel Gammill, Kethleen Gammill Bungard, Janice Marie
Gammill, Laure May Gammill, The Estate of Jackie Marie Gammill, and the Gammill Family Trust
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Michael James Wood
Palisades Acquisition XVI, LLC v. Chatman (Tex.App.- Houston [14th Dist.] Jun. 16, 2009)(Frost)
(suit to confirm arbitration award under FAA erroneously dismissed by trial court; Harris County county court at
law found to have jurisdiction to confirm arbitration award, state-federal concurrent jurisdiction)
REVERSED AND REMANDED: Opinion by Justice Frost
Before Justices Frost, Brown and Boyce
14-08-00108-CV Palisades Acquisition XVI, LLC v. Howard Chatman
Attorney for Appellant: Michael J. Adams
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: R. Jack Cagle
Application of the Plea to the Jurisdiction to the State Law Claims
In effect, Shippers treats the real parties in interest's claims under the state wrongful-death and survival
statutes as if the parties actually sought compensation under the LHWCA. The real parties in interest,
however, do not assert claims for compensation under the LHWCA. As plaintiffs, each real party in interest “is
master to decide what law he will rely upon,"[11] and here, each plaintiff has brought against Shippers only
state-law claims pursuant to the wrongful-death and survival statutes. By arguing that such claims are
preempted, Shippers has raised an affirmative defense. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63 (1987)
(“Federal pre-emption is ordinarily a federal defense to the plaintiffs' suit."); Harrill v. A.J.'s Wrecker Serv., Inc.,
27 S.W.3d 191, 194 (Tex. App.- Dallas 2000, pet. dism'd w.o.j) (“Preemption is an affirmative defense."). But
regardless of the merit of that defense to the specific claims pleaded in this case - a question that we do not
reach - its assertion does not deprive the state trial court of subject-matter jurisdiction. See Mills v. Warner
Lambert Co., 157 S.W.3d 424, 426 (Tex. 2005) (per curiam) (stating that federal preemption is generally an
affirmative defense to suit but does not ordinarily deprive a state court of jurisdiction). Moreover, we will not
recharacterize the state-law claims asserted by the real parties in interest as federal claims. See Aaron v. Nat'l
Union Fire Ins. Co. of Pittsburg, Pa., 876 F.2d 1157, 1164-65 (5th Cir. 1989) (concluding that LHWCA did not
so preempt field of state law that state action for wrongful death of the longshoreman had to be recharacterized
as stating federal cause of action, as would authorize removal), cert. denied, 493 U.S. 1074 (1990); Tex.
Employers' Ins. Ass'n v. Jackson, 862 F.2d 491 (5th Cir. 1988) (holding that rights created by the LHWCA are
not uniquely federal rights enforceable in federal court of equity so as to permit injunction against state court
action based on state law claims which are preempted by the Act), cert. denied, 490 U.S. 1035 (1989). The
trial court therefore did not abuse its discretion in denying Shippers's plea to the jurisdiction concerning these
claims. See Mills, 157 S.W.3d at 425 (“State-court jurisdiction is affected only when Congress requires that
claims be addressed exclusively in a federal forum."); Romney v. Lin, 105 F.3d 806, 813 (2d Cir. 1997) (“There
are thus some cases in which a state law cause of action is preempted, but only a state court has jurisdiction to
so rule."). In re Shippers Stevedoring Co. (Tex.App.- Houston [14th Dist.] Nov. 20, 2008)(Guzman)
(workers comp, federal preemption claim, jurisdiction issue, exclusive remedy, nonsubscriber)