Thursday, November 3, 2011

Claim of an informal marriage (aka "common law marriage") five years after man's death fails

Landaverde v. Estate of Abedinzadeh (Tex.App.- Houston [14th Dist.] Nov. 1, 2011) (belated post-mortem claim of an informal marriage not successful)

In The
Fourteenth Court of Appeals
___________________
NO. 14-11-00143-CV
___________________
NOEMY LANDAVERDE, Appellant
V.
THE ESTATE OF HABIBOLLAH ABEDINZADEH, Appellee
On Appeal from Probate Court No. 2
Harris County, Texas
Trial Court Cause No. 358,163

M E MO R A N D U M    O P I N I O N


Appellant, Noemy Landaverde, appeals a summary judgment on her claim to establish common-law marriage to Habibollah Abedinzadeh.


We affirm.


Although the summary judgment is partial in that it does not dispose of the entire probate
proceeding, we have jurisdiction to consider appellant‘s appeal because the proceeding to determine the propriety of appellant‘s common-law marriage claim is not a proceeding that may logically be considered a part of the complete heirship proceeding. See Tex. Prob. Code Ann. § 5(g); Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995).2


Background


Habibollah Abedinzadeh died on July 8, 2005. On October 17, 2006, Mehdi
Abedinzadeb was appointed administrator of the estate. On January 20, 2010, appellant,
Noemy Landaverde, filed a notice of appearance, and asserted interest in the estate of
Abedinzadeh. Appellant alleged that she was the widow of Abedinzadeh having been
married to him for more than eight years through a common-law marriage.
On December 8, 2010, appellee, Maria de los Angels Ruiz, filed a motion for
traditional summary judgment and a motion for no-evidence summary judgment in which
she alleged appellant failed to produce evidence that she was married to Abedinzadeh, or
that there was no genuine issue of material fact as to whether appellant and Abedinzadeh
were married. Attached to the motion for summary judgment was appellant‘s deposition
in which she admitted that she had been ceremonially married to Fausto Ramirez on March
8, 2001. Appellant claimed to have been married by common-law marriage to
Abedinzadeh in 1992 when they began to live together. Also attached to the motion is a
warranty deed in which appellant and Ramirez purchased property as husband and wife.
Appellant produced no evidence in response to Ruiz‘s motion for summary judgment, and
on January 4, 2011, the trial court granted the summary judgment on no-evidence grounds.
On January 10, 2011, appellant filed a motion for rehearing of the motion for
summary judgment. Attached to her motion for rehearing is a ―Motion to Contest
Hearing,‖ in which appellant claimed she was married to Abedinzadeh pursuant to section
2.401(2) of the Texas Family Code, that all necessary documentation was filed with the
court to establish the marriage, and that she and Abedinzadeh lived together as husband
and wife and represented to others that they were married. She also stated that her
marriage to Ramirez was not legal because at the time she married Ramirez she was still
married to Abedinzadeh. In the clerk‘s record filed on appeal there is a copy of a United
States income tax return filed jointly by appellant and Abedinzadeh for the 2002 tax year.


The preparation date listed on the tax return is September 25, 2009.3
This tax return does not appear to have been part of appellant‘s summary-judgment
response. Also in the clerk‘s record is a letter from the Harris County Toll Road Authority
addressed to appellant and Abedinzadeh, dated June 15, 2000, giving notice that they have
outstanding tolls and charges.


Standard of Review


We review de novo a trial court‘s grant of summary judgment. Ferguson v. Bldg.
Materials Corp. of Am., 295 S.W.3d. 642, 644 (Tex. 2009). In a no-evidence motion for
summary judgment, the movant must specifically state the elements as to which there is no
evidence. Walker v. Thomasson Lumber Co., 203 S.W.3d 470, 473–74 (Tex.
App.—Houston [14th Dist.] 2006, no pet.). The trial court must grant the motion unless
the respondent produces summary-judgment evidence raising a genuine issue of material
fact. Tex. R. Civ. P. 166a(i). However, the respondent is ―‗not required to marshal its
proof; its response need only point out evidence that raises a fact issue on the challenged
elements.‘‖ Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (quoting Tex. R. Civ.
P. 166a cmt).


Under the traditional summary-judgment standard of review, a movant has the
burden to show there are no genuine issues of material fact, and she is entitled to judgment
as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988
S.W.2d 746, 748 (Tex. 1999). A movant is entitled to summary judgment only if she
conclusively proves all essential elements of her claim. Johnston v. Crook, 93 S.W.3d
263, 273 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).


If the proponent of the marriage does not commence a proceeding to prove the marriage within two years of the date on which the parties to the alleged marriage separated and ceased living together, there is a rebuttable presumption the parties did not enter into an agreement to be married. Tex. Fam. Code Ann. § 2.401(b); Amaye v. Oravetz, 57 S.W.3d 581, 584 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). The effect of a presumption is to force the party against whom it operates to produce evidence to negate the presumption. General Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex. 1993). At summary judgment, that means the resisting party must come forward with evidence
sufficient to neutralize the effect of the presumption in order to properly allow the case to proceed to trial. See, e.g., In re J.A.M., 945 S.W.2d 320, 323 (Tex. App.—San Antonio 1997, no writ) (affirming summary judgment where paternity test militated in mother‘s favor and father presented no evidence to rebut presumption of paternity).


Common-Law Marriage


In a single issue, appellant contends the trial court erred in granting summary judgment by failing to find that she rebutted the presumption in section 2.401 of the Texas Family Code.  

Section 2.401 of the Texas Family Code provides in pertinent part:
(a) In a judicial, administrative, or other proceeding, the marriage of a man
and woman may be proved by evidence that:
(1) a declaration of their marriage has been signed as provided by this
subchapter; or
(2) the man and woman agreed to be married and after the agreement
they lived together in this state as husband and wife and there
represented to others that they were married.
(b) If a proceeding in which a marriage is to be proved as provided by
Subsection (a)(2) is not commenced before the second anniversary of the
date on which the parties separated and ceased living together, it is rebuttably
presumed that the parties did not enter into an agreement to be married.
Tex. Fam. Code Ann. § 2.401(a)(2) & (b).

Appellant, as the proponent of the marriage, had the burden of proof on all elements. Lewis v. Anderson, 173 S.W.3d 556, 559 (Tex. App.—Dallas 2005, pet. denied). An agreement to be married may be established by circumstantial evidence. Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993). In Russell, the supreme court considered the legislature‘s repeal in 1989 of a provision permitting agreement to be inferred from cohabitation and representations.


The court held that the repeal did not bar use of circumstantial evidence, bu
did require such evidence to be ―more convincing‖ than before:
If evidence of an express agreement to marry is not offered, the fact finder
will have to treat the facts of cohabitation and holding-out as circumstantial
evidence of the agreement in order to find a tacit agreement to be married.
This process is, however, virtually identical to the prior process of inference.
But by repealing the provision authorizing the fact-finder to infer an
agreement from proof of two elements of an informal marriage, the
legislature has not excluded a finding of a tacit agreement to be married. In
making such a finding, however, it seems that the evidence of holding-out
must be more convincing than before the 1989 [amendment].
Id. at 932.


Evidence of cohabitation and representations that the couple is married may
constitute circumstantial evidence of an agreement to be married, but ―the circumstances of
each case must be determined based upon its own facts.‖ Id. To establish the element of
an agreement to be married, the evidence must show the parties intended to have a present,
immediate, and permanent marital relationship and that they did in fact agree to be husband
and wife. Winfield v. Renfro, 821 S.W.2d 640, 645 (Tex. App.—Houston [1st Dist.] 1991,
writ denied).


The only arguable evidence in the record of an agreement to be married was
contained in appellant‘s deposition testimony attached to appellee‘s motion for summary
judgment. In that testimony, appellant stated:
Q. Have you ever taken a position that you were married to Habib prior to
your birthday in 1993?


Prior to the 1989 amendment, section 1.91 of the Texas Family Code provided that ―(b) ... [T]he
agreement of the parties to marry may be inferred if it is proved that they lived together as husband and wife and represented to others that they were married.‖ Act of May 31, 1969, 61st Leg., R.S., ch. 888, § 1, 1969 Tex. Gen. Laws 2707, 2717, amended by Act of May 29, 1989, 71st Leg., R.S., ch. 369, § 9, 1989 Tex. Gen. Laws 1458, 1461. Following the 1989 amendment, section 1.91 provided that ―(a) the marriage ... may be proved by evidence that: ... (2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.‖ Id.6


A. I don‘t remember.
Q. Do you recall signing an affidavit wherein you said you were the wife of
Habib and you were married to him since 1992?
A. Yes, because it was ‘92, ‘93, you know.
* * * * *
Q. Okay. When did you specifically begin this marriage, the date? I want
to know when the marriage began.
A. It was ‘92, we were dating ‘92.
Q. Okay. Well, I can date a lot of girls.
A. Uh-huh. ‘92.
Q. It doesn‘t mean I‘m married. I want to know —
A. And for my birthday we were already together because I have the picture
and we were living together. So, it must have been December of ‘92.
Q. Okay. What day in December, ‘92, did y‘all formally get married?
A. At the end of December.
Q. When did y‘all — you understand, common-law marriage —
A. I don‘t remember.


Appellant also testified that she had a marriage license dated March 8, 2011, stating
that she was married to Fausto Rodriguez. In filling out the application for the marriage
license, appellant stated that she was not married at that time. When questioned about this
statement in her deposition, appellant testified that she lied on the application because at
the time she did not know she needed a legal divorce from a common-law marriage. She
testified that she was informally married to Abedinzadeh, but thought she was divorced
from him because they no longer lived together.


Appellant has not come forward with evidence sufficient to neutralize the effect of
the presumption in order to properly allow the case to proceed to trial. Appellant‘s 7
testimony is not evidence of an agreement to marry. Further, any evidence that appellant
presented showing a representation of marriage, or ―holding out‖ is just as consistent with
other relationships as with marriage. Representations may be shown by conduct rather
than spoken words, but inherent in the concept is behavior intended as a communication to
third parties. Lee v. Lee, 981 S.W.2d 903, 907 (Tex. App.—Houston [1st Dist.] 1998, no
pet.) (requiring representations to public by both parties to establish common-law
marriage).


Moreover, a person may not be a party to an informal marriage or execute a
declaration of an informal marriage if the person is presently married to a person who is not
the other party to the informal marriage. Tex. Fam. Code Ann. § 2.401(d). The
documents appellant alleged prove her common-law marriage were filed after her
ceremonial marriage to Ramirez. ―The act of one of the parties to an alleged common-law
marriage in celebrating a ceremonial marriage with another person, without having first
obtained a divorce, tends to discredit the first relationship and to show that it was not
valid.‖ Small v. McMaster, No. 14-09-01080-CV___ S.W.3d ___, ___ 2011 WL
5008412, *6 n.4 (Tex. App.―Houston [14th Dist.] Oct. 20, 2011, no pet. h.) (citing Estate
of Claveria v. Claveria, 615 S.W.2d 164, 166 (Tex. 1981); Flores v. Flores, 847 S.W.2d
648, 652 (Tex. App.—Waco 1993, no writ)).


Appellant waited almost five years after Abedinzadeh‘s death to claim she was
married to him. Appellant presented no evidence of an agreement to marry, that she and
Abedinzadeh lived together as husband and wife, or that they held themselves out to others
as husband and wife. Appellant did not come forward with sufficient evidence to
neutralize the presumption that she was not married to Abedinzadeh. Appellant‘s sole
issue is overruled.


The judgment of the trial court is affirmed.


PER CURIAM


Panel consists of Justices Brown, Boyce, and McCally.

No mandamus jurisdiction over district clerk, appellate panel rules (but district court may issue mandmus against clerk)

In re Lonnie Mack Brook,
No.  01-11-00658-CV (Tex.App.- Houston [1st Dist.] Nov. 3, 2011)  
Appeal from 306th District Court of Galveston County

MEMORANDUM OPINION
  
Relator, Lonnie Mack Brooks, has filed a pro se petition for writ of mandamus, complaining that the respondent, the Galveston County District Clerk, has refused to file Brooks’s application for a writ of habeas corpus. [Fn 1]
  
This Court’s mandamus jurisdiction is governed by the Texas Government Code.  Section 22.221 expressly limits the mandamus jurisdiction of the courts of appeals to: (1) writs necessary to enforce the jurisdiction of the court of appeals and (2) writs against specified district or county court judges in the court of appeals district.  TEX. GOV’T CODE ANN. § 22.221(a), (b) (West 2004).  We, therefore, lack jurisdiction to issue a writ of mandamus against a district clerk or a court coordinator unless necessary to enforce our jurisdiction.  See id. § 22.221(a), (b); see alsoIn re Smith, 263 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). Brooks has not shown that issuance of a writ of mandamus is necessary for this court to enforce its jurisdiction.  See TEX. GOV’T CODE ANN. § 22.221(a), (b); In re P.L.M., No. 01-11-00086-CV, 2011 WL 1234692, at *1 (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, orig. proceeding) (holding this court lacked jurisdiction to issue mandamus against district clerk for refusing to file application for writ of habeas corpus because relator made no showing that issuance of a writ of mandamus was necessary for this court to enforce its jurisdiction); cf. In re Smith, 263 S.W.3d 93, 95 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding) (holding this court could issue mandamus against clerk who refused to file notice of appeal because filing of notice of appeal vests jurisdiction this court). 
  
Nevertheless, a clerk has a “mandatory, ministerial duty” to file documents submitted for filing.  See In re Smith, 263 S.W.3d at 95.  It is then up to the court—not the clerk—to determine whether the court has jurisdiction or otherwise determine the propriety of the filing.  See id. Additionally, the Texas Court of Criminal Appeals has noted that, while it lacks jurisdiction of a habeas proceeding from an adjudication against a juvenile, district courts have jurisdiction under the Texas Constitution.  See Ex parte Valle, 104 S.W.3d 888, 890 (Tex. Crim. App. 2003). 
  
We conclude that we do not have jurisdiction to issue a writ of mandamus against respondent.  Accordingly, we dismiss Brooks’s petition for lack of jurisdiction, and we dismiss all outstanding motions as moot.  [Fn 2]  

PER CURIAM

Panel consists of Chief Justice Radack and Justices Bland and Huddle.



  
[Fn 1] Relator has identified the underlying case as the adjudication proceeding from which he seeks habeas relief, No. 88jv310, in the 306th District Court of Galveston County, Texas.
  
[Fn 2] Although this court lacks jurisdiction, the district court has jurisdiction to issue a writ of mandamus against a clerk in appropriate cases.  See In re P.L.M, 2011 WL 1234692 at *1 (noting that Texas  Government Code section 24.011 grants district court judge mandamus jurisdiction for the enforcement of the court’s jurisdiction). 


Battle over O'Quinn's Fortune: Was he informally married? - 1st Court of Appeals weighs in on dispute between John M. O'Quinn Foundation and O'Quinn Girlfriend-Companion-Partner Darla Lexington


POST-MORTEM CLAIM OF INFORMAL MARRIAGE ALIVE AND WELL. LITIGATION OVER O'QUINN ESTATE TO CONTINUE AFTER APPELLATE COURT DECLINES TO STEP IN AND STOP IT. 


IN RE DARLA LEXINGTON O'QUINN,
No 01-11-00641-CV (Tex.App. -- Houston [1st Dist.] Nov. 3, 2011)(mandamus denied)
Original Proceeding on Petition for Writ of Mandamus
 O P I N I O N
          Relator, Darla Lexington O’Quinn (“Darla”), complains of the trial court’s order denying her motion in limine, plea to the jurisdiction, and motion to strike the petition in intervention of real party in interest, The John M. O’Quinn Foundation (“the Foundation”).[1]  She contends that the trial court erred in denying her motions because the Foundation, as the sole beneficiary under the decedent’s will in an independent administration, does not have a justiciable interest in the underlying proceeding and thus lacks standing to assert its declaratory judgment claims.
          We deny the petition for writ of mandamus.
Background
          On July 17, 2008, decedent John M. O’Quinn (“O’Quinn”) executed a self-proving will. In this will, O’Quinn devised all of his personal effects to the Foundation, a charitable organization dedicated to providing funding to educational institutes, hospitals, and other charities.  O’Quinn also devised the residue of his estate to the Foundation and provided that the Foundation would receive any assets remaining in the O’Quinn Law Firm Testamentary Trust after the trustees dissolved the law firm and sold or transferred the firm’s assets.  The will specifically recited that at the time of execution O’Quinn was unmarried, and the will did not include any devises or bequests in favor of Darla.
          O’Quinn died in a car accident on October 29, 2009.  The Probate Court Number 2 of Harris County admitted the will to probate on November 17, 2009, appointed T. Gerald Treece as independent executor (“the Executor”), and issued letters testamentary.
          On April 16, 2010, the Foundation intervened in the ongoing probate proceeding.  The Foundation’s petition in intervention listed only the Foundation and the Executor as parties; it did not name Darla as a party.  The Foundation alleged that at the time of his death, O’Quinn was neither formally nor informally married.  The Foundation sought declarations that:  (1) O’Quinn was not married, either formally or informally, at the time of his death; (2) no children were born to or adopted by O’Quinn after he executed his will; (3) O’Quinn devised all personal effects under the will to the Foundation; (4) O’Quinn devised all remaining property under the will to the Foundation; and (5) the Foundation is the sole residual beneficiary of the O’Quinn Law Firm Testamentary Trust.
          On July 7, 2010, the Executor filed a petition for declaratory judgment and named Darla, the Foundation, and Hartford Financial Services Group, Inc., the holder of the proceeds of O’Quinn’s 401(k) plan, as defendants.  In his petition, the Executor stated that, “It is anticipated that the Foundation will intervene in this matter.”  The Executor alleged that, although O’Quinn and Darla had dated for several years, O’Quinn never married her and, thus, was single when he died.  The Executor sought, among other things, declarations from the trial court that: (1) O’Quinn never married Darla and (2) O’Quinn did not gift any art or cars to Darla except for the items for which the Executor had already paid the required gift taxes.
          On July 8, 2010, Darla sued the Executor in the 125th District Court of Harris County “for the return and delivery of property that belongs to Darla Lexington as a result of her community property interests acquired by marriage, and received by gifts” and asserted causes of action for breach of fiduciary duty, negligence, tortious interference, and conversion.  Darla also sought the imposition of a constructive trust against the Estate and applied for a temporary restraining order to prevent the Executor from “proceeding with the auction of any property belonging to Darla Lexington.”  Darla contended that she and O’Quinn had informally married in 2003, that O’Quinn had made several inter vivos gifts to her of personal property and classic cars, and that O’Quinn had promised her that “he would provide for her welfare in the event something was to happen to him” and that she “did not need to worry about living expenses.”  Darla sought, among other things, preliminary and permanent injunctive relief to prevent the sale of her property, a declaration that she and O’Quinn had informally married, and receipt of one-half of the community estate.[2]
          Four days later, the Foundation filed an amended petition in intervention in the Executor’s suit for declaratory relief, this time naming Darla as a defendant.  The Foundation again sought declarations that:  (1) O’Quinn was not married at the time of his death; (2) no children were born to or adopted by O’Quinn after he executed his will; (3) all of O’Quinn’s personal effects were devised under the will to the Foundation; (4) those personal effects included all right, title, and interest in O’Quinn Land & Cattle Co., the O’Quinn River Ranch, and Classy Classic Cars, Ltd., and all cars purchased through or titled in the name of Classy Classic Cars, Ltd.; (5) O’Quinn devised all remaining property to the Foundation; and (6) the Foundation is the sole residual beneficiary of the O’Quinn Law Firm Testamentary Trust.
          The probate court subsequently issued an order pursuant to Probate Code section 5B transferring Darla’s lawsuit to it from the 125th District Court and consolidating her suit with the Executor’s and the Foundation’s petitions for declaratory relief.
          In her answer to the Foundation’s amended petition in intervention, Darla asserted, by verified denial, that the Foundation lacks the capacity to intervene because only the Executor has the right to seek declaratory relief regarding the alleged marriage and alleged gifts made to Darla by O’Quinn.  Darla also asserted that the Foundation lacks standing to pursue its claims because it does not have a justiciable interest “in the outcome of this litigation.”
          On May 10, 2011, Darla filed a motion in limine, plea to the jurisdiction, and motion to strike the Foundation’s petition in intervention.  Darla again asserted that the trial court lacks subject-matter jurisdiction over the Foundation’s petition in intervention because the Foundation “lacks the requisite interest, standing, and capacity to participate in this matter.”  Darla argued that the Executor, who virtually represents all beneficiaries under the will, is the sole party who has the right to prosecute and defend lawsuits on behalf of the Estate.  Darla also contended that the Executor, as the representative of the Estate, is the only party who has a justiciable interest in the claims being litigated.  Darla further contended that the Executor could adequately protect the Foundation’s interests, and thus its intervention was not necessary.
          At a hearing, the trial court denied Darla’s motions.  The court reasoned that “[i]f [the Foundation] was not a party to the decision as to whether or not Ms. Lexington was common-law spouse, I think they would have a sufficient interest to come back in and try it again.”  This mandamus proceeding followed.
Standard of Review
          Mandamus relief is available only to correct a clear abuse of discretion when there is no adequate remedy by appeal.  See In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010) (per curiam).  A trial court commits a clear abuse of discretion when its action is “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.”  In re CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (per curiam).  A trial court has no discretion in determining what the law is or in applying the law to the particular facts.  In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004).  Mandamus relief is permissible when a trial court abuses its discretion by erroneously denying a motion to strike a petition in intervention. See In re Union Carbide Corp., 273 S.W.3d 152, 156–57 (Tex. 2008) (per curiam).
          We must uphold a trial court’s decision on any grounds that are before the court and supported by the record.  See Guar. Cnty. Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986) (per curiam) (“We must uphold a correct lower court judgment on any legal theory before it, even if the court gives an incorrect reason for its judgment.”).  “This approach is even more compelling in a mandamus proceeding where the issue is abuse of discretion.  A trial court cannot abuse its discretion if it reaches the right result . . . .”  Luxenberg v. Marshall, 835 S.W.2d 136, 142 (Tex. App.—Dallas 1992, no writ).
Foundation’s Standing to Assert Claims
          Darla contends that the Foundation lacks a justiciable interest in the underlying proceedings and, thus, lacks standing to assert its claims for declaratory relief.  The Foundation contends that it has a justiciable interest because if Darla succeeds on her claims and the fact-finder determines that she was informally married to O’Quinn and that he made several gifts to her, this result diminishes the size of the estate passing to the Foundation under the will.  The Foundation also contends that, as a devisee, it may permissibly seek declaratory relief to “determine any question arising in the administration of the . . . estate” under Civil Practice and Remedies Code section 37.005(3).  We agree with the Foundation.
A.   Justiciable Interest
Texas Rule of Civil Procedure 60 authorizes a party with a justiciable interest in a pending suit to intervene as a matter of right.  TEX. R. CIV. P. 60 (“Any party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party.”); In re Union Carbide, 273 S.W.3d at 154.  To constitute a justiciable interest, “‘[t]he intervenor’s interest must be such that if the original action had never been commenced, and he had first brought it as the sole plaintiff, he would have been entitled to recover in his own name to the extent at least of a part of the relief sought’ in the original suit.”  In re Union Carbide, 273 S.W.3d at 155 (quoting King v. Olds, 12 S.W. 65, 65 (Tex. 1888)).  “[A] party may intervene if the intervenor could have ‘brought the [pending] action, or any part thereof, in his own name.’” Id. (quoting Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990)); Harris Cnty. v. Luna-Prudencio, 294 S.W.3d 690, 699 (Tex. App.—Houston [1st Dist.] 2009, no pet.).
The Uniform Declaratory Judgments Act (“UDJA”) is “merely a procedural device for deciding cases already within a court’s jurisdiction rather than a legislative enlargement of a court’s power, permitting the rendition of advisory opinions.”  Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).  A declaratory judgment is appropriate only if (1) a justiciable controversy exists regarding the rights and status of the parties and (2) the declaration sought will resolve the controversy.  Di Portanova v. Monroe, 229 S.W.3d 324, 329 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).  “To constitute a justiciable controversy, there must exist a real and substantial controversy involving a genuine conflict of tangible interests and not merely a theoretical dispute.”  Id.see also In re Estate of Webb, 266 S.W.3d 544, 548 (Tex. App.—Fort Worth 2008, pet. denied) (“This interest must be more than ‘a mere contingent or remote interest.’  The intervenor has a justiciable interest in a lawsuit ‘when his interests will be affected by the litigation.’”) (quoting Law Offices of Windle Turley, P.C. v. Ghiasinejad, 109 S.W.3d 68, 70 (Tex. App.—Fort Worth 2003, no pet.)).  A court does not have the power to “pass upon hypothetical or contingent situations, or to determine questions not then essential to the decision of an actual controversy.”  Di Portanova, 229 S.W.3d at 330.  If a justiciable controversy does not exist, the court must dismiss the case for lack of subject-matter jurisdiction.  Id.
Under Probate Code section 37, “[w]hen a person dies, leaving a lawful will, all of his estate devised or bequeathed by such will . . . shall vest immediately in the devisees or legatees of such estate . . . .”  TEX. PROB. CODE ANN. § 37 (Vernon 2003); see also Nowlin v. Frost Nat’l Bank, 908 S.W.2d 283, 288 (Tex. App.—Houston [1st Dist.] 1995, no writ) (“[U]nder the Probate Code, title to property vests in the beneficiary immediately upon a testator’s death.”). During the administration of the estate, the testator’s executor holds legal title to estate assets and retains the right of possession, but the devisees hold the equitable title to the assets.  SeeTEX. PROB. CODE ANN. § 37; see also Bailey v. Cherokee Cnty. Appraisal Dist., 862 S.W.2d 581, 584 (Tex. 1993) (“[I]t is true that the heirs hold equitable title to estate property . . . .”); Nowlin, 908 S.W.2d at 288 (“A ‘vested interest’ is a present right or title to a thing, which carries with it an existing right of alienation, even though the right to possession or enjoyment may be postponed to some uncertain time in the future.”).
In In re Estate of York, the Corpus Christi Court of Appeals addressed the factually analogous situation of whether a beneficiary’s executor had standing to intervene in an heirship proceeding.  934 S.W.2d 848 (Tex. App.—Corpus Christi 1996, writ denied).  Charles York’s will provided that all of his assets were to be placed in a testamentary trust for the benefit of his mother, Myrtle, for her life, and were then to pass to the Mallettes, who ultimately disclaimed their interest in the assets.  Id. at 849.  Several years after York died and the Mallettes disclaimed their interest, Kristopher Gostecnik brought an heirship proceeding, alleging that he was York’s illegitimate son and only heir, and thus was entitled to the remainder of the trust assets.  Id.  Myrtle intervened to assert her own claims as York’s sole heir, but she died before the conclusion of the heirship proceeding.  Id.  As a result, her executor, the Victoria Bank, sought to pursue her claim in intervention on behalf of her estate.  Id.  The trial court ruled that the bank was not an interested party in Charles York’s estate, concluded that the bank lacked standing to intervene in the heirship proceeding, and struck Myrtle’s petition in intervention.  Id.
In reversing the trial court’s ruling, the Corpus Christi Court of Appeals concluded that Myrtle, as a potential heir, was a person interested in Charles York’s estate and thus had standing to contest the heirship claims.  See id. at 850.  The court then noted that Myrtle’s estate “may be augmented or diminished by the outcome of Gostecnik’s heirship proceeding.”  Id.  Thus, “[b]ecause Myrtle York’s estate could benefit from such a contest, we hold that Victoria Bank as executor of Myrtle York’s estate has standing to contest Gostecnik’s claims in the proceeding to declare heirship.”  Id.  The court further distinguished between the bank’s capacity as executor of Charles York’s estate and its capacity as executor of Myrtle York’s estate:
Charles York’s estate does not stand to gain or lose anything by Gostecnik’s heirship proceeding; the disposition of the estate’s assets may be affected, but the gross assets will be unaffected.  In contrast, Myrtle York’s estate will be affected by the outcome of Gostecnik’s heirship proceeding.
Id. at 851.
          Darla cites our previous opinion in Wilder v. Mossler, 583 S.W.2d 664 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ), for the proposition that lawsuits seeking to establish the decedent’s liability on a claim are properly brought against the personal representative of the estate and that heirs and devisees are not necessary and proper parties to such claims.  We first note that, unlike in this case, the heir in Wilder sought a jury trial to oppose the settlement of a claim against the estate but asserted no claims for affirmative relief in her own right.  Id. at 668. Second, we agree with the Foundation that, as in Lieber v. Mercantile National Bank at Dallas, Darla’s claims are not a “routine suit to establish a claim against the estate,” but are instead more like “a suit attacking and seeking to reform a will.”  331 S.W.2d 463, 472 (Tex. Civ. App.—Dallas 1960, writ ref’d n.r.e.).
In Lieber, the widow, who was a beneficiary under the decedent’s will, sought a declaratory judgment to establish an antenuptial agreement that the decedent had allegedly made to provide financially for the widow for the rest of her life.  Id. at 466–67.  The executor sought a declaration that no such agreement existed, and he named the decedent’s four sisters, who were the beneficiaries of the bulk of the decedent’s estate under the will, as necessary parties.  Id. at 466.  The Dallas Court of Civil Appeals, in affirming the trial court’s denial of the widow’s motion to dismiss the sisters as parties, held that Lieber’s suit “was really an attack on the will of [the decedent]” because “the effect of sustaining her claim would be to defeat and prevent the full effect and operation of other parts of the will.”  Id. at 472, 471.  The court also held that, because resolution of the widow’s claims would affect their interests as legatees, the sister-beneficiaries were proper parties to the suit.  Id. at 473.  Similarly, by contending that she was informally married to O’Quinn and that he had made numerous gifts to her and had promised to take care of her financially after his death, Darla essentially attacks the provisions of O’Quinn’s will that (1) state that he was unmarried, and (2) leave all of his personal effects and remaining property to the Foundation as the sole beneficiary.
As the sole beneficiary under O’Quinn’s will, the Foundation has a vested interest in property owned by O’Quinn, subject to possession and administration by the Executor, as of the moment of death.  By contending that she was O’Quinn’s common-law spouse, and thus entitled to a community property interest, and that O’Quinn had made several inter vivos gifts and promises to her, Darla seeks to significantly reduce the total amount of assets that are part of O’Quinn’s probate estate.  The Foundation opposes Darla’s claims and argues that she has no community property interest in estate assets because she was not married to O’Quinn and that O’Quinn never made any gifts or financial promises to Darla.  If she is successful, the determination that Darla has a one-half community interest and that particular assets belong to her reduces the gross assets available for the Estate, which affects the total amount of assets to be distributed to the Foundation as the sole beneficiary under O’Quinn’s will.  See Lieber, 331 S.W.2d at 473 (“This suit also involves that executor’s cross-action for declaratory judgment which we have held the executor was entitled to remain.  Since their interest would be affected as legatees the Four Sisters are proper parties.”).
We therefore conclude that a “real and substantial controversy involving a genuine conflict of tangible interests” exists between the Foundation and Darla and that this dispute is not merely theoretical, hypothetical or contingent.  See Di Portanova, 229 S.W.3d at 329.  We hold that the Foundation has a justiciable interest in the underlying proceeding.
B.   Applicability of Civil Practice and Remedies Code Section 37.005(3)
Civil Practice and Remedies Code section 37.005(3) provides:
A person interested as or through an executor or administrator, including an independent executor or administrator, a trustee, guardian, other fiduciary, creditor,devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust or of the estate of a decedent, an infant, mentally incapacitated person, or insolventmay have a declaration of rights or legal relations in respect to the trust or estate:

. . . .

(3) to determine any question arising in the administration of the trust or estate, including questions of construction of wills and other writings . . . .

TEX. CIV. PRAC. & REM. CODE ANN. § 37.005(3) (Vernon 2008) (emphasis added).  Under this section, devisees “are among the classes of persons who are given the power to seek a declaration of rights with respect to the estate to, among other things, determine any question arising in the administration of the estate . . . .”  In re Estate of Bean, 120 S.W.3d 914, 918 (Tex. App.—Texarkana 2003, pet. denied) (holding that devisees in independent administration have power to seek declaration concerning construction of decedent’s will).
          The plain language of section 37.005(3) allows a devisee to seek a declaration of rights or legal relations to determine “any question arising in the administration” of an estate.  TEX. CIV. PRAC. & REM. CODE ANN. § 37.005(3) (emphasis added).  The statutory language of this section does not include any limitations on the types of questions on which an interested party may seek a declaration by the trial court.  See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999) (noting that, when interpreting statute, we start with plain language because “it is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent”).  Darla cites no authority holding that a devisee may not seek declarations under this section that a purported widow was not married, either formally or informally, to the decedent and that the decedent did not make certain inter vivos gifts and financial promises to the purported widow.
          Darla cites numerous cases for the proposition that, except in certain limited situations, the personal representative has the exclusive right to sue and defend on behalf of the estate.  SeeChandler v. Welborn, 294 S.W.2d 801, 806 (Tex. 1956); Burns v. Burns, 2 S.W.3d 339, 342 (Tex. App.—San Antonio 1999, no pet.); Glover v. Landes, 530 S.W.2d 910, 911 (Tex. Civ. App.—Houston [1st Dist.] 1975, writ ref’d n.r.e.).  As the Foundation notes, this line of cases is limited to situations in which the heirs or devisees are suing to recover or collect property belonging to the estate.  See, e.g., Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 850–51 (Tex. 2005) (survival action for personal injury); Chandler, 294 S.W.2d at 804 (suit for trespass to try title to recover property conveyed to third party); see also Roach v. Rowley, 135 S.W.3d 845, 847 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (holding that general rule did not apply in suit in which devisee objected to final accounting because “[devisee] was not filing a lawsuit to recover property belonging to the estate”).  Here, the Foundation is not asserting a claim against Darla alleging, for example, that she owes money to O’Quinn’s Estate or that Darla is wrongfully possessing property that belongs to the Estate; instead, it is seeking, among other things, a declaration to resolve the question of whether property properly belongs to the Estate, and thus passes to the Foundation under O’Quinn’s will, or to Darla.  Civil Practice and Remedies Code section 37.005(3) specifically authorizes a devisee, such as the Foundation, to bring a declaratory relief action such as this one.  See TEX. CIV. PRAC. & REM. CODE ANN.§ 37.005(3) (allowing devisee to seek declaration of rights or legal relations to “determine any question arising in the administration of the . . . estate”).  Darla cites no authority supporting a contention that the general rule that only the personal representative may maintain a suit to recover estate assets trumps the Foundation’s statutory right as a beneficiary to seek a declaration resolving a question arising during the administration of the estate that involves the proper ownership of purported estate assets.
          We conclude that the Foundation, as the devisee under O’Quinn’s will, may permissibly seek declaratory relief pursuant to Civil Practice and Remedies Code section 37.005(3) to determine “any question arising in the administration” of O’Quinn’s estate, including questions of whether O’Quinn and Darla were married and whether O’Quinn made gifts and financial promises to Darla.  We therefore hold that because the Foundation may seek declaratory relief under this section, the trial court did not abuse its discretion in denying Darla’s motion in limine, plea to the jurisdiction, and motion to strike the Foundation’s petition in intervention.[3]
Conclusion
          We deny the petition for writ of mandamus.
                                                                   Evelyn V. Keyes
                                                                   Justice
Panel consists of Justices Keyes, Higley, and Massengale.





[1]           The Honorable Mike Wood, Judge of the Probate Court No. 2 of Harris County, Texas, Respondent.  The underlying lawsuit is T. Gerald Treece, Independent Executor of the Estate of John M. O’Quinn, Deceased v. Darla Lexington, The John M. O’Quinn Foundation, and Hartford Financial Services Group, Inc., 392,247-402 (Prob. Ct. No. 2, Harris Cnty., Tex.).
[2]           In her ninth amended original petition, which is her live pleading, Darla specified that she was seeking, among other things:  (1) title and possession of all cars promised to her by O’Quinn; (2) $20 million in cash that O’Quinn had promised her upon his death; (3) the fair market value of 750 acres of O’Quinn’s Hays County ranch; (4) the value of all gifts from O’Quinn that became her separate property and were wrongfully converted by the Executor; (5) one-half of the community estate; and (6) the value of a life estate in O’Quinn’s River Oaks residence, which she contends was their homestead.
[3]           Because we hold that the Foundation has standing to pursue its own declaratory relief claims under Civil Practice and Remedies Code section 37.005(3), we do not address the Foundation’s additional grounds for standing.  We also note that although Darla argues that, under Civil Practice and Remedies Code section 37.006, the Foundation is not a necessary party to the Executor’s declaratory relief claims, in which the Executor named the Foundation as a defendant, she seeks only to dismiss the Foundation’s own declaratory relief claims in its petition in intervention.  She does not challenge, either in the trial court or in this mandamus proceeding, the Executor’s declaratory relief claims.