On April 08, 2019 a
DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S PLEA TO THE JURISDICTION:
was filed
involving a dispute between
Kizzie, Margaret,
and
Taylor, Bernadette,
for OTHER CIVIL
in the District Court of Harris County.
Preview
10/10/2019 9:15 AM
Marilyn Burgess - District Clerk Harris County
Envelope No. 37537718
By: DANIELLE JIMENEZ
Filed: 10/10/2019 9:15 AM
Cause No. 2019-24882
MARGARET KIZZIE, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. § HARRIS COUNTY, TEXAS
§
k
BERNADETTE TAYLOR §
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Defendant. § 334TH JUDICIAL DISTRICT
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DEFENDANT’S REPLY TO PLAINTIFF’S
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RESPONSE TO DEFENDANT’S PLEA TO THE JURISDICTION
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COMES NOW Movant BERNADETTE TAYLOR (hereinafter referred to as “Taylor”),
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and files this Reply to Plaintiff’s Response to Defendant’s Plea to the Jurisdiction, and in support
es
thereof, would respectfully show the Court the following:
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1. Bu
Section 31.002 of Texas Estates Code provides an inclusive, not exhaustive, list of
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issues that constitute a matter related to a probate proceeding. In addition, Section 31.002 provides
ily
ar
example scenarios, not causes of action, that constitute proceedings related to a probate
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proceeding. As such, it is not true that a cause of action for fraud or declaratory judgment can
of
e
never be related to a probate proceeding.
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2. The previous litigation between the parties, the contest of a will, was a probate
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proceeding under Texas Estates Code because it was an action regarding the probate of a will. See
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TEX. ESTATES CODE 31.001(4).
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3. Plaintiff’s causes of action in this case relate to the probate proceeding. Plaintiff’s
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fraud claim arises from alleged conduct that took place within the walls of Probate Court No. 3, as
of
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she alleges that the ultimate ruling in the probate proceeding was a direct result of Defendant’s
false representations made throughout the proceeding. Similarly, Plaintiff’s declaratory judgment
action is merely a will validity claim repackaged as a declaratory judgment. Plaintiff’s claims
007020\00002\2456880.1
relate to a probate proceeding and therefore, pursuant to Section 32.005 of the Texas Estates Code,
Defendant respectfully requests the Court to grant its plea to the jurisdiction.
4. Even if the court decides the causes of action are not related to a probate proceeding
for purposes of Section 32.005, the statutory probate courts nonetheless have exclusive jurisdiction
k
ler
over this lawsuit because Plaintiff’s claims, in and of themselves, are probate proceedings. See
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TEX. ESTATES CODE 31.001(4). In a county in which there is a statutory probate court, the statutory
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probate court has exclusive jurisdiction of all probate proceedings. TEX. ESTATES CODE 32.005.
ist
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An action regarding the probate of a will is a probate proceeding. TEX. ESTATES CODE 31.001(4).
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This is an action regarding the probate of the will because Plaintiff is seeking (1) a declaration
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regarding the validity of a will and (2) damages for representations made during a will contest.
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VII. Prayer
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WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this Court
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grant the Defendant’s Plea to the Jurisdiction and dismiss Plaintiff’s claims for lack of subject
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of
matter jurisdiction.
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Respectfully submitted,
O
BOYARMILLER
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By: ________________________________
JILL W. YOUNG
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jyoung@boyarmiller.com
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State Bar No. 00797670
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CHRISTOPHER C. BURT
cburt@boyarmiller.com
of
State Bar No. 24068339
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ZACH KLEIMAN
zkleiman@boyarmiller.com
State Bar No. 24106157
2925 Richmond Avenue, 14th Floor
Houston, Texas 77098
(713) 850-7766
(713) 552-1758 (Fax)
ATTORNEYS FOR DEFENDANT
007020\00002\2456880.1
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been served on
each party of record in accordance with the Texas Rules of Civil Procedure on this the 10th day of
October, 2019.
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__________________________________
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JILL W. YOUNG
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CHRISTOPHER BURT
ZACH KLEIMAN
ist
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es
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Bu
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ar
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of
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ial
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of
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007020\00002\2456880.1
Document Filed Date
October 10, 2019
Case Filing Date
April 08, 2019
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10/10/2019 9:15 AM Marilyn Burgess - District Clerk Harris County Envelope No. 37537718 By: DANIELLE JIMENEZ Filed: 10/10/2019 9:15 AM Cause No. 2019-24882 MARGARET KIZZIE, § IN THE DISTRICT COURT OF Plaintiff, § § v. § HARRIS COUNTY, TEXAS § k BERNADETTE TAYLOR § ler Defendant. § 334TH JUDICIAL DISTRICT tC DEFENDANT’S REPLY TO PLAINTIFF’S ric RESPONSE TO DEFENDANT’S PLEA TO THE JURISDICTION ist COMES NOW Movant BERNADETTE TAYLOR (hereinafter referred to as “Taylor”), sD and files this Reply to Plaintiff’s Response to Defendant’s Plea to the Jurisdiction, and in support es thereof, would respectfully show the Court the following: rg 1. Bu Section 31.002 of Texas Estates Code provides an inclusive, not exhaustive, list of n issues that constitute a matter related to a probate proceeding. In addition, Section 31.002 provides ily ar example scenarios, not causes of action, that constitute proceedings related to a probate M proceeding. As such, it is not true that a cause of action for fraud or declaratory judgment can of e never be related to a probate proceeding. ffic 2. The previous litigation between the parties, the contest of a will, was a probate yO proceeding under Texas Estates Code because it was an action regarding the probate of a will. See op C TEX. ESTATES CODE 31.001(4). ial 3. Plaintiff’s causes of action in this case relate to the probate proceeding. Plaintiff’s fic fraud claim arises from alleged conduct that took place within the walls of Probate Court No. 3, as of Un she alleges that the ultimate ruling in the probate proceeding was a direct result of Defendant’s false representations made throughout the proceeding. Similarly, Plaintiff’s declaratory judgment action is merely a will validity claim repackaged as a declaratory judgment. Plaintiff’s claims 007020\00002\2456880.1 relate to a probate proceeding and therefore, pursuant to Section 32.005 of the Texas Estates Code, Defendant respectfully requests the Court to grant its plea to the jurisdiction. 4. Even if the court decides the causes of action are not related to a probate proceeding for purposes of Section 32.005, the statutory probate courts nonetheless have exclusive jurisdiction k ler over this lawsuit because Plaintiff’s claims, in and of themselves, are probate proceedings. See tC TEX. ESTATES CODE 31.001(4). In a county in which there is a statutory probate court, the statutory ric probate court has exclusive jurisdiction of all probate proceedings. TEX. ESTATES CODE 32.005. ist sD An action regarding the probate of a will is a probate proceeding. TEX. ESTATES CODE 31.001(4). es This is an action regarding the probate of the will because Plaintiff is seeking (1) a declaration rg regarding the validity of a will and (2) damages for representations made during a will contest. Bu VII. Prayer n ily WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this Court ar grant the Defendant’s Plea to the Jurisdiction and dismiss Plaintiff’s claims for lack of subject M of matter jurisdiction. e ffic Respectfully submitted, O BOYARMILLER y op By: ________________________________ JILL W. YOUNG C jyoung@boyarmiller.com ial State Bar No. 00797670 fic CHRISTOPHER C. BURT cburt@boyarmiller.com of State Bar No. 24068339 Un ZACH KLEIMAN zkleiman@boyarmiller.com State Bar No. 24106157 2925 Richmond Avenue, 14th Floor Houston, Texas 77098 (713) 850-7766 (713) 552-1758 (Fax) ATTORNEYS FOR DEFENDANT 007020\00002\2456880.1 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been served on each party of record in accordance with the Texas Rules of Civil Procedure on this the 10th day of October, 2019. k ler __________________________________ tC JILL W. YOUNG ric CHRISTOPHER BURT ZACH KLEIMAN ist sD es rg Bu n ily ar M of e ffic yO op C ial fic of Un 007020\00002\2456880.1