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CELEBRATING 90 YEARS (1929 -2019) 

MCJ is pleased to announce that Michael J. Zant has been named a Stakeholder of the Firm.

The Law Firm of McWhorter, Cobb and Johnson, LLP, is please to announce that Michael J. Zant has been named a Stakeholder of the Firm.  Mr. Zant’s practice areas will continue to include Estate Planning, Business Transactions and Commercial Litigation.

Establishing Venue in Civil Trials

Prior to its most recent amendment in 1995, the general venue law allowed venue “in the county in which all or part of the cause of action accrued or in the county of defendant’s residence . . .”  See Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673, 681 (Tex. App.—Austin 2003, no pet.) (citing Act of May 18, 1995, 74^th Leg., R.S., ch. 138, § 1, 1995 Tex. Gen. Laws 978 (amendment 1995) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a)(1) (West 2002)) (formerly Tex. Civ. Prac. & Rem. Code § 15.001)).  The 1995 amendment narrowed the venue requirement to “in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred.”  Quantum Elec. Inc. v. Scott & White Props., 2007 Tex. App. LEXIS 8415, 2007 WL 3105757 (Tex. App.—Eastland 2007, no pet.) (citing Tex. Civ. Prac. & Rem. Code § 15.002(a)(1).

After 1995, isolated facts connected to the lawsuit are not sufficient to establish venue, as they were under the old venue scheme.  Id. (citing Chiriboga, 96 S.W.3d at 681).  Under the old version, suit could be maintained where any part of a cause of action accrued, no matter how unimportant the connection might be.  Chiriboga, 96 S.W.3d at 681.  The amendment requires that the basis for venue be a “substantial part” of the cause of action at issue.  Id.

Additionally, a defendant is permitted to argue, pursuant to Tex. Civ. Prac. & Rem. Code § 15.002(b), that transfer of venue should be allowed for the convenience of the parties and witnesses and the interests of justice.  Id. at 683.  This is an option for transfer of venue for convenience only upon the motion of defendant.  Id.

It is important that you contact an attorney at MCJ to protect your rights and assist you with all litigation matters.

Wrongful Death–Texas Workers’ Compensation Act

Pursuant to Texas Labor Code § 408.001(a):

“Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or work-related injury sustained by the employee.”

Accordingly, if an employer is a subscriber under the Texas Workers’ Compensation Act at all times relevant to a subject accident or death, the recovery of workers’ compensation benefits is intended to be the exclusive remedy, only.

However, Texas Labor Code § 408.001(b) does provide an exception for additional recovery based on intentional acts or omissions and/or gross negligence, as follows:

“This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer’s gross negligence.”

“Although the decedent’s parents and dependent siblings are among the ‘legal beneficiaries’ to whom workers’ compensation death benefits are payable, parents and siblings are not among the specified classes in the Texas Constitution who may recover exemplary damages in the case of [intentional acts or omissions and/or gross negligence].  In order to bring an action for exemplary damages for a wrongful death, the plaintiff must be the ‘surviving husband, widow’ or ‘heirs of his or her body.’”  Bridges v. Phillips Petroleum Co., 733 F.2d 1153, 1984 U.S. App.  LEXIS 21656 (5^th Cir. 1984), cert. denied, 469 U.S. 1163, 105 S. Ct. 921, 83 L. Ed. 2d 933, 1985 U.S. LEXIS 613 (U.S. 1985) (citing Tex. Const. art. XVI, § 26).

In summary, if the employer is a subscriber, worker’s compensation benefits are the exclusive remedy save and except for available exemplary damages as a result of an intentional act or omission of the employer or by the employer’s gross negligence.  However, the exemplary damages are only available to the “surviving spouse of heirs of the body of a deceased employee.”  See Texas Labor Code § 408.001(b).  Texas law is well settled that parents and siblings are not heirs of the body.  Castleberry v. Goolsby Building Corp., 608 S.W.2d 73, 765 (Tex. Civ. App.—Corpus Christi 1980), aff’d 617 S.W.2d 665 (Tex. 1981).

It is important to consult with an attorney at MCJ to help you protect your rights and to assist you with any questions you may have with regard to Texas Workers’ Compensation and/or wrongful death actions.

Texas Cemetery Law

Cemetery laws in the State of Texas are governed by the Texas Health and Safety Code and regulated by the Texas Department of Banking.  The following bullet point summary is intended to highlight key rules governing the use and operation of cemeteries within the state:

Cemeteries are exempt from taxation, seizure from creditors and eminent domain. Health & Safety Code § 711.035.

The location of cemeteries is regulated by § 711.008. The rule effectively prevents the creation of new cemeteries within city limits (except for cemeteries established before 1993 or cemeteries attached to church property).  The basic rule is that new cemeteries must be outside the city limits.  How far out depends on the city’s size.  Cemeteries cannot be within: (1) One mile of cities with a population of 5,000 to 25,000; (2) Two miles of cities with a population of 25,000 to 50,000; (3) Three miles of cities with a population of 50,000 to 100,000; (4) Four miles of cities with a population of 100,000 to 200,000; and (5) Five miles of cities with a population of over 200,000.

According to § 711.021(a), only corporations specifically organized to operate cemeteries can be in the cemetery business. The corporations are called cemetery organizations.  Specifically, individuals, regular corporations, partnerships and trusts cannot operate cemeteries.

A corporation conducting cemetery business can be either “for-profit” or a “non-profit” corporation. Cemetery corporations formed after September 1, 1993, must operate perpetual care cemeteries (“PCC”) unless it falls within an exception under § 711.021(g) (i.e., a family, fraternal, or community cemetery under ten acres; an unincorporated association of plot owners not operated for profit; or a cemetery operated by a church, religious society, or denomination), as follows:

Pursuant to Chapter 712 of the Texas Health & Safety Code, cemeteries established after September 1, 2003, are required to be licensed through the Special Audits Division of the Texas Department of Banking as a PCC.

A PCC must have a Certificate of Authority issued by the Texas Department of Banking to operate in Texas.

A cemetery operating with a Certificate of Authority issued by the Texas Department of Banking means that a perpetual care fund for its maintenance has been established in conformity with the laws of the State of Texas. The Texas Department of Banking is responsible to ensure trust funds are properly deposited and the only the income from the trust is withdrawn to pay for the general maintenance and care of the cemetery property.  Id. at § 712.021.

The minimum capital requirements are set out in § 712.003 (ranging from $15,000 to $75,000, depending upon the population of the municipality served). The amounts needed in the initial trust fund are set out in § 712.004 (ranging from $15,000 to $50,000).

Cemetery organizations may not adopt or enforce a rule that prohibits internment because of race, color, or national origin of a decedent. Id. at § 711.032.

The requirements as to cemetery organizations for the layout of cemeteries are controlled by § 711.034. The land must be divided into gardens or sections, and a map must be made showing the plots contained within the boundaries with specific numbers assigned to each plot.  The map shall be filed with the county clerk.

Further, the public has the right to reasonably ingress and egress to all cemeteries for purposes of visiting the cemetery.  Id. at § 711.041.

It is important to consult with an attorney at MCJ to assist you with any questions you may have with regard to Texas cemetery law.

Informal Marriage (aka “Common-Law Marriage”)

The elements of an informal marriage (the “common-law marriage”) in Texas are:  (1) an agreement to be husband and wife; (2) living together as husband and wife; and (3) a holding out to the public that the couple is husband and wife.  Whether an informal marriage exists is a fact question to be determined by the trier of fact.  The burden of proof is on the one seeking to establish the existence of an informal marriage.  However, in proving the existence of an informal marriage, the party alleging the existence of a common-law marriage is not be required to establish any facts in addition to the three elements set forth in the Texas Family Code.

It is important to consult an attorney at MCJ to help protect your rights and to assist you with any questions you may have with regard to any family law matters.

Homestead Exemptions

Real property appraisals for any calendar year are typically sent by appraisal districts in the spring, notifying homeowners of proposed tax valuation and liability.  During these times, it is important not only to review the appraised value of the real property, but also to ensure that all of the proper and applicable exemptions are in effect, such as the homestead exemption.

To qualify for a homestead exemption, a party must demonstrate that the home or property is occupied as their “principal residence.”  The question is, more succinctly, no whether the home or property was a residence, but whether it was their principal one.

The common meaning of “principal” is “most important, consequential, or influential: relegating comparable matters, items, or individuals to secondary rank.”  The ordinary or common meaning of “principal residence” in the context of the definition of “residential homestead” under Tex. Tax Code § 11.13(j) is the owner’s main or primary residence.

It is important to consult an attorney at MCJ to help protect your rights and to assist you with any questions you may have with regard to your real estate.

Go Tech!

McWhorter, Cobb & Johnson, LLP, Proudly Supports the Texas Tech Red Raiders

Texting & Driving in Texas

On June 6, 2017, Texas Governor Greg Abbott announced that he had signed House Bill 62 into law.  The new law, codified as Texas Transportation Code Section 545.4251, states, in part, as follows:

“An operator commits an offense if the operator uses a portable wireless communication device to read, write, or send an electronic message while operating a motor vehicle unless the vehicle is stopped.”  See Tex. Transp. Code § 545.4251(b).

Accordingly, effective September 1, 2017, texting while driving within the State of Texas will be punishable by a fine of $25-$99 for first-time offenders, and $100-$200 for repeat offenders.  See Tex. Transp. Code § 545.4251(e).

It is important to note that the statute only covers operators who “read, write, or send an electronic message” via a “wireless communication device.”  See id.; see also Tex. Transp. Code § 545.425(a)(2) (“Wireless communication device” means a device that uses a commercial mobile service).

Further, the statute states specifically that it “preempts all local ordinances, rules or other regulations” adopted by cities and towns across the State relating to the use of “portable wireless communication devices” to “read, write, or send an electronic message.”  See Tex. Transp. Code § 545.4251(j).  However, this statute will not preempt more stringent cell phone bans in local ordinances, rules and regulations in at least 45 cities throughout the State.

While there are some affirmative defenses to this offense, it is important to consult an attorney at MCJ to help you protect your rights and to receive legislative updates moving forward.

Jurisdiction for Will Contest

As a will contest is a matter appertaining or incident to the estate of the deceased testator, subject matter jurisdiction of the contest usually lies (at least initially) in whichever court the application to probate the will is filed.  Tex. Estates Code § 32.001 (asserting that “[a]ll probate proceedings must be filed and heard in a court exercising original probate jurisdiction” and a “court exercising original probate jurisdiction also has jurisdiction of all matters related to the probate proceeding” as specified for that court).

Pursuant to Tex. Estates Code § 32.005, “[i]n a county in which there is a statutory probate court, the statutory probate court has exclusive jurisdiction of all probate proceedings, regardless of whether contested or uncontested.”  See also Carlisle v. Bennett, 801 S.W.2d 589, 592 (Tex. App.—Corpus Christi 1990, no writ) (noting that where courts have concurrent subject matter jurisdiction, the first court to acquire jurisdiction has dominant jurisdiction).

A district court has original jurisdiction over all proceedings concerning trusts, including questions related to construction and validity, except for the concurrent jurisdiction otherwise conferred by law on statutory probate courts under Tex. Estates Code § 32.006.

Accordingly, the probate court, at least initially, has subject matter jurisdiction over any suit contesting the will and trust.

Attorney’s Fees

Unless there is a statutory basis upon which a judgment for the recovery of attorney’s fees may be based, there is no support for an award of the same.  See State v. Estate of Brown, 802 S.W.2d 898 (Tex. App.—San Antonio 1991, no writ).  Any assertion that merely filing pleadings or motions is sufficient to support the judgment for attorney’s fees would be untenable.  See Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812 (Tex. 1983).

There is NO statutory basis for recovery of attorney’s fees for a will or trust contest.  Contra Tex. Estates Code § 352.052 (stating that a party seeking to have a will admitted to probate is entitled to recovery of attorney’s fees); Collins v. Smith, 53 S.W.3d 832 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (in contest of will and deed made by 90-year-old in poor health, jury finding that contestant’s attempt to probate earlier will was not made in good faith and with just cause upheld on appeal).  (*NOTE:  This provision would only apply if we were also seeking the probate of a prior will.).

If you want to contest a will, you may need to contact an attorney immediately to help you protect your rights.

Statute of Limitations on Counterclaims Against Decedent’s Estate

Generally, statute of limitations issues applicable to claims against an estate are governed by Chapter 355 of the Texas Estates Code (“Estates Code”).  Accordingly, § 355.065 of the Estates Code states that “[a] judgment may not be rendered in favor of a claimant on a claim for money that has not been (1) legally presented to the personal representative of an estate; and (2) wholly or partly rejected by the representative or disapproved by the court.”  In the case of a claim for money, the applicable statute of limitations for claims against an estate are some of the shortest in Texas jurisprudence.

However, commentary to § 355.065 of the Estates Code states that “[t]he requirement of presentment and disallowance of a claim before it can be sued upon applies only to ‘claims for money.’  It does not apply to unliquidated claims, such as tort claims.”  See Wilder v. Mossler, 583 S.W.2d 664 (Tex. Civ. App.—Houston [1st Dist.] 1979, no writ) (emphasis added).

As such, the applicable statute of limitations set forth in the Texas Civil Practice and Remedies Code (“CPRC”) would govern these tort counterclaims, including any issues related thereto.

CPRC § 16.003 provides that a person must bring suit for a personal injury within a two-year limitations period.  See also Valverde v. Biela’s Glass & Aluminum Prods., 293 S.W.3d 751, 753 (Tex. App.—San Antonio 2009, pet. denied).  However, § 16.062 of the CPRC tolls for one year any action in favor of or against a dead person.  See CPRC § 16.062(a).  Thus, if a plaintiff dies before suit is filed, there can be up to one additional year to bring an action.  Likewise, if a defendant dies before suit is filed, the plaintiff has an additional year to bring an action.  Realize, however, that if a personal representative is appointed within those 12 months, then the tolling is only from the date of death to the date the personal representative qualifies.  See id. at § 16.062(b); see also Sowell v. Dresser Indus., 866 S.W.2d 803, 807 (Tex. App.—Beaumont 1993, writ denied).  The presumption is that a personal representative will sue or defend as appropriate.

In the event there is an issue with the expiration of the above-described statute of limitations period, § 16.068 of the CPRC provides for the following:

If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence.

(emphasis added); see also Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex. 1990); Ware v. Everest Grp., 238 S.W.3d 855, 866 (Tex. App.—Dallas 2007, pet. denied).

There may, however, be issues with the applicability of this “relation back doctrine” if the underlying lawsuit was brought solely as a wrongful death cause of action, as the wrongful death cause of action belongs solely the to the surviving spouse, children and the parents of the deceased, but not the heirs at law or the estate of the deceased.  See Sowell, 866 S.W.2d at 807.  Further, while the “relation back doctrine” operates to cure potential statute of limitations problems, failing to name the proper party when suing or defending an estate can be fatal.  Estates, guardianships and trusts are not legal entitles and cannot sue or be sued.  The proper defendant or counter-defendant, the personal representative of the estate, must be made a party.  See, e.g., Price v. Estate of Anderson, 522 S.W.2d 690 (Tex. 1975); Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex. 1987).

If you have a claim against someone and they die, you may need to contact an attorney immediately to protect your rights.

Contesting a Will

In Texas (as in many states), if a beneficiary contests the will and loses, and if the will contains a no-contest clause and it is given effect, the beneficiary forfeits her legacy.  There is a very narrow exception that would allow the beneficiary to receive the designated benefits under the will which requires the court to find that, even though the beneficiary loses the will contest, she brought the action in good faith and had just cause to contest the will.  Tex. Prop. Code § 254.005; see Hammer v. Powers, 819 S.W.2d 669 (Tex. App.—Fort Worth 1991, no writ) (held in favor of will based on the affidavits and testimony provided).

Testamentary Capacity.  As is true in most states, a will can be contested at the time the will is offered for probate, or within two years after the will has been formally admitted to probate (i.e., after due execution has been proved).  In fact, most will contests are filed within that two-year period after the will has been probated.  Once the will has been admitted to probate, the burden as to testamentary capacity shifts to the contestant.

At the time of executing the will, the testator must have had sufficient capacity to: understand the nature of the act he was doing; know the nature and character of his property; know the objects of his bounty; and understand the dispositions he was making.

Capacity to make a will may exist even where capacity to make a contract does not.  The fact that a testator was committed to a mental hospital shortly before and shortly after executing a will, while of strong probative force, is not conclusive evidence of lack of capacity; a juror may still find the testator met the four-point test above.  Likewise, evidence that the testator was old, feeble, and in poor health is, by itself, insufficient to establish a lack of testamentary capacity.  Rich v. Rich, 615 S.W.2d 795 (Tex. Civ. App. 1980).

Evidence of lack of testamentary capacity at times other than the time of execution can be used to establish incapacity on the date the will was executed if such evidence is probative of a lack of capacity at the time the will was executed.

Undue Influence.  To establish undue influence, the contestant must prove:  (1) Existence and exertion of an influence.  The contestant must prove that a dominant influence existed and was exerted upon the testator; (2) Overpowers mind and will of testator.  One contending that the testator was unduly influenced must further prove that the effect of the influence was to overpower the mind and free will of testator; and (3) Will would not have been executed “but for” that influence.  The will contestant must prove that the product of the influence is a will that would not have been executed “but for” the influence.  “[T]he influence is no undue unless the free agency of the testator was destroyed and a testament produced that expresses the will of the one exerting the influence . . . [O]ne may request or even importune and entreat another to execute a favorable dispositive instrument; but unless [these] are shown to be so excessive as to subvert the will of the maker, they will not taint the validity of the instrument with undue influence.”  Rothermel v. Duncan, 369 S.W.2d 917 (Tex. 1963).

“[A] will cannot be set aside on proof of facts which at most do no more than show an opportunity to exercise influence.”  Rothermel, 369 S.W.2d at 917.  Thus, regardless of the type of relationship that existed between the testator and the beneficiary, the elements of undue influence must be met.  Evans v. May, 923 S.W.2d 712 (Tex. Civ. App. 1996).

Further, mere susceptibility to influence due to old age or physical condition is insufficient to prove undue influence.  This evidence may be considered as establishing a physical incapacity to resist or the susceptibility of the testator’s mind to an influence exerted.  However, this evidence does not establish that the testator’s mind was in fact subverted and overpowered at the time the will was executed.

Finally, the mere fact that the will makes an unnatural disposition that favors some family members over others is not enough to establish undue influence.  “[A] will may not be set aside because some interested party, or jury, disagrees with the disposition.”  In re Estate of Davis, 920 S.W.2d 463 (Tex. App. 1996) (reversing jury verdict).  It is only where all reasonable explanation for the devise is lacking that the trier of facts may take this circumstance as a badge of disorder or of undue influence.

Testator Did Not Know Contents of Will.  Texas recognizes this unusual and rarely encountered ground for denial of probate if suspicious circumstances are present.  A competent testator is presumed to know the contents of a testamentary instrument he has signed, unless a set of circumstances exists that casts suspicion on the issue.  Gilkey v. Allen, 617 S.W.2d 308 (Tex. Civ. App. 1981).  This presumption arises even if the testator was blind or illiterate.

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