TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00109-CV

Frank Smith=s, Inc. and Terry Williamson, Appellants

v.

Ralph E. Sheffield, Jr., Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF BELL COUNTY, 

NO. 22,160, HONORABLE EDWARD S. JOHNSON, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

The trial court dismissed this cause without prejudice on the basis that it lacked jurisdiction 

of appellee Ralph E. Sheffield=s claims against appellants Frank Smith=s, Inc. and Terry Williamson. 

Appellants ask us to reverse the trial court=s dismissal and reinstate the case in the trial court. They allege 

that the trial court had jurisdiction over Sheffield=s claims because: (1) as a county court at law, the trial 

court had jurisdiction pursuant to its general jurisdictional statute; and (2) in the exercise of its original 

probate jurisdiction, it had power over claims incident to the estate of Frank Smith. We will affirm the 

dismissal.

BACKGROUND
2

Frank Leahy Smith, the principal and chief executive officer of Frank Smith=s, Inc. (Athe 

Corporation@), died in Bell County on July 11, 2000. A few weeks later, Rick Leahy Smith, the named 

independent executor, filed an application in cause number 22,160 in the county court at law to probate the 

will of the decedent. On August 18, the trial court signed the order probating the will and authorizing 

issuance of letters testamentary. Meanwhile, on August 10, 2000, Sheffield filed assorted claims against the 

Corporation in the 169th District Court of Bell County. Sheffield alleged that the Corporation breached its 

contract to sell him a restaurant owned and operated by the Corporation. He contended that he negotiated 

the contract with Frank Smith. Sheffield also argued that the Corporation made fraudulent representations 

to him regarding the sale. The Corporation answered and filed a plea to the jurisdiction on the ground that, 

because shares of stock in the Corporation constitute a substantial asset in the estate of Frank Smith, the 

issues in the suit were ancillary or pendent to Smith=s probate proceedings.1 The district court granted the 

plea and dismissed the suit without prejudice. That decision was not appealed.

 

1

 The record reflects that the corporation based its argument on the probate code, see, e.g., Tex. 

Prob. Code Ann. '' 5(c), (f), 5A(a) (West Supp. 2002), as well as constructions of those provisions in 

Bailey v. Cherokee County Appraisal District, 862 S.W.2d 581 (Tex. 1993), and Carlisle v. Bennett, 

801 S.W.2d 589 (Tex. App.CCorpus Christi 1990, no writ). These matters are addressed below.
3

Shortly thereafter, Sheffield filed his claims against the Corporation in cause number 44,380 

in the constitutional county court. By agreed order, the case was transferred to cause number 22,160 in the 

county court at law (hereinafter Athe trial court@).2 In his first amended petition, Sheffield joined as a 

defendant Terry Williamson, the daughter of Frank Smith and an officer of the Corporation. According to 

Sheffield, Williamson tortiously interfered with the contractual and business relationship existing between him 

and Frank Smith, which Awas the sole cause of the Corporation=s failure to close the sale of the Restaurant.@

Sheffield never amended his pleadings to allege any action against Smith individually or his 

estate, never joined Smith=s personal representative as a party, and never served Smith=s executor. 

Appellants moved for summary judgment, which the trial court granted, rendering judgment in favor of 

appellants and ruling that Sheffield take nothing on his claims. Sheffield filed a motion for new trial; at the 

hearing, he apparently urged an oral motion to dismiss the cause for lack of jurisdiction. The trial court 

withdrew its judgment and granted the motion to dismiss, determining that the court Alacked subject matter 

jurisdiction to grant the original summary judgment because the personal representative of the Estate had not 

been made a party thereto.@ The trial court then dismissed without prejudice Athe separate suit styled Ralph 

E. Sheffield, Jr. vs. Frank Smith=s, Inc. and Terry Williamson, Defendants, as encompassed in the probate 

proceeding styled In the Estate of Frank Leahy Smith, Deceased.@

3

 This appeal followed. 

 

2

 According to Sheffield=s amended petition, jurisdiction was proper in the county court at law 

pursuant to section 5A(a) of the probate code, Aas the estate of Frank Smith is pending in this Court and 

this is a case which is >appertaining or incident to an estate= within the meaning of the Probate Code.@ See 

Tex. Prob. Code Ann. ' 5A(a).

3

 In addition, the trial court ordered that it retained probate jurisdiction Aover all other pending 

matters in this probate proceeding.@
4

STANDARD OF REVIEW

Initially, we note, the position of the parties seems reversed. As Sheffield admits, he Ais in 

the anomalous position of arguing to sustain the dismissal of his own suit,@ while the appellants urge 

reinstatement of the action against them. However, the question of jurisdiction is fundamental and may be 

raised at any time. Tullos v. Eaton Corp., 695 S.W.2d 568, 568 (Tex. 1985). The fact that the parties 

here agreed to have the suit consolidated with the probate proceeding is irrelevant; subject matter 

jurisdiction exists by operation of law only, and cannot be conferred upon the court by consent or waiver. 

See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000). Thus, subject matter jurisdiction 

raises a question of law, which we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 

928 (Tex. 1998).

The standard by which we review subject matter jurisdiction requires the pleader to 

allege facts that affirmatively demonstrate the court=s jurisdiction to hear the cause. See Texas 

Ass=n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (citing Richardson v. 

First Nat=l Life Ins. Co., 419 S.W.2d 836, 839 (Tex. 1967)). Our review is guided by the 

presumption that the trial court accepts the allegations in the petition as true, unless the 

defendant pleads and proves that they were fraudulently made to confer jurisdiction. Bland 

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The party asserting the jurisdictional 

challenge must show that, even if all the allegations in the pleadings are true, there is an incurable 

jurisdictional defect apparent from the face of the pleadings rendering it impossible for the 

petition to confer jurisdiction on the trial court. See City of San Angelo v. Smith, 69 S.W.3d 303, 
5

305 (Tex. App.CAustin 2002, pet. denied) (citing Bybee v. Fireman=s Fund Ins. Co., 331 S.W.2d 

910, 914 (Tex. 1960)). If the face of the petition does not affirmatively demonstrate a lack of 

jurisdiction, the trial court must liberally construe the plaintiff=s allegations in favor of jurisdiction. 

Texas Ass=n of Bus., 852 S.W.2dat 446; Peek v. Equipment Serv. Co., 779 S.W.2d 802, 804 (Tex. 

1989).

When reviewing a trial court order dismissing a cause for want of jurisdiction, 

Texas appellate courts Aconstrue the pleadings in favor of the plaintiff and look to the pleader=s 

intent.@ Texas Ass=n of Bus., 852 S.W.2d at 446 (quoting Huston v. Federal Deposit Ins. Corp., 

663 S.W.2d 126, 129 (Tex. App.CEastland 1983, writ ref=d n.r.e.)). Because the trial court in its order

determined that it lacked subject matter jurisdiction A[a]fter due consideration of evidence in the pleadings, 

the motions, the response, . . . and the arguments of counsel,@ the nature of the issues raised in 

Sheffield=s challenge to the jurisdiction determines the scope of review. We are therefore not 

required to look solely to the pleadings but may consider evidence and must do so when 

necessary to resolve the jurisdictional issue raised. See Bland, 34 S.W.3d at 554; see also 

Mayhew, 964 S.W.2d at 928. Here, the trial court filed findings of fact and conclusions of law. 

Findings of fact are not conclusive when the appellate court has a complete reporter=s record of the 

proceedings because the findings may be reviewed for legal and factual sufficiency of the evidence to 

support them. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Tucker v. Tucker, 908 

S.W.2d 530, 532 (Tex. App.CSan Antonio 1995, writ denied). However, the record here does not 

contain a reporter=s record of the hearing at which the trial court considered Sheffield=s challenge 
6

to the jurisdiction; therefore, we must presume that sufficient evidence was introduced to support 

the trial court=s findings of fact and conclusions of law and that the judgment was based upon 

those findings and conclusions. See Scott v. Schneider Estate Trust, 783 S.W.2d 26, 28 (Tex. 

App.CAustin 1990, no writ).

DISCUSSION

Pertinent to this appeal, the trial court found that: (1) the suit=s claims involved an amount in 

controversy greater than $100,000; (2) Rick Smith, Frank Smith=s personal representative, had never been 

joined as a party to the action, either individually or in his capacity as the independent executor of Frank 

Smith=s estate, and he had never been served with citation; and (3) Sheffield raised in his new trial motion 

the fact that the trial court=s probate jurisdiction was never properly invoked because the independent 

executor was never made a party to the suit and served with citation. The trial court concluded that: (1) the 

amount in controversy exceeded the court=s subject matter jurisdiction and that it can only exercise 

jurisdiction on a matter Aancillary or pendant to a pending estate@; (2) section 5A of the probate code sets 

out the probate court=s jurisdiction; (3) an estate is an indispensable party to any proceeding in the probate 

court; (4) in order to sue an estate, the personal representative of the estate must be made a party to the suit 

and served with citation; and (5) the court was therefore without jurisdiction over the Sheffield action 

because the personal representative of the estate was not made a party. 

Appellants= first issue is broadly presented as Awhether the Trial Court erred in dismissing 

this case for lack of subject matter jurisdiction.@ Although appellants break this issue into the two broad 

arguments stated at the outset of this opinion, appellants present us with six other issues in which they 
7

attempt to challenge the trial court=s findings of fact and conclusions of law.4 Rather than discuss each issue 

separately, we will discuss them in the context of appellants= general arguments, which are that the trial court 

erred in sustaining the motion to dismiss because the trial court had jurisdiction to render the summary 

judgment based on its probate jurisdiction and its general jurisdiction.

The Trial Court=s Probate Jurisdiction

In the words of the supreme court: ATexas probate jurisdiction is, to say the least, somewhat 

complex.@ Palmer v. Coble Wall Trust Co., Inc., 851 S.W.2d 178, 180 n.3 (Tex. 1992). Thus, it is first 

necessary to understand the statutory process by which the trial court consolidated Sheffield=s claims with 

the probate proceedings in Frank Smith=s estate. The probate code vests general probate jurisdiction in the 

constitutional county courts. Tex. Prob. Code Ann. ' 4 (West Supp. 2002). The government code, 

however, extends probate jurisdiction to the statutory county courts. Tex. Gov=t Code Ann. ' 25.0003(d) 

(West Supp. 2002). Thus, a statutory county court has concurrent probate jurisdiction with the 

 

4

 In their second issue, appellants challenge the first finding (as listed above) as being immaterial, or 

alternatively, as being a mixed finding of fact and conclusion of law supported by no evidence as a finding of 

fact, or as being clearly erroneous as a conclusion of law. In their third and fourth issues, they challenge, 

respectively, the second and third findings (as listed above) as being mixed findings of fact and conclusions 

of law supported by no evidence as findings of fact, or as being clearly erroneous as conclusions of law. 

Without a complete reporter=s record, challenges to the sufficiency of the evidence cannot succeed. See 

Scott v. Schneider Estate Trust, 783 S.W.2d 26, 28 (Tex. App.CAustin 1990, no writ).

In their fifth issue, appellants contend that the trial court=s first and fifth conclusions of law are 

erroneous. In their sixth issue, appellants contend that the trial court=s second conclusion of law is 

Aerroneous in so far as it limits the Trial Court=s jurisdiction to '5A of the Texas Probate Code.@ Finally, in 

their seventh issue, appellants challenge the third and fourth conclusions of law as being immaterial and 

therefore erroneous.
8

constitutional county courtCto the exclusion of the district courtCunless there is also in that county a 

Astatutory probate court.@ In the latter case, only the statutory probate court exercises probate jurisdiction 

concurrent with the constitutional county court. See id. ' 25.0003(e), (f).

Bell County has no statutorily designated probate court; therefore, the statutory county 

court exercises original probate jurisdiction. Sitting as a probate court, the county court at law has 

jurisdiction over the estate of Frank Smith and over claims incident to the estate. Tex. Prob. Code Ann. '

5(f) (AAll courts exercising original probate jurisdiction shall have the power to hear all matters incident to an 

estate.@). In his pleadings, Sheffield alleged that the court had jurisdiction of his cause of action pursuant to 

probate code section 5A(a), which provides:

In proceedings in the constitutional county courts and statutory county courts at law, the 

phrases Aappertaining to estates@ and Aincident to an estate@ in this Code include the probate 

of wills, the issuance of letters testamentary and of administration, the determination of 

heirship, and also include, but are not limited to, all claims by or against an estate, . . . 

and generally all matters relating to the settlement, partition, and distribution of 

estates of deceased persons.

Id. ' 5A(a) (emphasis added). Appellants rely on this language, as well as Bailey v. Cherokee County 

Appraisal District, 862 S.W.2d 581 (Tex. 1993), to argue that the county court at law had exclusive 

jurisdiction over Sheffield=s claims because the administration of Frank Smith=s estate was already pending 

when this lawsuit was originally filed in the district court. Sheffield=s claims, however, are not against Smith=s 

estate and relate to the settlement of his estate only to the extent that Smith owned stock in the defendant 

Corporation at the time of his death.
9

In Bailey, the supreme court was presented with the Aquestion whether a suit to collect ad 

valorem taxes accruing on estate property during administration is a claim against the estate, properly filed in 

probate court, or a claim for which heirs are personally liable,@ so that the action could be filed in district 

court. Id. at 582. The supreme court determined that ad valorem taxes accruing during administration are 

classified as claims against the estate within the statutory definition of Amatters incident to an estate@; 

therefore, Abecause the ongoing administration in the county court at law sitting in probate was the only 

probate proceeding pending, that court alone had jurisdiction over matters incident to the estate.@ Id. at 

585-86. Although the district court has probate jurisdiction in some instances, where the probate 

proceeding was first filed in the statutory county court, the latter had dominant jurisdiction. Id. Here, 

however, appellants make no argument, cite no authority, and refer us to no evidence in the record by which 

to conclude that Sheffield=s claims against the Corporation and one of its officers somehow constitute claims 

Aagainst the estate@ of Frank Smith.5 Without deciding the merits of the case, we note that although 

Sheffield and Smith may have negotiated an agreement, the allegations reflect that Smith was acting as an 

agent for the Corporation. All of Sheffield=s allegations are against the Corporation and another of its 

officers. And although shares in the Corporation may constitute some of the personal property Frank Smith 

 

5

 The probate code defines Aclaims@ to include Aliabilities of a decedent which survive.@ Tex. Prob. 

Code Ann. ' 3(c) (West Supp. 2003). AEstate@ denotes Athe real and personal property of a decedent, 

both as such property originally existed and as from time to time changed in form by sale, reinvestment, or 

otherwise, and as augmented by any accretions and additions thereto . . . and substitutions therefor, and as 

diminished by any decreases therein and distributions therefrom.@ Id. ' 3(l).
10

owned at his death, Frank Smith=s, Inc. is a separate legal entity and, therefore, not the property of the 

decedent. Thus, appellants= reliance on Bailey is misplaced to the extent they argue that the trial court had 

exclusive jurisdiction because Sheffield=s claims constitute Aclaims against the estate.@

The trial court below did not dismiss Sheffield=s cause of action on the ground that it was 

not a matter Aincident to@ the estate of Frank Smith. Rather, relying on this Court=s opinion in Goodman v. 

Summit at West Rim, Ltd., 952 S.W.2d 930 (Tex. App.CAustin 1997, no pet.), the court dismissed on 

the basis that Aan estate is an indispensable party to any proceeding in the probate court.@ Id. at 933. In 

Goodman, the executor of an estate filed an action to clear title to property she claimed was part of the 

estate; the decedent had entered into a contract to sell the property before her death, but the purchaser had 

not accomplished all of the obligations he had to meet before the purchase. Id. at 932. The purchaser 

counterclaimed against the executor and another owner of the property for specific performance, as well as 

filing a third-party action against the City of Austin for not issuing the approvals necessary for him to 

complete the purchase contract. Id. The probate court exercised jurisdiction over all of the actions, but 

later dismissed all claims by and against the estate. After the estate administration concluded, upon motion 

by the third-party defendants the court determined that it had no remaining jurisdiction over the third-party 

claims and dismissed them without prejudice. Id. We held that the probate court Amay only exercise 

>ancillary= or >pendent= jurisdiction over a claim that bears some relationship to the estate. Once the estate 

settles, the claim is >ancillary= or >pendent= to nothing, and the court is without jurisdiction.@ Id. at 933.

Sheffield expands on this holding to argue that Athe probate court=s jurisdiction over matters 

>appertaining or incident= to an estate was never properly invoked. The personal representative of the 
11

estate was never made a party.@ We agree. After a review of Sheffield=s pleadings and the record before 

us, we are satisfied that from the face of the record it is apparent that Rick Smith, the independent executor, 

was never joined as a party to Sheffield=s suit. Appellants do not challenge the trial court=s finding on this 

point by directing us to contrary evidence in the record. Thus, because the estate=s personal representative, 

an Aindispensable party,@ was never made a party to this suit, the trial court could not render or enforce a 

judgment against or binding upon the estate. See id. at 933 (AThe estate=s presence is required for the 

determination of any proceeding that is ancillary or pendent to an estate.@). Further, even if Smith=s personal 

representative could have been joined, it is unclear to what end. Sheffield urged no claimagainst Smith or 

his estate and Smith himself had never been joined as a party. This is not a situation, therefore, in which 

Smith=s personal representative could simply be substituted for Smith.

Appellants argue that Rick Smith was already a party to the same cause number in which 

the lawsuit was being litigated; therefore, he did not need to be formally joined and no additional service 

was required. According to appellants, Sheffield=s claims resided within the Aoverarching jurisdiction@ of the 

trial court conferred on it by Rick Smith=s filing of the application for probate. We disagree. A county court 

at law functioning as a probate court does so primarily for the limited purpose of administering decedents=

estates. See generally Tex. Prob. Code Ann. '' 5, 5A (West Supp. 2002). The trial court had discretion 

to resolve Sheffield=s claims against appellants to the extent they were necessary to resolve matters Aincident 

to@ the estate. See id. at 934. But the trial court could not exercise that discretion without the presence of 

the estate=s personal representative as a party to the lawsuit brought by Sheffield. The consolidation of 

Sheffield=s lawsuit with the estate administration proceeding did not accomplish that purpose. 
12

Furthermore, we cannot say that the trial court abused its discretion by holding that it lost 

jurisdiction. See Sabine Gas Transmission Co. v. Winnie Pipeline, 15 S.W.3d 199, 201 (Tex. 

App.CHouston [14th Dist.] 2000, no pet.) (stating issue as whether Aa probate court abuse[s] its discretion 

by holding that it loses jurisdiction over claims which it has ancillary or pendent jurisdiction when no other 

claims before the court have any relationship to those claims even though the estate administration is still 

pending@). Sheffield=s lawsuit was transferred to the probate proceeding because the parties agreed that it 

was a matter incident to Smith=s estate. However, because there was never any attempt to make it an 

action incident to the estate by naming the estate or the representative as a defendant, the trial court could 

decide that its continued entertainment of Sheffield=s claims did not efficiently promote the administration of 

Smith=s estate, and that those claims should be decided elsewhere.6 Because the trial court found that it 

never properly acquired jurisdiction, it was not an abuse of discretion to dismiss without prejudice.

 

6

 Because the estate was never made a party, we reject appellants= argument that the trial court 

retains probate jurisdiction over Sheffield=s claims because the estate administration is still pending. Cf. 

Sabine Gas Transmission Co. v. Winnie Pipeline, 15 S.W.3d 199, 201 (Tex. App.CHouston [14th 

Dist.] 2000, no pet.) (holding trial court abused discretion where estate was still party to probate 

proceeding when trial court dismissed ancillary and pendent claims).

Appellants attempt to avoid the failure to name the estate representative as a 

defendant by arguing that Rick Smith testified by deposition and generally supported appellants= position 

in the trial court, and as a result the requirements of probate jurisdiction were satisfied. It is well-settled 
13

law that the estate of a decedent is not a legal entity and may not sue or be sued as such. Price v. 

Estate of Anderson, 522 S.W.2d 690, 691 (Tex. 1975). Thus, a suit seeking to establish liability 

against a decedent should ordinarily be instituted against the personal representative or, under 

appropriate circumstances, against the heirs or beneficiaries. Id. Appellants cite Dueitt v. 

Dueitt, 802 S.W.2d 859 (Tex. App.CHouston [1st Dist.] 1991, no writ), in which the court declined 

to invalidate a summary judgment granted on behalf of a decedent=s estate. The plaintiff=s 

petition in Dueitt was brought solely in the name of the decedent=s estate; however, the court 

noted that the coexecutor of the decedent=s estate attached an affidavit to the petition attesting to 

the truth of the allegations contained therein. A similar affidavit was attached to a response to a 

summary-judgment motion. The court concluded that the coexecutor Adid actively appear in his 

representative capacity on behalf of the party plaintiff in the case@ by Averifying the allegations of 

the plaintiff's petition.@ Id. at 861.

In contrast, a review of the record here shows that Rick Smith did not actively participate in 

the suit in his capacity as the independent executor of Frank Smith=s estate or in any other legal capacity 

related to Smith=s estate. See Supak v. Zboril, 56 S.W.3d 785, 794 (Tex. App.CHouston [14th Dist.] 

2001, no pet.). Rather, he appeared at his deposition only in his capacity as an officer and shareholder of 

the Corporation and as a fact witness to the events giving rise to the suit. Nowhere in that deposition did he 

mention his capacity as executor of the estate, much less that he was appearing in such capacity. 

Furthermore, the record does not contain any pleadings, affidavits, verifications or other evidence showing 

Rick Smith participated in the case as the purported representative of Frank Smith=s estate so as to 
14

make the judgment binding against him in that capacity. See id. Because we agree with the trial 

court that neither party joined Rick Smith to the action in his capacity as the independent executor of Frank 

Smith=s estate, which was necessary for the trial court to exercise its probate jurisdiction over the lawsuit, 

we overrule appellants= third, fourth, and seventh issues.

The Trial Court=s General Statutory Jurisdiction

In their second, fifth, and sixth issues, appellants essentially contend that the trial court erred 

by limiting its jurisdiction to that conferred upon it by section 5A(a) of the probate code, even though this 

was the basis for jurisdiction alleged by Sheffield. According to appellants, even if the trial court=s probate 

jurisdiction fails because Rick Smith was never made a party, the trial court nevertheless had jurisdiction 

over the lawsuit pursuant to its general jurisdictional statute. Chapter 25 of the government code sets out 

the jurisdiction of the county courts at law. Section 25.0003(c) provides:

(c) In addition to other jurisdiction provided by law, a statutory county court exercising 

civil jurisdiction concurrent with the constitutional jurisdiction of the county court has 

concurrent jurisdiction with the district court in:

(1) civil cases in which the matter in controversy exceeds $500 but does not exceed 

$100,000, excluding interest, statutory or punitive damages and penalties, and 

attorney=s fees and costs, as alleged on the face of the petition . . . .

Tex. Gov=t Code Ann. ' 25.0003(c)(1) (West Supp. 2002). We agree with appellants to the extent that a 

county court at law ordinarily can exercise concurrent jurisdiction over a civil lawsuit like the current 

controversy pursuant to this statutory authority, regardless of its probate jurisdiction. However, because the 
15

trial court in this case found that the matter in controversy exceeded $100,000, we must reject appellants=

overall contention.

Appellants argue that the trial court=s finding is immaterial because Sheffield=s 

pleadings invoked the trial court=s jurisdiction by stating that the unliquidated damages sought 

were Awithin the jurisdictional limits@ of the court. See Tex. R. Civ. P. 47(b). Although the trial 

court must liberally construe the plaintiff=s allegations in favor of jurisdiction if the face of the 

petition does not affirmatively demonstrate a lack of jurisdiction, see Peek, 779 S.W.2d at 804, the 

trial court had the discretion to consider evidence at the hearing on subject matter jurisdiction. 

See Bland, 34 S.W.3d at 554. As we noted earlier, we have not been presented with a reporter=s 

record of the hearing at which the trial court considered Sheffield=s challenge to the jurisdiction. 

Sheffield states in his brief that the trial court considered summary judgment evidence, including 

the March 6, 2000, agreement, which formed the basis for the lawsuit, and we must presume that 

sufficient evidence was produced to support the trial court=s finding that the suit involves an 

amount Agreater than@ its jurisdictional limit. See Scott, 783 S.W.2d at 28. We may consider 

evidence beyond the face of the pleadings and must do so when necessary to resolve the 

jurisdictional issue raised. See Bland, 34 S.W.3d at 554. Appellants do not direct us to any 

contrary evidence in the record, and therefore fail to satisfy their burden in making a legal 

sufficiency challenge in their second issue.

Appellants also challenge the trial court=s factual finding by arguing that in the event the 

matter in controversy exceeds the trial court=s jurisdiction, Athe remedy is to reduce the damage award, not 
16

dismiss the case.@ For support, appellants cite Picon Transportation, Inc. v. Pomerantz, 814 S.W.2d 

489 (Tex. App.CDallas 1991, writ denied). In Picon, the plaintiff=s petition sought recovery of damages in 

an amount Anot less than@ $49,860, which was below the then $50,000 jurisdictional limit for the Collin 

County court at law. Id. at 490. The jury awarded the plaintiff $125,000; because the $75,000 in excess 

of the jurisdictional limit did not accrue as a result of the passage of time, the court held that the trial court 

erred in rendering this judgment. Id. However, because the plaintiff=s last live pleading requested an 

amount within the jurisdictional limit, the court modified the judgment to reduce the damages from $125,000 

to $49,860. Id. at 491.

We find Picon to be inapplicable to the current controversy. Here, damages were never 

awarded, and thus there are no damages to reduce. Unlike Picon, the trial court considered evidence 

before trial and determined that the matter in controversy was beyond its jurisdictional limits. The Bell 

County court at law is a creature of statute, intended by the legislature to be a court of concurrent but 

limited jurisdiction. See Tex. Gov=t Code Ann. ' 25.0003(c)(1). Here, the trial court determined, after a 

review of the pleadings and the evidence, that it never acquired jurisdiction because the amount in 

controversy exceeded $100,000. Because appellants make no attempt to direct this Court to evidence that 

would weigh against the trial court=s finding of fact, we cannot say that the trial court erred by limiting its 

potential jurisdiction to that set out in section 5A of the probate code. We therefore overrule appellants=

second, fifth, and sixth issues. Furthermore, we hold that the trial court did not err in dismissing the case for 

lack of subject matter jurisdiction and thus overrule appellants= first issue.

Additional Discussion
17

As we noted initially, the parties take reversed positions in this appeal. The appellee, as 

plaintiff, supports the dismissal of his claims, and the appellants, the defendants below, want the action 

against them reinstated.

Without regard to the reasons given by the trial court for its action, however, or any legal 

justification for the trial court=s ruling, we believe that there is a less complicated basis for our decision of this 

appeal. We will uphold a trial court=s proper ruling even if based upon an erroneous reason. The events 

here are straightforward. The appellants filed a motion for summary judgment, which the trial court granted, 

ruling that the plaintiff take nothing on his claims. Appellee filed a motion for new trial and at the hearing 

moved to dismiss his own cause of action. Within what would constitute its plenary jurisdiction, the trial 

court set aside its judgment, which it was entitled to do, and granted appellee=s motion to dismiss his cause. 

 The result is that appellee=s cause was dismissed and no action remains pending against appellants.

Even if appellants disagree with the trial court=s reasoning, appellants have not demonstrated 

that the trial court erred in taking the action it did. For these reasons, as well, we affirm the trial court=s 

order of dismissal.

CONCLUSION

We conclude that appellants have not shown that the trial court wrongly dismissed the case 

for lack of subject matter jurisdiction because the matter in controversy exceeded $100,000 and because 

the independent executor of Frank Smith=s estate was never properly joined as a party so as to invoke the 

trial court=s probate jurisdiction. For these reasons and the further reasons stated above, we overrule all of 

appellants= issues, and we affirm the judgment of the trial court.
18

__________________________________________

Marilyn Aboussie, Justice

Before Justices Patterson, Puryear and Aboussie*

Justice Patterson concurs in the judgment only.

Affirmed

Filed: January 30, 2003

* Before Marilyn Aboussie, Chief Justice (retired), Third Court of Appeals, sitting by assignment. See

Tex. Gov=t Code Ann. ' 74.003(b) (West 1998).