Appellees Brief in 12-20164

Case: 12-20164 Document: 00511922758 Page: 1 Date Filed: 07/16/2012
NO. 12-20164
In the
United States Court of Appeals
for the Fifth Circuit
________________
CANDACE LOUISE CURTIS
Plaintiff-Appellant,
V.
ANITA KAY BRUNSTING AND AMY RUTH BRUNSTING
Defendants-Appellees.
________________________________________________________________
On Appeal From the United States District Court for the
Southern District of Texas, Houston Division

________________________________________________________________
BRIEF OF DEFENDANTS-APPELLEES
ANITA KAY BRUNSTING AND AMY RUTH BRUNSTING
GEORGE W. VIE III

MILLS SHIRLEY L.L.P.
1021 Main Street, Suite 1950
Houston, Texas 77002
(713) 225-0547
Fax (713) 225-0844
gvie@millsshirley.com
ATTORNEYS FOR DEFENDANTS-APPELLEES
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CERTIFICATE OF INTERESTED PERSONS
Required By Local Rule 28.2.1
The undersigned counsel of record certifies the following listed persons
have an interest in the outcome of this case. Judges of this Court may
consider possible disqualification or recusal from this certification.
Candace Louis Curtis Pro Se Plaintiff-Appellant

1215 Ulfinian Way
Martinez, California 94553
Anita Kay Brunsting Defendants-Appellees

Amy Ruth Brunsting
George W. Vie III Attorneys for Defendants-Appellees

Mills Shirley L.L.P.
By: /s/ George W. Vie III

George W. Vie III
i
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RECOMMENDATION ON ORAL ARGUMENT
The issues presented in this appeal are sufficiently discussed in the
briefing. Additionally, the record is not complicated. For these reasons,
Appellees suggest oral argument is not necessary for the Court’s decisional
process.
ii
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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS ....................................................... i
RECOMMENDATION ON ORAL ARGUMENT .............................................. ii
TABLE OF CONTENTS ..................................................................................... iii
LIST OF AUTHORITIES .......................................................................................v
STATEMENT OF THE CASE .............................................................................. 1
1. Statement of Facts. ......................................................................................... 2
2. Course of proceedings and disposition in the court below. ............................ 3
SUMMARY OF THE ARGUMENT..................................................................... 6
ARGUMENT AND AUTHORITIES .................................................................... 8
1. The applicable standard of review. ................................................................ 8
2. The district court correctly determined that the probate exception to

jurisdiction applied in this case. ......................................................................... 9
A. The nature of the relief sought is persuasive as to the applicability of the

probate exception. ....................................................................................... 10
B. If the wills have since been probated, that is further reason to apply the
probate exception. ....................................................................................... 11
C. Curtis had admitted the probate exception applied, at least in part. ........ 14
D. Trusts, like wills, can implicate the probate exception. ........................... 17
E. Conclusion............................................................................................... 18
3. The district court did not deprive Curtis of due process by determining it
lacked jurisdiction over the subject and the parties. ......................................... 19
iii
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CONCLUSION AND PRAYER .......................................................................... 22
CERTIFICATE OF SERVICE .............................................................................. 22
CERTIFICATE OF COMPLIANCE .................................................................... 23
iv
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LIST OF AUTHORITIES
Cases
Ashcroft v. Iqbal,
556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) ...................... 14
Blakeney v. Blakeney,
664 F.2d 433 (5th Cir. 1981) ................................................................. 12
Breaux v. Dilsaver,
254 F.3d 533 (5th Cir. 2001) ..................................................... 10, 11, 12
Dresser v. Meba Med. & Benefits Plan,
628 F.3d 705 (5th Cir. 2010) ................................................................... 8
Evans v. Pearson Enterprises, Inc.,
434 F.3d 839 (6th Cir. 2006) ................................................................. 18
Georges v. Glick,
856 F.2d 971 (7th Cir. 1988) ........................................................... 17, 18
Horn v. Vaughan,
11-60024, 2012 WL 1192101 (5th Cir. Apr. 9, 2012) ........................... 14
Jones v. Sch. Bd. of Bossier Parish,
51 F.3d 1045 (5th Cir. 1995) ................................................................... 1
Krim v. pcOrder.com, Inc.,
402 F.3d 489 (5th Cir. 2005) ................................................................... 8
Lepard v. NBD Bank, a Div. of Bank One,
384 F.3d 232 (6th Cir. 2004) ........................................................... 16, 20
LRC Technologies, LLC v. McKee,
CIV.A. 11-1011, 2011 WL 4007389 (E.D. La. Sept. 8, 2011) ................ 12
Markham v. Allen,
326 U.S. 490, 66 S.Ct. 296, 90 L.Ed. 256 (1946) ..................................... 9
Marshall v. Marshall,
547 U.S. 293, 126 S.Ct. 1735, 164 L.Ed.2d 480 (2006) ........................... 9
6 of 31
McDonal v. Abbott Labs.,

408 F.3d 177 (5th Cir. 2005) .................................................................. 9
Ruhgras AG v. Marathon Oil Co.,
526 U.S. 574, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) .......................... 9
Storm v. Storm,
328 F.3d 941 (7th Cir. 2003) .......................................................... 12, 18
Surgick v. Cirella,
CIV. 09-3807 NLH/KMW, 2012 WL 1495422 at * 3 (D.N.J. Apr. 27,
2012) ....................................................................................................... 13
United States v. Flores,
887 F.2d 543 (5th Cir. 1989) ................................................................... 1
Wisecarver v. Moore,
489 F.3d 747 (6th Cir. 2007) ................................................................. 17
Zernial v. United States,
714 F.2d 431 (5th Cir. 1983) ................................................................. 21
Rules
FED. R. CIV. P. 12(h)(3) ............................................................................... 13
vi
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TO THE HONORABLE FIFTH CIRCUIT COURT OF APPEALS:
Appellees Anita and Amy Brunsting file this opening brief and request
the Court affirm the Order of Dismissal entered by the district court.
STATEMENT OF THE CASE
Anita and Amy Brunsting object to the “Notice of Correlative Action
and Newly Disclosed Evidence” section of Appellant Curtis’s Brief.1
Although this Court liberally construes briefs filed by pro se litigants, it still
requires them to comply with the Federal Rules of Appellate Procedure and
the Court’s local rules.2 The Court “will not ordinarily enlarge the record on
appeal to include material not before the district court.”3 To the extent that
Curtis references documents she has received after judgment as “newly
discovered evidence,” these are not before the Court and should not have
any bearing on the issues presented.
1
Appellant’s Brief at ii-iii.
2
Jones v. Sch. Bd. of Bossier Parish, 51 F.3d 1045 (5th Cir.1995).
3
Id., citing United States v. Flores, 887 F.2d 543, 546 (5th Cir. 1989).
1
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1. STATEMENT OF FACTS.
Curtis filed a complaint based on diversity of jurisdiction against Anita
and Amy Brunsting.4 She alleged that the Brunstings were acting as co-
trustees of a family trust and, acting as co-trustees or successor trustees, they
had failed to provide accurate and timely accounting to the beneficiaries; had
not provided documents relating to the administration of the trust; may have
improperly accepted “gifts”; and otherwise breached their fiduciary
obligations.5 Curtis included claims of extrinsic fraud, intrinsic fraud, and
intentional infliction of emotional distress all arising out of the trust
administration.6 She also sought a temporary restraining order against
“wasting the estate,”7 and an accounting of trust property and assets.8 She
attached a variety of documents and emails, including a written demand for
4
USCA5 5.
5
USCA5 7-8.
6
USCA5 8, 9, 11.
7
USCA5 15.
8
USCA5 16-17.
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wills, trusts, and death certificates.9 Her proposed injunctive order referenced
an “asset freeze” of any property belonging to the Brunsting Family Living
Trust, and surrender of the property to a receiver appointed by the district
court.10 She later filed a lis pendens related to property in Texas and Iowa.11
The Brunstings filed an emergency motion to remove the lis pendens,12 and
noted it was subject to a motion under Rule 12 that would be filed as to the
probate exception to jurisdiction.13
2. COURSE OF PROCEEDINGS AND DISPOSITION IN THE COURT BELOW.
The district court took notice of the request for a temporary
restraining order and injunction and denied the relief, noting that “it appears
the Court lacks subject matter jurisdiction over the claim(s) asserted.”14
9
USCA5 67.
10
USCA5 413-15.
11
USCA5 242-25.
12
USCA5 434.
13
USCA5 434.
14
USCA5 431.
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The court thereafter ordered that a telephone scheduling conference be
conducted in connection with the lis pendens issue.15 Curtis appeared pro se
and the Brunstings were represented by counsel. Following the telephone
scheduling conference, the district court entered an order indicating that the
court would dismiss Curtis’s suit for lack of jurisdiction.16 The court then
entered a sua sponte order of dismissal, noting it followed “a phone
conference and discussion with the plaintiff and counsel for defendants.”17
Specifically, the district court determined that it lacked jurisdiction
over the parties and the subject matter of the litigation. The court noted that
the facts before it indicated that Curtis, the Brunstings, and other siblings
were beneficiaries of the Brunsting Family Trust and that according to the
pleadings and the discussions during a telephone conference, Curtis’s mother
and father had establish the trust and thereafter died. The court added that
the disputes between the parties arose on the administration of the family
15
USCA5 479.
16
USCA5 480.
17
USCA5 481.
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trust.18 The court noted that Curtis’s pleadings indicated that she was suing
the Brunstings individually and as co-trustees for the trust because they had
allegedly failed to meet their obligations under the trust powers.
The court added that Curtis, in response to the Brunstings’ lis pendens
motion, had stated that the res of the lawsuit was the trust; but the
controversy was not a dispute about the trust but a personal one against the
co-trustees. The court also noted that Curtis had admitted that the probate
exception to federal jurisdiction applied (but only to avoid the court
removing her lis pendens filing). In conclusion, the district court held that
Curtis’s suit was a dispute over the distribution of the family trust and
therefore the court lacked jurisdiction.19 Curtis then filed her notice of
appeal.20
18
USCA5 481.
19
USCA5 482.
20
USCA5 493.
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SUMMARY OF THE ARGUMENT
The district court correctly concluded that even with complete diversity
present in this case, the probate exception to federal jurisdiction prohibited it
from granting Curtis the relief that she sought. This included her request for
injunctive relief, declaratory relief, for a receiver appointed over the assets of
the trust, an accounting, and damages.
To the extent Curtis sought injunctive relief and assumption of
jurisdiction over all of the assets of the trust through appointment of a
receiver, any order entered by the district court would have amounted to an
attempt by it to administer the trusts at issue. Although Curtis suggests that
the probate exception should only apply to wills and not trust assets or trust
instruments, federal courts have applied the probate exception to trust
litigation, especially when the trust instrument serves as a will substitute.
The policy considerations underlying the court-made probate
exception include judicial economy and the desire to minimize interference
with state court proceedings. Remanding or dismissing some claims under
the probate exception, but retaining others, would not promote judicial
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efficiency or minimize interference. Rather it would increase the risk of
piecemeal resolution of the matters at issue.
On appeal, Curtis advises the Court that the wills of both of her
parents, which are related to the trust or pour over into the trusts,21 have
since been probated in Texas state court. This is a further reason for the
Court to conclude that the probate exception applies as a jurisdictional
limitation. The presence of the Texas probate proceedings increase the
likelihood that federal court relief would interfere with the administration of
one or more estates or involve the federal court in an assumption of
jurisdiction over property that is now in the custody of the probate court.
Finally, the district court’s sua sponte determination that it lacked
subject matter jurisdiction was consistent with its duty to raise the issue. The
district court could determine that it lacked subject matter jurisdiction
whether or not it had been raised by any party. The court first entered an
order denying injunctive relief in which it expressed its jurisdictional
concerns. It then scheduled a telephone conference in which the jurisdictional
21
USCA5 28; 281; 283; 294.
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issue was further discussed, and in which Curtis participated. Finally, Curtis
also filed a responsive document considered by the district court before it
ruled, in which Curtis addressed at length her position on whether the
probate exception was applicable to her case. Therefore no due process
concerns are implicated by the court’s dismissal order, and it should be
affirmed.
ARGUMENT AND AUTHORITIES
1. THE APPLICABLE STANDARD OF REVIEW.
This Court reviews de novo the district court’s dismissal for lack of
subject matter jurisdiction.22 “A case is properly dismissed for lack of subject
matter jurisdiction when the court lacks the statutory or constitutional
power to adjudicate the case. In considering a challenge to subject matter
jurisdiction, the district court is ‘free to weigh the evidence and resolve
factual disputes in order to satisfy itself that it has the power to hear the
case.’”23 This Court reviews any jurisdictional findings of fact for clear error.
22
Dresser v. Meba Med. & Benefits Plan, 628 F.3d 705, 708 (5th Cir. 2010).
23
Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005).
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2. THE DISTRICT COURT CORRECTLY DETERMINED THAT THE PROBATE

EXCEPTION TO JURISDICTION APPLIED IN THIS CASE.
A federal court has an independent duty, at any level of the
proceedings, to determine whether it properly has subject matter jurisdiction
over a suit.24 Ordinarily, federal jurisdiction exists over lawsuits based on
complete diversity of citizenship; but for historical reasons, a federal court
“has no jurisdiction to probate a will or administer an estate.”25 This
probate exception is a judicially created doctrine.26
In three issues, Curtis suggests the probate exception does not apply to
civil tort claims, or does not apply when there is no probate, or should not
apply to trust related controversies.27 These issues are discussed together.
24
See Ruhgras AG v. Marathon Oil Co., 526 U.S. 574, 583, 119 S.Ct. 1563, 143
L.Ed.2d 760 (1999); McDonal v. Abbott Labs., 408 F.3d 177, 182 n. 5 (5th Cir.
2005).
25
Markham v. Allen, 326 U.S. 490, 494, 66 S.Ct. 296, 90 L.Ed. 256 (1946).
26
Marshall v. Marshall, 547 U.S. 293, 298, 126 S.Ct. 1735, 164 L.Ed.2d 480
(2006).
27
See Appellant’s Brief at 2.
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A. The nature of the relief sought is persuasive as to the applicability of

the probate exception.
In her brief, Curtis cites Breaux v. Dilsaver 28 as holding that civil tort
claims against administrators in their individual capacity do not fall within
the probate exception.29 However she explains that the Breaux v. Dilsaver
court had reasoned that the plaintiff’s claims there did not seek to recover
property from the estate and did not require that a federal court assume
control over state property or interfere with state probate proceedings. The
Breaux v. Dilsaver court noted a number of other controlling factors: the
claims were against the defendant, not against the estate; the estate was
closed and would not be reopened; and no judgment would be satisfied with
property from the closed estate.
Here, however, Curtis had actually requested that the district court
appoint a receiver and assume control over the assets of the living trust. She
claimed that trust assets has been misappropriated.30 She requested a freezing
28
254 F.3d 533, 536-37 (5th Cir. 2001).
29
See Appellant’s Brief at 13.
30
USCA5 16-17.
10
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of the trust assets and an injunction preventing distribution.31 Federal courts
in equity may have jurisdiction over certain matters, “so long as the federal
court does not interfere with the probate proceedings or assume general
jurisdiction of the probate or control of the property in custody of the state
court.”32 Curtis did request the court assume control over the trust property.
Thus, the district court correctly concluded that the legal and equitable relief
sought triggered the probate exception.
B. If the wills have since been probated, that is further reason to apply
the probate exception.
Further, Curtis advises this Court in her brief that the wills of her
parents have been filed for probate in Texas state court.33 Thus a second
question is now presented: Whether Curtis’s claims would pose additional
threats to interference with property in possession of a state court.
31
USCA5 414.
32
Breaux v. Dilsaver, 254 F.3d 533, 536 (5th Cir. 2001).
33
See Appellant’s Brief at ii. In her brief, Curtis states that “[a]t the time Curtis
filed her complaint in the federal court, neither Decedent’s will had been filed, and
no probate or other proceeding had been commenced in any court.” Appellant’s
Brief at 4.
11
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Under the probate exception, a federal court is precluded from
endeavoring to dispose of property that is in the custody of a probate court.
The probate exception also discourages a federal court from interfering with
state probate proceedings. To decide if a federal court would interfere with
state court probate proceedings, the court must determine whether the
plaintiff’s claim “implicates the validity of the probate proceedings or
whether the plaintiff is merely seeking adjudication of a claim between the
parties.”34
Suits against personal representatives in their individual capacities are
beyond federal jurisdiction “if it requires a premature accounting of an estate
still in probate.”35 Thus, the probate exception applies if there are wills now
admitted to probate. And as the court noted in Storm v. Storm,36 after
holding the probate exception applied to litigation concerning an inter vivo
trust,
34
LRC Technologies, LLC v. McKee, CIV.A. 11-1011, 2011 WL 4007389 (E.D.
La. Sept. 8, 2011) citing Blakeney v. Blakeney, 664 F.2d 433, 434 (5th Cir. 1981).
35
Breaux v. Dilsaver, 254 F.3d 533, 537 (5th Cir. 2001).
36
328 F.3d 941, 946 (7th Cir. 2003).
12
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We simply note that if this will is admitted to probate at some

future time, the claim raised [] in this lawsuit would more
appropriately be included as part of those proceedings, thus
implicating both the judicial economy and the unnecessary
interference policy rationales [of the probate exception].37
Further, Curtis’s complaint requested an accounting, injunctive, and
declaratory relief as appropriate.38 To the extent that Curtis would seek
declaratory relief as to the rights under the trust, or the value of trust assets,
or the appropriation or alleged misappropriation of trust assets, that would
essentially amount to an attempt to have the federal court administer the
trust (and the administration of the estates of her parents).39
Any jurisdictional inquiry is not simply limited to the day on which
Curtis’s complaint was filed. Rule 12(h) requires dismissal if the district
court determines “at any time” that it lacks subject-matter jurisdiction.40
And the United States Supreme Court has held subject-matter jurisdiction
37
Id. at 945 n. 2.
38
USCA5 15, 16.
39
See Surgick v. Cirella, CIV. 09-3807 NLH/KMW, 2012 WL 1495422 at * 3
(D.N.J. Apr. 27, 2012).
40
FED. R. CIV. P. 12(h)(3).
13
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cannot be forfeited or waived and should be considered at the appellate level
when fairly in doubt.41 Also, this Court always has the power to affirm for
reasons other than those relied upon by the district court.42
C. Curtis had admitted the probate exception applied, at least in part.
Curtis also argued below that the district court had jurisdiction to hear
her civil claims for damages, but did not have jurisdiction to reach the lis
pendens “in the custody of the Harris County Recorder,” specifically based
on the probate exception.43 Curtis has not relied on the Lepard v. NBD
Bank44 decision in her appellate briefing in this Court, as she did in the court
below. Nor does she acknowledge that she had admitted the application of
the probate exception to part of her suit.
41
Ashcroft v. Iqbal, 556 U.S. 662, 671, 129 S. Ct. 1937, 1945, 173 L. Ed. 2d 868
(2009).
42
Horn v. Vaughan, 11-60024, 2012 WL 1192101 (5th Cir. Apr. 9, 2012).
43
USCA5 489.
44
384 F. 3d 232, 237 (6th Cir. 2004).
14
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Curtis had claimed the Houston property was part of the subject of her
suit.45 The property would likely be part of the administration of the estates
now filed or the property of the Family Trust. Indeed Amy Brunsting’s
affidavit in connection with the lis pendens motion asserted the real estate
was part of the Brunsting Family Trust, and would be sold under trust
powers.46 The Brunstings’ attorney’s motion for removal of the lis pendens
claimed the property was titled in the name of the Trust and was part of the
trust estate being liquidated for distribution to heirs.47
Perhaps Curtis had cited Lepard v. NBD Bank for the proposition that
exclusive jurisdiction of the lis pendens issue rested in Texas state courts. But
now she argues in her brief that Texas district courts are granted exclusive
jurisdiction of the administration of trusts, citing the Texas Property Code.48
The Lepard court found that fact dispositive in its case, applying Michigan
45
USCA5 425.
46
USCA5 437-38.
47
USCA5 434-35.
48
Appellant’s Brief at 9.
15
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law.49 But the Lepard court had also noted that claims for breach of
fiduciary duties and abuses of power were “connected inextricably with the
probate of the estates and other issues ancillary to probate.”50 The court
observed that
“[t]he [probate] exception applies both to purely probate

matters, and to matters ancillary to probate in the practical sense
that allowing it [the case] to be maintained in federal court
would impair the policies served by the probate exception to
diversity jurisdiction.”51
As courts have explained, “[t]he probate exception is a practical
doctrine designed to promote legal certainty and judicial economy by
providing a single forum of litigation, and to tap the expertise of probate
judges by conferring exclusive jurisdiction on the probate court.”52 Splitting
of claims between state court and federal court, meanwhile, would not
49
See Lepard v. NBD Bank, a Div. of Bank One, 384 F.3d 232, 237 (6th Cir.
2004) (noting claims regarding the administration of a trust fall squarely within the
exclusive jurisdiction of the Michigan probate courts). See also Appellant’s Brief at
8-9.
50
Lepard v. NBD Bank, a Div. of Bank One, 384 F.3d at 237.
51
Id.
52
Id. at 237.
16
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promote efficiencies or judicial economy. Thus, having determined some
claims would entangle the federal court in state court trust or probate
administration, it would be prudent to dismiss the entire case rather than
carve out a single state law tort.53
In summary, “[o]nce a suit can be characterized as not involving ‘pure
probate,’ the inquiry . . . becomes whether resolution of the suit by the
federal court will result in ‘interference’ with the state probate proceedings or
the assumption of general probate jurisdiction.”54
D. Trusts, like wills, can implicate the probate exception.
This case now involves “survivor’s trusts” and concerns the rights of
heirs to the estates of the Brunstings’ parents.55 In her third issue on appeal,
Curtis has asked whether the probate exception applies to trust-related
controversies. It does.
53
Compare with Wisecarver v. Moore, 489 F.3d 747 (6th Cir. 2007), cited by
Curtis at Appellant’s Brief at 18-21 (holding some claims implicated the probate
exception, but retaining others).
54
Georges v. Glick, 856 F.2d 971, 974 (7th Cir. 1988).
55
USCA5 18.
17
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The Sixth Circuit in Evans v. Pearson Enterprises, Inc.,56 noted that
“federal courts have properly applied the probate exception to claims
concerning trusts that act as will substitutes . . . .”The court explained that
[r]efusing to hear cases regarding will substitutes is consistent

with Markham [ v. Allen] because adjudication concerning will
substitutes would frequently interfere with probate
administration.57
Federal courts have additionally acknowledged that state court expertise is
best with regard “to the transfer of property at death.”58 Therefore, trusts
that involve will substitutes, and even inter vivos trusts, may be subject to
the probate exception. Courts reach this holding by applying a practical
approach that reinforces the policy goals underlying the probate exception.59
E. Conclusion.
The district court in this case correctly determined that in light of the
complaint Curtis had filed, the probate exception counseled against an
56
434 F.3d 839, 849 (6th Cir. 2006).
57
Id.
58
Georges v. Glick, 856 F.2d 971, 973-74 (7th Cir. 1988).
59
See Storm v. Storm, 328 F.3d 941, 944 (7th Cir. 2003).
18
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exercise of federal diversity jurisdiction. With the additional knowledge that
the wills of the parties’ parents have now been filed in state court, the
probate exception is made even more appropriate.60 This Court should
overrule Curtis’s first three issues and affirm the Order of Dismissal.
3. THE DISTRICT COURT DID NOT DEPRIVE CURTIS OF DUE PROCESS BY

DETERMINING IT LACKED JURISDICTION OVER THE SUBJECT AND THE
PARTIES.
In her fourth and final issue on appeal, Curtis claims the district
court’s sua sponte dismissal order deprived of her notice and an opportunity
to be heard.61 But the record shows that Curtis was heard on the issue of
subject matter jurisdiction during the telephone conference noticed by the
court.62 This hearing followed the filing of the Brunstings’ Emergency
Motion for Removal of Lis Pendens, which was made subject to the
contention that the court lacked subject matter jurisdiction.63 And in denying
60
The claims related to unaccounted for assets and gifts to a successor trustee,
USCA5 16, would arguably seeks disposal or transfer of property now within the
state court’s custody.
61
Appellant’s Brief at 7, 22-23.
62
USCA5 480, 481.
63
USCA5 434.
19
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the injunctive relief Curtis had requested, the court had already noted its
concern that it lacked subject matter jurisdiction over Curtis’s claims.
In light of these warnings, Curtis had filed an “Answer to Defendants
[sic] Motion for Lis Pendens” 64 which discussed and argued the applicability
of the probate exception.65 The record reflects that the district court had
reviewed Curtis’s filing (because the court cited it in the dismissal Order) 66
and acknowledged Curtis’s admission that the probate exception applied:
The Court is of the opinion that the Probate Exception to federal

jurisdiction applies. Marshall, 126 S. Ct. at 1748. The plaintiff
admits this fact, yet only to avoid the Court removing her lis
pendens filing. See [Response Doc. No. ___; citing Lepard v.
NBD Bank, 384 F. 3d 232, 237 (6th Cir. 2004)].
Specifically, the court noted Curtis had stated in her Answer to Defendants
[sic] Motion for Lis Pendens that the district court
64
USCA5 438-90.
65
USCA5 485-89.
66
USCA5 482, citing Curtis’s response and its reference to Lepard v. NBD Bank, a
Div. of Bank One, 384 F.3d 232, 237 (6th Cir. 2004). See also USCA5 485-86,
citing Lepard v. NBD Bank, 384 F.3d 232, 237 (6th Cir. 2004).
20
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is foreclosed from reaching the lis pendens under the probate

exception to diversity jurisdiction as explained below.67
Thus, Curtis had not only been heard on the issue of the probate exception,
but she had argued that the exception was applicable to part of the relief the
Brunstings had requested. She had notice, and was heard, on the probate
exception.
“Sua sponte dismissal for lack of subject-matter jurisdiction is, of
course, proper at any stage of the proceedings.”68 Jurisdictional matters are
to be decided by the court, and can be raised by a party or the court.
Whether the Brunstings had filed a motion to dismiss for lack of jurisdiction
was no impediment to the district court’s ruling.69 Because Curtis was heard
on the issue of the probate exception, there was no due process deprivation
triggered by the court’s ruling. Accordingly, the fourth issue on appeal
should be overruled.
67
USCA5 485.
68
Zernial v. United States, 714 F.2d 431, 433-34 (5th Cir. 1983).
69
Compare with Appellant’s Brief at 23, noting no Rule 12(b) motion had been
filed.
21
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CONCLUSION AND PRAYER
For the reasons stated in this brief, Appellees Anita and Amy Brunsting
request the Court affirm the Order of Dismissal of the district court, and
grant all other proper relief.
Respectfully submitted,
MILLS SHIRLEY L.L.P.

George W. Vie III
State Bar No. 20579310
gvie@millsshirley.com
CERTIFICATE OF SERVICE
The undersigned hereby certifies that service on Appellant pro se will

be accomplished by regular mail on July 16, 2012 to the following:
Candace Louis Curtis Pro Se Plaintiff-Appellant

1215 Ulfinian Way
Martinez, California 94553
/s/ George W. Vie III

George W. Vie III
22
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CERTIFICATE OF COMPLIANCE
Pursuant to 5th Cir. R. 32.a.7(C), the undersigned certifies this brief

complies with the type-volume limitations of 5th Cir. R. 32.a.7(B).
1. INCLUSIVE OF THE EXEMPTED PORTIONS IN 5th Cir. R.

32.a.7(B)(iii), THE BRIEF CONTAINS (select one):
A. 4471 words
B. _____________ Lines of text in monospaced typeface.
2. THE BRIEF HAS BEEN PREPARED (select one):
A. in justified typeface using:
Word 2007
Sabon Linotype 14 font for text and 13 font for footnote text and
references
3. THE UNDERSIGNED UNDERSTANDS A MATERIAL

MISREPRESENTATION IN COMPLETING THIS CERTIFICATE, OR
CIRCUMVENTION OF THE TYPE- VOLUME LIMITS IN 5th Cir. R.
32.2.7, MAY RESULT IN THE COURT’S STRIKING THE BRIEF AND
IMPOSING SANCTIONS AGAINST THE PERSON SIGNING THE BRIEF.

George W. Vie III
23
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United States Court of Appeals

FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE TEL. 504-310-7700
CLERK 600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130
July 20, 2012
Mr. Bernard Lilse Mathews III

Green & Mathews, L.L.P.
14550 Torrey Chase Boulevard
Suite 245
Houston, TX 77014
Mr. George William Vie III

Mills Shirley, L.L.P.
1021 Main Street
Suite 1950
Houston, TX 77002-0000
No. 12-20164, Candace Curtis v. Anita Brunsting, et al

USDC No. 4:12-CV-592
The following pertains to your brief electronically filed on July

16, 2012.
You must submit the seven paper copies of your brief under red
cover as required by 5TH CIR. R. 31.1 within 5 days of the date
of this notice pursuant to 5th Cir. ECF Filing Standard E.1.
Sincerely,
LYLE W. CAYCE, Clerk
By:_________________________
Linda B. Miles, Deputy Clerk
504-310-7709
cc: Ms. Candace Louise Curtis
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Case: 12-20164 Document: 00511922758 Page: 1 Date Filed: 07/16/2012

CANDACE LOUISE CURTIS

ANITA KAY BRUNSTING AND AMY RUTH BRUNSTING

On Appeal From the United States District Court for the

Southern District of Texas, Houston Division

ANITA KAY BRUNSTING AND AMY RUTH BRUNSTING

GEORGE W. VIE III

ATTORNEYS FOR DEFENDANTS-APPELLEES

CERTIFICATE OF INTERESTED PERSONS

Required By Local Rule 28.2.1

The undersigned counsel of record certifies the following listed persons

consider possible disqualification or recusal from this certification.

Candace Louis Curtis Pro Se Plaintiff-Appellant

Anita Kay Brunsting Defendants-Appellees

George W. Vie III Attorneys for Defendants-Appellees

By: /s/ George W. Vie III

ATTORNEYS FOR DEFENDANTS-APPELLEES

RECOMMENDATION ON ORAL ARGUMENT

The issues presented in this appeal are sufficiently discussed in the

briefing. Additionally, the record is not complicated. For these reasons,

CERTIFICATE OF INTERESTED PERSONS ....................................................... i

RECOMMENDATION ON ORAL ARGUMENT .............................................. ii

TABLE OF CONTENTS ..................................................................................... iii

LIST OF AUTHORITIES .......................................................................................v

STATEMENT OF THE CASE .............................................................................. 1

1. Statement of Facts. ......................................................................................... 2

2. Course of proceedings and disposition in the court below. ............................ 3

SUMMARY OF THE ARGUMENT..................................................................... 6

ARGUMENT AND AUTHORITIES .................................................................... 8

1. The applicable standard of review. ................................................................ 8

2. The district court correctly determined that the probate exception to

A. The nature of the relief sought is persuasive as to the applicability of the

D. Trusts, like wills, can implicate the probate exception. ........................... 17

CONCLUSION AND PRAYER .......................................................................... 22

CERTIFICATE OF SERVICE .............................................................................. 22

CERTIFICATE OF COMPLIANCE .................................................................... 23

McDonal v. Abbott Labs.,

TO THE HONORABLE FIFTH CIRCUIT COURT OF APPEALS:

STATEMENT OF THE CASE

Anita and Amy Brunsting object to the “Notice of Correlative Action

and Newly Disclosed Evidence” section of Appellant Curtis’s Brief.1

Curtis references documents she has received after judgment as “newly

any bearing on the issues presented.

Curtis filed a complaint based on diversity of jurisdiction against Anita

trustees of a family trust and, acting as co-trustees or successor trustees, they

improperly accepted “gifts”; and otherwise breached their fiduciary

obligations.5 Curtis included claims of extrinsic fraud, intrinsic fraud, and

intentional infliction of emotional distress all arising out of the trust

administration.6 She also sought a temporary restraining order against

attached a variety of documents and emails, including a written demand for

an “asset freeze” of any property belonging to the Brunsting Family Living

Trust, and surrender of the property to a receiver appointed by the district

probate exception to jurisdiction.13

2. COURSE OF PROCEEDINGS AND DISPOSITION IN THE COURT BELOW.

The district court took notice of the request for a temporary

The court thereafter ordered that a telephone scheduling conference be

and the Brunstings were represented by counsel. Following the telephone

entered a sua sponte order of dismissal, noting it followed “a phone

Specifically, the district court determined that it lacked jurisdiction