In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00679-CV
RELIANT ENERGY, INCORPORATED, Appellant
V.
JANNETE GONZALEZ, AS DEPENDENT ADMINISTRATOR OF THE ESTATE OF GUADALUPE GONZALEZ, JR., DECEASED, Appellee
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Cause No. 2002-21820
D I S S E N T I N G O P I N I O N
I dissent. In my opinion, the trial court properly denied the application for an anti-suit injunction.
Dominant Jurisdiction
As a general rule, if two lawsuits concerning the same controversy and parties are pending in courts of coordinate jurisdiction, the court in which suit was "first filed" acquires "dominant jurisdiction" to the exclusion of the other court. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988); Clawson v. Millard, 934 S.W.2d 899, 900 (Tex. App.--Houston [1st Dist.] 1996, orig. proceeding).
In this case, both the Harris County district court and the Hidalgo County probate court had subject matter jurisdiction over Gonzalez's wrongful death claim. Tovias v. Wildwood Properties Partnership, L.P., 67 S.W.3d 527 (Tex. App.--Houston [1st Dist.] 2002, no pet.); see also Tex. Prob. Code Ann. § 5A (Vernon Supp. 2002) ( "statutory probate court has concurrent jurisdiction with the district court in all actions . . . by or against a person in the person's capacity as a personal representative. . ."). Therefore, because Gonzalez filed her lawsuit in Hidalgo County first, that court acquired dominant jurisdiction over the case. Wyatt, 760 S.W.2d at 248.
However, there are three exceptions to the "first filed" rule, one of which Reliant claims applies to this case. Under the first exception, the Hidalgo County court will not have dominant jurisdiction if Gonzalez engaged in inequitable conduct that estops her from asserting prior active jurisdiction. See Wyatt, 760 S.W.2d at 248; Clawson, 934 S.W.2d at 901. The type of misconduct necessary to invoke this exception "must in some manner involve or circumvent the choice of forum." Sweezy Constr., Inc. v. Murray, 915 S.W.2d 527, 532 (Tex. App.--Corpus Christi 1995, orig. proceeding).
Reliant points out that in 1995, the Texas Legislature made substantial amendments to the venue provisions of the Civil Practice & Remedies Code, and the most important of these changes was that the determination of proper venue for an action by or against a personal representative for personal injury, death, or property damage is no longer made under the Probate Code, but rather under section 15.007 of the Civil Practice & Remedies Code. (1) Tex. Civ. Prac. & Rem. Code Ann. § 15.007 (Vernon Supp. 2002). However, in 1999 the legislature amended section 5B of the Probate Code (2) and apparently did not perceive a conflict between venue statute section 15.007 of the Civil Practice and Remedies Code and section 5B of the Probate Code. If the Legislature had wanted to except personal injury, death, or property damage causes of action from the authority given to a probate court to transfer a case from a district court to a probate court, it could have done so, but it did not.
Reliant claims that Gonzalez is trying to "circumvent the choice of forum" by filing identical lawsuits, in different venues, and then utilizing section 5B of the probate code to facilitate "forum shopping." Reliant claims that Gonzalez initially filed suit in the wrong venue, Hidalgo County, and is now trying to "launder" her venue error by filing suit in Harris County, a county of proper venue, and then transferring the case back to Hidalgo County by requesting a 5B transfer motion.
However, any conflict between section 15.007 of the Civil Practice and Remedies Code and the venue statutes of the probate code would not affect a probate court from granting a 5B transfer, because section 5B is not a venue statute. Tex. Prob. Code Ann. § 5B (Vernon Supp. 2002). Several courts have noted that section 15.007 does not prevent transfers pursuant to section 5B of the Probate Code because that section of the Probate Code deals with jurisdiction, not venue. See In re J7S Inc., 979 S.W.2d 374, 378 (Tex. App.--Houston [14th Dist.] 1998, orig. proceeding) (noting that section 5A of the Probate Code is a jurisdictional statute), In re Ford Motor Co., 965 S.W.2d 571, 575 (Tex. App.--Houston [14th Dist.] 1997, orig. proceeding) (same); see also Henry v. LaGrone, 842 S.W.2d 324, 327 (Tex. App.--Amarillo 1992, orig. proceeding) (same).
Regardless of which court has dominant jurisdiction or where venue for this case is proper, section 5B of the Probate Code (3) expressly authorizes a statutory probate court, such as the Hidalgo County Probate Court, to transfer a suit pending in a district court, to itself, when that suit is one in which a personal representative of an estate is a party. Tex. Prob. Code Ann. § 5B (Vernon Supp. 2002); see also Greathouse v. McConnell, 982 S.W.2d 165, 171 (Tex. App.--Houston [1st Dist.] 1998, pet. denied).
Although venue for Gonzalez's wrongful death suit may have been appropriate only in Harris County, I would hold that the express transfer authority granted by section 5B applies notwithstanding the venue statutes. See In re Ramsey, 28 S.W.3d 58, 59-60 (Tex. App.--Texarkana 2000, no pet.); see also In re J7S Inc., 979 S.W.2d at 377-78, LaGrone, 842 S.W.2d at 327; Lanier v. Stem, 931 S.W.2d 1, 2-3 (Tex. App.--Waco 1996, orig. proceeding).
For example, in Henry v. LaGrone, the trustee of a trust for an incompetent adult filed a petition for declaratory relief in a district court, even though other matters with respect to the estate were ongoing in probate court. 842 S.W.2d at 325-26. After the probate court entered an order directing the district court to transfer the case, the district court refused to comply and issued a writ of prohibition. Id. Relators then sought a writ of mandamus against the district court judge for refusing to comply with the transfer order. Id. On appeal, the Amarillo Court of Appeals held that, even though venue was appropriate in the district court, section 5B of the Probate Code authorized the statutory probate court to transfer the suit notwithstanding any mandatory venue provisions. Id. at 327.
Similarly, in In re Ramsey, a claim was instituted in district court involving a partnership in which the decedent had been a partner. 28 S.W.3d 58, 59-60 (Tex. App.--Texarkana 2000, no pet. h.). Because the representative of the decedent's estate was named as a party to the suit, the probate court where the decedent's estate was being administered ordered that the partnership action should be transferred to the probate court for resolution. Id. After the district court refused to transfer the case, the representative of the decedent's estate sought a writ of mandamus to force the district court to transfer the suit. Id. On appeal, the Texarkana Court of Appeals held that, although venue of the partnership suit may have been appropriate where it was filed, "the express transfer authority granted by section 5B applies notwithstanding the venue statute" and, "when faced with the probate court's transfer order, the district court was required to transfer the suit." Id. at 61.
Thus, even assuming that the Harris County district court had dominant jurisdiction over the wrongful death case and that venue was proper only in Harris County, the Harris County district court would still be required to transfer the case back to Hidalgo County when faced with the 5B transfer order. Since 1983 when section 5B was added to the Probate Code, it appears to be clear that the intent of the Texas Legislature is to allow consolidation of all causes of action incident to an estate in the statutory probate court in order to promote efficient administration of estates and judicial economy. Id. at 63. By denying Reliant's request for an anti-suit injunction, I believe the district court was promoting that purpose and did not abuse its discretion.
Conclusion
I would affirm the order denying the application for an anti-suit injunction.
Jackson B. Smith, Jr. (4)
Justice
Panel consists of Justices Mirabal, Taft, and Smith.
Justice Mirabal dissented from the panel's decision to affirm the trial court's order.
En banc consideration was requested. Tex. R. App. P. 41.2(c).
A majority of the Court voted for en banc consideration of the panel's decision. See id.
The en banc Court consists of Justices Mirabal, Taft, Nuchia, Jennings, Radack, Keyes, Alcala, and Smith.
Justice Mirabal, writing for the majority of the en banc Court, joined by Justices Nuchia, Jennings, Radack, Keyes, and Alcala. See Tex. R. App. P. 47.5.
Justice Smith, joined by Justice Taft, dissenting from the judgment of the en banc Court. See id.
Chief Justice Schneider and Justice Hedges not participating. See id.
Publish. Tex. R. App. P. 47.4.
1. Section 15.007 states as follows:
Notwithstanding Sections 15.004, 15.005, and 15.031 of the Civil Practice and Remedies Code, to the extent that venue under this chapter for a suit by or against an executor, administrator, or guardian as such, for personal injury, death, or property damage conflicts with venue provisions under the Texas Probate Code, this chapter controls.
2. Act of May 20, 1999, 76th Leg., R.S., ch. 1431, § 1, sec. 5B, 1999 Gen. Laws 4876, 4876.
3.
Section 5B states:A judge of a statutory probate court, on the motion of a party to the action or on the motion of a person interested in an estate, may transfer to his court from a district . . . court a cause of action appertaining to or incident to an estate pending in the statutory probate court or a cause of action in which a personal representative of an estate pending in the statutory probate court is a party and may consolidate the transferred cause of action with the other proceedings in the statutory probate court relating to that estate.
4. The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.