ACCEPTED
12-15-00058-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
4/3/2015 5:01:03 PM
CATHY LUSK
CLERK
CAUSE NO. 12-15-00058-CV
FILED IN
IN THE 12th COURT OF APPEALS
TYLER, TEXAS
4/3/2015 5:01:03 PM
COURT OF APPEALS
CATHY S. LUSK
Clerk
FOR THE
TWELFTH COURT OF APPEALS DISTRICT
AT
TYLER, TEXAS.
IN RE JEANETTE B. DAVIDSON,
INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF
THE ESTATE OF GARY L. DAVIDSON, DECEASED,
Relators,
Original Proceeding from the County Court-at-Law
of Anderson County, Texas, Hon. Jeff Doran, Presiding.
RELATOR’S REPLY
to the Real Party in Interest’s
RESPONSE TO PETITION FOR WRIT OF MANDAMUS
Thomas R. McLeroy, Jr.
Bar No. 13766800
P. O. Box 668
Center, Texas 75935
(936) 598-2701
FAX (936) 598-6086
mcleroylaw@sbcglobal.net
ATTORNEY FOR RELATOR
TABLE OF CONTENTS
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page ii
INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page iii
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 1
(In Reply to the Response of
the Real Party in Interest). . . . . . . . . . . . . . . . . . . . . . . . . . . . page 1
REPLY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 2
(To Haynes Lack of Standing Argument,
Real Party in Interest’s Response to Petition for Mandamus,
pp. 3 - 5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 2
REPLY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 6
(To Haynes Appealable Order Argument,
Real Party in Interest’s Response to Petition for Mandamus,
pp. 5 - 6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 6
CONCLUSION AND PRAYER.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 8
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 9
APPENDIX.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page I
TAB 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page II
(Reporter’s Record
of proceedings before the court
on March 25, 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page II
TAB 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page XXIII
(Texas Probate Code § 3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page XXIII
TAB 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page XXX
(Black’s Law Dictionary - “Creditor”). . . . . . . . . . . . . . . . . . . . page XXX
page ii
INDEX OF AUTHORITIES
STATUTES
TEX. CIV. PRAC. & REM. CODE ANN., §15.002 (Vernon 2002) . . . . page 4
TEX. CIV. PRAC. & REM. CODE ANN., §15.031 (Vernon 2002). . . page 4, page 5
TEX. ESTATES CODE, §22.018. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 3
TEX. ESTATES CODE, §258.001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 5
TEX. ESTATES CODE, §33.102. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 7
RULES
TEX. R. APP. P., 9.4.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 9
TEX. R. CIV. P., 120a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 8
TEX. R. EVID. 201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 1
CASES
De Avala v. Mackie, 193 S.W.3d 575 (Tex. 2006). . . . . . . . . . . . . . . . . . . . page 6
Fernandez v. Bustamante, 305 S.W.3d 333 (Tex. App. –Houston [14th Dist.] 2010,
no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 7
In re Bowie, 2008 WL 4821617 (Tex. App. –Beaumont, 2008, no pet.)(mem. op.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 3
In re Graham, 251 S.W.3d 844 (Tex. App. –Austin, 2008, orig. proc.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 7
In re Hudson, 325 S.W.3d 811 (Tex. App. –Dallas, 2010, orig. proc.). . . page 8
In re Ramsey, 28 S.W.3d 58 (Tex. App. –Texarkana, 2000, orig. proc.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 3
Jarvis v. Field, 327 S.W.3d 918 (Tex. App. –Corpus Christi, 2010, no pet.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 8
page iii
Olson v. Tromba, 615 S.W.2d 875 (Tex. Civ. App. --Houston[1st Dist.] 1981, writ
dismss’d.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 6
REPEALED STATUTES
TEX. PROB. CODE ANN., §3(r) (Vernon Supp. 2013).. . . . . . . . . . . . . . . . . page 3
TEX. PROB. CODE ANN., §6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . page 7
OTHER REFERENCES
BLACK’S LAW DICTIONARY (9th ed. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . page 3
page iv
STATEMENT OF FACTS
(In Reply to the Response of
the Real Party in Interest)
The Real Party in interest will be hereinafter referred to as “Haynes.”
Haynes’ recitation of the material pleadings contained in their Response to
Petition for Mandamus omits important facts. Although Haynes asserts that he
raised the issue of Relators’ lack of standing in the trial court and that Realtor’s
pleadings failed to state Realtor’s interest in the estate of Stone Haynes, (see Real
Party in Interest’s Response to Petition for Mandamus, pg. 1), Haynes neglects
to inform the court that Realtors addressed this issue in their Reply to Ben
Haynes’ Response to Defendants’ Motion to Transfer Venue and their Amended
Reply to Ben Haynes’ Response to Defendants’ Motion to Transfer Venue. (see
Realtors’ First Amended Petition for Writ of Mandamus, Appendix, pp. LVI -
LXX, Tabs 10, 11). Those documents that Haynes asserts are outside the record,
(Response to Petition for Mandamus, pg. 2), relate to Hayes’ lack of standing
argument and Realtors’ interest in Stone Haynes’ estate. They were, in fact,
before the court and discussed during the hearing on Realtors’ Motion to
Transfer Venue. (see Tab 1, pp. VI - X, Transcript pg. 4, line 1 - pg. 8, line 3).
In the event that this court should be inclined to find that such matters were not
considered by the trial court, Relators move this court pursuant to TEX. R. EVID.
201 to take judicial knowledge of pleadings in Cause No. 11,953 in the County
Court-at-Law of Anderson County, Texas, certified copies of which are
contained under Tabs Nos. 20 - 27 of Realtors’ First Amended Petition for Writ
page 1
of Mandamus filed in this matter. There was no disputed issue in the trial court
regarding the fact that Haynes claimed that Realtors were debtors of Stone
Haynes’ estate nor that Relators have asserted counterclaims against the estate
arising out of Haynes’ claims.
REPLY
(To Haynes Lack of Standing Argument,
Real Party in Interest’s Response to Petition for Mandamus,
pp. 3 - 5)
Haynes suggests that Relators have no standing to object to the venue of
these suits. Haynes’ own actions as executor of the decedent’s estate vividly
demonstrate that Relators have such standing.
Haynes filed suit against Relators alleging them to be debtors of the estate.
see (First Amended Petition for Writ of Mandamus, Appendix, pp. CIII - CV, Tab
21; Appendix, pg. XXXVIII, Tab 21). Relators responded by contesting the
allegations and asserting counterclaims against the estate for the recovery of
economic damages and attorneys’ fees. see (First Amended Petition for Writ of
Mandamus, Appendix, pp. CX - CXIII, Tab 23 at pp. CXI - CXII).
The Texas Probate Code in effect at the time Relators filed their motions
to transfer venue provided that, “If it appears to the court at any time before the
final decree in a probate proceeding that the proceeding was commenced in a
court which did not have priority of venue over such proceeding, the court shall,
on the application of any interested person, transfer the proceeding to the proper
county . . .” TEX. PROB. CODE ANN., §8A(a) (Vernon Supp. 2013); see (First
Amended Petition for Writ of Mandamus, Appendix, pg. CXLVIII, Tab 33). The
page 2
term, “Interested persons,” was defined by the Probate Code to include a “. .
.creditor, or any others having a property right in or claim against an estate
being administered . . .” TEX. PROB. CODE ANN., §3(r) (Vernon Supp. 2013) at
Tab 2; see now TEX. ESTATES CODE, §22.018. The term, “creditor” includes a
person or entity with a definite claim against another, especially a claim that is
capable of adjustment and liquidation. BLACK’S LAW DICTIONARY (9th ed. 2009);
see Tab 3. Insofar as Relators assert a claim for damages against the estate
under the Texas Deceptive Trade Practices Consumer Protection Act in reply to
Haynes’ suit on the note, they are creditors of the estate whose standing is
conferred by the statutory definition of “interested persons” in Section 3(r) of
the Texas Probate Code.
The term, “interested persons,” includes persons who have some legally
ascertained pecuniary interest, real or prospective, absolute or contingent, which
will be impaired or benefitted, or in some manner materially affected, by the
probate proceeding. In re Ramsey, 28 S.W.3d 58, 62 (Tex. App. –Texarkana,
2000, orig. proc.); see In re Bowie, 2008 WL 4821617 (Tex. App. –Beaumont,
2008, no pet.)(mem. op.). Haynes claims that Realtors are indebted to the
decedent’s estate, and, therefore, are in possession of money or property from
which Haynes alleged debt should be satisfied. The venue Haynes’ suit has a
direct impact on Relators’ pecuniary interest therein. Litigation in a forum
distant from their residence increases the cost of litigation, the ease with which
they can prosecute their defense to the litigation and their prospect for a
page 3
satisfactory conclusion thereof.
Realtors’ right to have the venue of Haynes’ suit against them on the note
fixed in a proper court has, also, been affected. Venue of the suit on the note
would be proper in the county in which the administration is pending. TEX. CIV.
PRAC. & REM. CODE ANN., §15.031 (Vernon 2002). Otherwise, Haynes’ suit on
the note must be brought:
(1) in the county in which all or a substantial part of the events or
omissions giving rise to the claim occurred, TEX. CIV. PRAC. & REM.
CODE ANN., §15.002(a)(1) (Vernon 2002);
(2) in the county of defendant’s residence, TEX. CIV. PRAC. & REM.
CODE ANN., §15.002(a)(2) (Vernon 2002); or
(3) in the county expressly named in the note that Haynes’ seeks to
enforce, TEX. CIV. PRAC. & REM. CODE ANN., §15.035(a), (b)
(Vernon 2002).
The administration of Stone Haynes’ estate is currently pending in
Anderson County although Haynes’ testified and the probate court found that,
the decedent resided and was domiciled in San Augustine County, Texas. It is
undisputed that Relators reside in San Augustine County, Texas, and that the
Estate of Gary L. Davidson was admitted to probate in the County Court of San
Augustine, Texas. As shown by the inventory, appraisement and list of claims
filed by Haynes in the probate matter, none of the property possessed by the
estate which would be subject to satisfaction of Relators’ claim was located
within Anderson County, but was located within San Augustine County, or
counties adjacent thereto. The note Haynes brought suit to enforce expressly
provided that it was payable in San Augustine County, Texas. Haynes does not
page 4
assert in this proceeding, and did not assert in the trial court, that venue of the
probate proceeding was proper in Anderson County under the Probate Code or
any other applicable venue statute. Rather, Haynes asserts that Realtors cannot
assert improper venue because they have no interest in that issue and that the
issue has been precluded because of Relators’ failure to appeal the judgment
admitting the estate to probate that was entered after the only notice to given to
Relators was posted in accordance with TEX. PROB. CODE ANN., §128(a) (Vernon
2003), see now TEX. ESTATES CODE, §258.001, at the courthouse door of a county
that was not their residence. The unavoidable result of Haynes’ argument is that
venue of Haynes’ collection suit against Realtors and Relators’ counterclaim will
be maintainable under TEX. CIV. PRAC. & REM. CODE ANN., §15.031 in Anderson
County notwithstanding Realtors’ objections and even though all parties admit
the facts establishing the venue of both the probate suit and the collection suit
is appropriate only San Augustine County. Because of Haynes’ conscious
decision to file the probate matter in a county where venue is not otherwise
maintainable, Haynes, according to his argument, insured against all objections
which might be raised that any suit by or against Stone Haynes’s estate would
have to be pursed in a forum inconveniently remote from San Augustine County,
the place where the contract evidenced by the note was executed and was
performable, the location where the evidence of the circumstances surrounding
the contract evidenced by the note and witnesses thereto would be found and the
county where the property of the estate subject to discharge Relators’ claim is
page 5
situated. This attempt to manufacture venue in a court which would not
otherwise be a court of proper venue should be rejected. see Olson v. Tromba,
615 S.W.2d 875 (Tex. Civ. App. --Houston[1st Dist.] 1981, writ dismss’d.)
(holding that, for venue purposes, an appointment of an administrator for the
purpose of manufacturing venue in a county which would not otherwise have
been an appropriate county in the hope of gaining a more favorable result
should be disregarded).
Relators, as alleged debtors of the decedent’s estate who have denied
liability and as creditors who have asserted affirmative counterclaims in the
judicial proceedings brought against them in a county in which venue would not
be appropriate but for the pending probate proceedings, clearly have a
pecuniary interest which may be materially affected by the administration of
Stone Haynes’ estate and, consequently, have standing to object to the venue of
the probate proceedings.
REPLY
(To Haynes Appealable Order Argument,
Real Party in Interest’s Response to Petition for Mandamus,
pp. 5 - 6)
Haynes’ assertion that the venue issue was conclusively established when
no appeal was taken from the order admitting decedent’s will to probate is
mistaken. While ordinarily only one final judgment may be entered in a suit,
probate proceedings are an exception to the “one final judgment” rule; in such
cases, “multiple judgments final for purposes of appeal can be rendered on
certain discrete issues .” De Avala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006).
page 6
Venue determinations in probate matters are not final, appealable orders.
Fernandez v. Bustamante, 305 S.W.3d 333, 338 (Tex. App. –Houston [14th Dist.],
2010, no pet.) (holding that the venue order at issue in that suit was not a final,
appealable order ripe for direct appeal). If it appears to the court at any time
before the final decree in a probate proceeding that the proceeding was
commenced in a court which did not have priority of venue over such
proceeding, the court shall, on the application of any interested person, transfer
the proceeding to the proper county. TEX. PROB. CODE ANN., §6, see now TEX.
ESTATES CODE, §33.102. In an independent administration, the “final decree”
contemplated by Section 8A(a) is the order closing the estate. See Fernandez v.
Bustamante, id. at 340 (stating that though a court may issue various probate
orders on particular issues, the court does not completely lose jurisdiction until
the entire estate is closed); In re Graham, 251 S.W.3d 844, 848 (Tex. App.
–Austin, 2008, orig. proc.) (holding that, for the purpose of the mandatory venue
provisions of the Texas Probate Code, an independent administration is
considered closed when all property has been distributed and debts have been
paid as fully as the assets allow and that the order admitting the will to probate
is not a “final decree” for venue purposes).
The authorities cited by Haynes are inapplicable to these proceedings. In
Jarvis v. Field, the complaint about improper venue was waived, not because it
was asserted on appeal after the entry of the order admitting the estate to
administration, but because it was not asserted by a motion challenging venue
page 7
filed in due order of pleading as required by TEX. R. CIV. P., 120a. see Jarvis v.
Field, 327 S.W.3d 918, 925 (Tex. App. –Corpus Christi, 2010, no pet.). In this
case, Davidson has complied with Rule 120a and filed her motion before or
contemporaneously with all other pleadings in these cases. In re Hudson was not
a venue case, but its holding was that the trial court’s action in denying the
appellant a jury trial was reviewable by appeal only, and not by mandamus. see
In re Hudson, 325 S.W.3d 811 (Tex. App. –Dallas, 2010, orig. proc.). There was
no venue question involved in the latter case.
It seems untenable to argue that all business involving the decedent’s
estate was complete while there is a suit pending by the decedent’s executor to
collect the balance due on a note that is alleged to be due to the estate.
CONCLUSION AND PRAYER
For the foregoing reasons and those raised in Relators’ First Amended
Petition for Writ of Mandamus, Relators request this court to:
(1) grant the Petition for Writ of Mandamus;
(2) direct the Respondent to:
(a) vacate the order overruling Relators’ Motion to Transfer
Venue”;
(b) grant Relators’ Motion to Transfer Venue; and
(c) order these proceedings to be transferred to the County Court
of San Augustine County, Texas, or other court of proper
jurisdiction in San Augustine County, Texas, by transmitting
page 8
to the proper court the original file in such case, together with
certified copies of all entries in the judge's probate docket
theretofore made; and
(3) Grant Relators such other and further relief to which they may be
entitled.
Respectfully Submitted:
Thomas R. McLeroy, Jr.
P. O. Box 668
Center, Texas 75935
(936) 598-2701
FAX (936) 598-6086
BY:
Attorney for Relator.
CERTIFICATE OF COMPLIANCE
In compliance with TEX. R. APP. P., 9.4(3), I certify that the word-count of
the foregoing brief is 1,699 words.
Attorney for Relator
page 9
APPENDIX
(Relator’s Reply to the Real Party in Interest’s
Response to Petition for Writ of Mandamus)
page I
TAB 1
(Reporter’s Record
of proceedings before the court
on March 25, 2013)
page II
page III
page IV
page V
page VI
page VII
page VIII
page IX
page X
page XI
page XII
page XIII
page XIV
page XV
page XVI
page XVII
page XVIII
page XIX
page XX
page XXI
page XXII
TAB 2
(Texas Probate Code § 3)
page XXIII
page XXIV
page XXV
page XXVI
page XXVII
page XXVIII
page XXIX
TAB 3
(Black’s Law Dictionary - “Creditor”)
page XXX
CREDITOR
Black's Law Dictionary (9th ed. 2009)
CREDITOR
creditor. (15c) 1. One to whom a debt is owed; one who gives credit for money or goods. — Also termed debtee. 2. A
person or entity with a definite claim against another, esp. a claim that is capable of adjustment and liquidation.
3.Bankruptcy. A person or entity having a claim against the debtor predating the order for relief concerning the debtor.
[Cases: Bankruptcy 2822.] 4.Roman law. One to whom any obligation is owed, whether contractual or otherwise.
Cf. DEBTOR.
© 2009 Thomson Reuters
Bryan A. Garner, Editor in Chief
END OF DOCUMENT
(c) 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
page XXXI