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