Opinion
07-23-00437-CV
08-06-2024
IN RE TAMMY HARBIN AS DEPENDENT ADMINISTRATRIX OF THE ESTATE OF BENNY D. EADS, TERRI LEE PALSER, AND TIM D. EADS, RELATORS
Original Proceeding
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
MEMORANDUM OPINION ON REHEARING
BRIAN QUINN, CHIEF JUSTICE
Pending before the court is the motion of Tammy Harbin, as dependent administratrix of the estate of Benny D. Eads, Terri Lee Palser, and Tim D. Eads (the Harbins) for rehearing. We deny the motion, withdraw our opinion and judgment issued on June 5, 2024, and substitute the following in its stead.
Approximately one year, eight months, and twenty-one days after the trial court denied her motion to transfer venue, Tammy Harbin, as dependent administratrix of the estate of Benny D. Eads, Terri Lee Palser, and Tim D. Eads (the Harbins) petitioned this court for a writ of mandamus. The object of the writ is the Honorable Steven Emmert, 31st Judicial District Court, Wheeler County, Texas (trial court). They ask us to "command[] . . . [the trial court] to vacate [its] order denying the motion to transfer venue and to abate and order[] him to execute an order abating this case in favor of the court of dominant jurisdiction, or alternatively for an order transferring the underlying case to the probate court of Brown County, Texas." "[T]he underlying case" involves a suit for trespass to try title to realty located in Wheeler County. Yet, the realty in question is purportedly part of the testamentary estate of Benny D. Eads, which estate is undergoing probate in Brown County. Therefore, the Harbins moved to transfer the Wheeler County suit to Brown County. The trial court denied the motion after hearing. And, though they also moved to abate the Wheeler County proceeding, we find no order granting or denying that request. We deny the petition for the following reasons.
Preliminarily, we accept the Harbins' invitation to treat their motion to abate as being denied simultaneously with their motion to transfer venue and assume arguendo that it was. That leads us to observe mandamus is an extraordinary remedy available in limited circumstances. In re Hotze, 627 S.W.3d 642, 646 (Tex. 2020) (orig. proceeding). "Though not an equitable remedy, its issuance nevertheless is largely controlled by equitable principles." In re Abney, 486 S.W.3d 135, 138 (Tex. App.-Amarillo 2016, orig. proceeding). "One such principle mandates the use of diligence" Id. When the record fails to show that the petitioner acted diligently to protect his rights, mandamus is unavailable. In re Hotze, 627 S.W.3d at 646 (involving a ten-week delay in challenging a governor's proclamation); see In re Epps, No. 07-14-00420-CV, 2014 Tex.App. LEXIS 13951, at *4-5 (Tex. App.-Amarillo Dec. 31, 2014, orig. proceeding) (mem. op,) (stating the same and concluding that relief was waived because of an unexplained ten-month delay); see also Rivercenter Assocs. v. Rivera, 858 S.W.2d 367-68 (Tex. 1993) (orig. proceeding) (concluding that relator failed to show diligent pursuit of rights when it waited over four months to seek mandamus relief); In re N. Plains Elec. Coop., No. 07-21-00060-CV, 2021 Tex.App. LEXIS 2877, at *7-8 (Tex. App.-Amarillo Apr. 15, 2021, orig. proceeding) (mem. op.) (per curiam) (holding that a nearly seven-month unjustified delay amounted to "an essential waiver" of right to seek extraordinary relief).
They urged as follows: "The trial court's [venue] order acknowledges the filing of the Plea to Abate, states that it considered that pleading, states that it considered the arguments of counsel, and ultimately denies the relief sought. When this evidence is coupled with the trial court's statements on the record that he would rule on both issues simultaneously, it is abundantly clear that the trial court denied the Plea to Abate as well as the Motion to Transfer."
The record at bar illustrates that the trial court heard the motion to transfer venue on November 17, 2021, and signed its order on March 7, 2022. Approximately one year and eight months passed before the Harbins petitioned for a writ of mandamus. By then, the parties had exchanged emails with court personnel about scheduling a trial on the cause. It had remained pending for over two years. See TEX. R. JUD. ADMIN. 6.1(a)(1), (2) (noting that non-jury civil cases should be disposed of within eighteen months from appearance date, while jury cases should be disposed of within twelve months of that date). Furthermore, those emails resulted in a tentative trial date of February 26, 2024, which date since lapsed. The aforementioned over twenty-month delay here far exceeds that found unacceptable in cases such as In re Epps. Nevertheless, the Harbins proffered an explanation for their non-diligence.
Through his affidavit, their counsel attested that the March 7th order "was not received directly from the Court" but, rather, "delivered to me by opposing counsel via email on August 29, 2023." His attestation alluded to receipt of the order and says nothing about prior knowledge or notice had by him or his clients. Nevertheless, it seems he may not have known of it until August 2023. An email he apparently sent to a court representative on August 2, 2023, suggests as much. Despite gaining that knowledge upon receipt of the August 29th email, the Harbins still did not act. Instead, they allowed three more months to lapse before petitioning us. Why they did was a matter left unexplained. Instead, they initiated discovery.
Of further import is our long-standing rule. Once a trial court has jurisdiction over a party, that party is obliged to keep himself informed of the proceedings in the case. K.B. Video & Elec., Inc. v. Naylor, 847 S.W.2d 401, 408 (Tex. App.-Amarillo 1993, writ denied). This indicates, at the very least, that the Harbins had an affirmative duty to keep abreast of the order's potential issuance. Little of record suggests that a periodic call by them to the district clerk of Wheeler County between the date of the hearing in 2021 and August 2023 would have failed to reveal the existence of the March 7, 2022 order. Nothing suggests that they made such inquiries or that anyone impeded them from contacting the clerk.
Simply put, the foregoing circumstances depict an absence of diligence on their part even if one were to accept the notion that they knew not of the order until August 29, 2023. And given the length of the delay before August 29 coupled with that transpiring thereafter, we remain convinced of the propriety of denying them mandamus relief.
Nor is their citation to § 15.0642 of the Texas Civil Practice and Remedies Code enough to change the outcome. The statute not only states that a party may seek mandamus to "enforce the mandatory venue provisions of this chapter" but also provides time periods within which to act. TEX. CIV. PRAC. &REM. CODE ANN. § 15.0642 (1), (2). (emphasis added). And, while their effort may have fallen within those periods, they cite us to no "mandatory venue provision[] of this chapter" upon which they relied in seeking transfer. Instead, they sought transfer based on a provision of the Texas Estate Code, i.e., § 31.003(5). And, one cannot reasonably deny that the phrase "of this chapter" found in § 15.0642 of the Civil Practice and Remedies Code referred to a mandatory venue provision found in Chapter 15 of the Civil Practice and Remedies Code. Section 15.0642 of the Estates Code is not part of Chapter 15 of the Civil Practice and Remedies Code, and it is not within our power to rewrite the statute and change that. See Bond Restoration, Inc. v. Ready Cable, Inc., 462 S.W.3d 597, 601 (Tex. App.-Amarillo 2015, pet. denied) (noting our lack of authority to rewrite a statute to include what the legislature omitted).
We are aware of the Harbins' contention that they actually did rely on a mandatory venue provision when moving to transfer. The provision to which they allude is § 15.16 of the Civil Practice and Remedies Code. Labelled "Other Mandatory Venue," it states that "[a]n action governed by any other statute prescribing mandatory venue shall be brought in the county required by that statute." TEX. CIV. PRAC. & REM. CODE ANN. § 15.16. Affording the statute its plain meaning, see TEX. GOV'T CODE ANN. §§ 311.001(a), 312.002(a) (so requiring a court to do), we conclude that it does not assign a particular cause of action a particular place of venue like those sections of the same code immediately preceding and following it. See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 15.015 (stating that a suit against a county shall be brought in that county); id. § 15.0151(a) (specifying the mandatory venue of a suit against a political subdivision); id. § 15.017 (specifying that suits for libel, slander, and invasion of privacy shall be initiated in the county in which the plaintiff resided at the time of the action's accrual). It simply clarifies that other causes of action encompassed within mandatory venue provisions outside Chapter 15 of the Civil Practice and Remedies Code are controlled by the statute found outside Chapter 15. And, most importantly, the Harbins conceded in their petition for writ of mandamus that they relied on a purported "mandatory venue provision" which lay outside the Civil Practice and Remedies Code; the allegation that "Relators thereafter filed a motion to transfer venue to Brown County, Texas based on the mandatory venue provisions found in § 32.001 of the Texas Estates Code " evinces as much. (Emphasis added).
Yet, even assuming arguendo that § 15.16 were a mandatory venue statute encompassed by § 15.0642, another flaw lies within the Harbins' argument. Jurisdiction and venue are not one and the same. Gordon v. Jones, 196 S.W.3d 376, 383 (Tex. 2006). The former pertains to a court's legal authority or power. TV Azteca v. Ruiz, 490 S.W.3d 29, 36 (Tex. 2016) (quoting CSR Ltd. v. Link, 925 S.W.2d 591 (Tex. 1996), for the principle that subject matter jurisdiction refers to the court's power to hear a particular type of suit while personal jurisdiction concerns the court's power to bind a particular person). Venue, however, concerns the geographic location at which a suit may be brought. Gordon, 196 S.W.3d at 383. In reading the purported "venue" statute on which the Harbins rely, that is, § 32.001 of the Estates Code, we see that its subject matter refers to the type of court which may resolve estate disputes. The provision first states that "[a]ll probate proceedings must be filed and heard in a court exercising original probate jurisdiction," TEX. EST. CODE ANN. § 32.001(a), and continues with "[t]he court exercising original probate jurisdiction also has jurisdiction of all matters related to the probate proceeding as specified in Section 31.002 for that type of court." Id. Simply put, the statute informs us that the court in which one initiates the proceeding must have "original probate jurisdiction." Requiring the court to have original probate jurisdiction alludes to the power of the particular court to act, as opposed to the location of that particular court. Indeed, nothing in § 32.001 mentions a geographic locale in which the particular dispute must be prosecuted. So, the statute does not address venue but, rather, jurisdiction and, consequently, falls outside the parameters of § 15.0642 of the Civil Practice and Remedies Code. That means the Harbins err in proposing that "Section 32.001 of the Estates Code provides for mandatory venue in the probate court of all matters related to probate." Nor does their citation to In re Hannah, 431 S.W.3d 801 (Tex. App.-Houston [14th Dist.] 2014, orig. proceeding), mandate a different conclusion.
The In re Hannah panel began its analysis of the dispute there involved with the Texas Estates Code, and did so "because, in the event any mandatory jurisdiction or venue provision in the Estates Code applies to the underlying suit, such provision would control." Id. at 807. We have no quarrel with that proposition. Yet, nowhere did it say that any particular provision of the Estates Code constituted a provision of mandatory venue. Instead, its analysis consisted of whether the dispute "qualif[ied] either as a 'probate proceeding' or 'matter related to a probate proceeding.'" Id. at 807-08. Qualifying as either meant that the particular court to which transfer was sought in In re Hannah had the power or jurisdiction to adjudicate the controversy. See TEX. EST. CODE ANN. § 31.001 (defining the term probate proceeding as used in the jurisdictional statute § 32.001); § 31.002 (defining "a matter related to a probate proceeding" as used in the same jurisdictional statute). And, because it found that the particular dispute qualified as neither, In re Hannah 431 S.W.3d at 807-10, the In re Hannah court had no occasion to address whether any venue provision within the Estates Code was actually mandatory. So, In re Hannah neither held venue provisions in the Estates Code relating to probate proceedings were mandatory for purposes of § 15.16 or § 15.0642 of the Civil Practice and Remedies Code nor benefitted the Harbins.
The Estates Code provisions cited by In re Hannah are either inapplicable to the instant cause or do not provide for mandatory venue. For instance, § 33.002 provides that venue "is proper" in a statutory probate court in which a decedent's estate is pending. Brown County, to which the Harbins seek transfer, does not have such a statutory probate court, and the Harbins sought transfer actually to the constitutional county court of Brown County. Moreover, venue being "proper" in a particular county hardly connotes a directive to file it there. Section 33.052 deals with jurisdiction in a situation where applications for probate proceedings were filed in two or more courts having concurrent venue. And, § 31.101 prescribes the procedure for transferring a cause. And, further analysis of In re Hannah could lead one to conclude that the opinion favors placing venue in Wheeler County. As noted by the court, "[i]f a mandatory venue provision in Chapter 15 applies, suit must be brought in the county required by the mandatory venue provision." In re Hannah, 431 S.W.3d at 806 (quoting In re Sosa, 370 S.W.3d 79, 81 (Tex. App.-Houston [14th Dist.] 2012, orig. proceeding)). Section 15.011 of the Civil Practice and Remedies Code provides that mandatory venue for an action in trespass to try title would lie in the county in which all or a part of the property is located. See TEX. CIV. PRAC. &REM. CODE ANN. § 15.011. THE REALTY AT ISSUE LIES IN WHEELER COUNTY. SO, AGAIN, In re Hannah does not support the Harbins.
For the foregoing reasons, we deny the petition for writ of mandamus.