Opinion
No. 04-04-00222-CV
Delivered and Filed: May 26, 2004.
This original proceeding arises out of Cause No. 2003-PC-1128, in Probate Court No. 2, Bexar County, Texas, the Honorable Tom Rickhoff presiding.
Petition for Writ of Mandamus Denied.
Sitting: Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
The court has considered relator's petition for writ of mandamus filed on April 1, 2004. This mandamus proceeding arises out of a pending administration of the Estate of Barbara A. Magee in which relator Thomas L. Magee, in his capacity as executor of the estate and successor trustee of the Thomas E. Magee and Barbara A. Magee Revocable Living Trust, filed a forcible entry and detainer action seeking to remove his brother, Michael Magee, from residential property owned by the trust. Both Thomas and Michael Magee are 50% beneficiaries under the trust and the estate. In his mandamus petition, relator argues that the trial court has refused to rule on his forcible entry and detainer action, and asks this court to compel the trial court to grant him immediate possession of the property.
The court is of the opinion that relator is not entitled to mandamus relief. With all due respect to the dissent, on the record presented, we are not certain that relator Thomas Magee has proved a superior right to immediate possession of the property, or that the trial court has refused to rule.
The trial court conducted a hearing on the forcible entry and detainer action on November 10, 2003. Also pending at that hearing was Michael Magee's motion to consolidate the administration of the estate with his breach of fiduciary duty claim against Thomas Magee based on the brothers' co-beneficiary status under the trust and estate, and Michael Magee's established residence on the property before and after Barbara Magee's death. The hearing transcript suggests that the trial judge questioned whether the right of immediate possession of the property was inextricably intertwined with the question of ownership and title between Thomas and Michael Magee as co-beneficiaries of the trust and estate. See Dormady v. Dinero Land Cattle, Co., L.C., 61 S.W.3d 555, 557 (Tex. App.-San Antonio 2001, pet. dism'd w.o.j.) (if the question of title or ownership is inextricably intertwined with the issue of possession, then possession may not be adjudicated without first determining title to the property). In addition, at the conclusion of the November 10, 2003, hearing, the trial court instructed the parties' counsel to reset the matter for a continuation of the hearing within a short time period, clearly expressing his intention to resolve all the issues on a "short fuse." The record does not provide any evidence that either party requested a hearing or ruling after the November 10, 2003, continuance.
Before Thomas Magee filed the forcible entry and detainer action, but while the administration of the estate was pending, Michael Magee filed a separate action for breach of fiduciary duty against Thomas Magee as trustee in Cause No. 2003-PC-3209, in Probate Court No. 2, Bexar County, Texas.
We find that the record does not show that the trial court failed to exercise a legal, nondiscretionary duty to rule on the forcible entry and detainer action. See In re Ramirez, 994 S.W.2d 682, 683 (Tex. App.-San Antonio 1998, orig. proceeding); In re Flores, No. 04-03-00449-CV, 2003 WL 21480964 at * 1 (Tex. App.-San Antonio 2003, orig. proceeding). Accordingly, relator's petition for writ of mandamus is denied. Relator shall pay all costs incurred in this proceeding.
DISSENTING OPINION
The majority denies Magee's petition for a writ of mandamus because "the record does not show that the trial court failed to exercise a legal, nondiscretionary duty to rule." I disagree. Although the trial court did not refuse to rule explicitly, it did so implicitly by sending the parties and their lawyers off to obtain appraisals of the estate's assets and compile an inventory before they scheduled a continuation of the hearing on Magee's forcible entry and detainer action. See Tex.R.App.P. 33.1(a)(2)(A) (error is preserved by implicit ruling). I would issue the requested writ of mandamus to compel the trial court to rule on Thomas L. Magee's forcible entry and detainer action.
This mandamus proceeding arises out of Cause No. 2003-PC-1128, styled In the Estate of Barbara A. Magee. Mrs. Magee's son, Thomas L. Magee, is the executor of her estate and the successor trustee of The Thomas E. Magee and Barbara A. Magee Revocable Living Trust. As successor trustee, Thomas L. Magee was immediately vested with "[a]ll rights, titles and interests in the property of the Trust," which includes Mrs. Magee's home at 216 Twilight Terrace. At the time of Mrs. Magee's death, the Twilight Terrace home was occupied by Mrs. Magee's other son, Michael Magee, and his family. Despite Thomas L. Magee's demand, Michael Magee and his family have refused to relinquish possession of the premises. Accordingly, Thomas L. Magee filed a forcible entry and detainer action seeking eviction of Michael Magee and his family.
"The forcible detainer action is the procedure by which the right to immediate possession of real property is determined." Ward v. Malone, 115 S.W.3d 267, 270 (Tex. App.-Corpus Christi 2003, pet. denied) "It is a special proceeding governed by particular statutes and rules," "created to provide a speedy, simple and inexpensive means for resolving the question of the right to possession of real property." Id. "To preserve the simplicity and speedy nature of the remedy, the applicable rule of civil procedure provides that `the only issue shall be as to the right to actual possession; and the merits of the title shall not be adjudicated.'" Id. "Thus, the sole issue in a forcible detainer action is who has the right to immediate possession of the premises." Id.
At the hearing on the FED action, Thomas L. Magee proved he was entitled to present possession of the Twilight Terrace home. However, after hearing the evidence, the trial court appears to have lost sight of the objective of a forcible entry and detainer action and, rather than decide the right to immediate possession, sent the parties and their lawyers off to obtain appraisals of the estate's assets and compile an inventory — neither of which is relevant to the issue of the present right to possession. Thomas L. Magee's attorney reminded the court that the sole issue before it was the present right to possession:
Mr. Miller: I don't have any objection to somebody doing an appraisal on the house. Judge, the issue today though — this is a [f]orcible [e]ntry [and] [d]etainer [a]ction. And I don't have to tell you that the only issue before the Court is present possession of the house.
The Court: But I want to wrap it up, because these guys can't afford to spend money talking about other issues.
The trial court then directed the parties, when the inventory and appraisals were completed, to schedule another hearing. So far as our record reveals, neither party has done so.
The majority holds "the record does not show that the trial court failed to exercise a legal, nondiscretionary duty to rule." I disagree. Thomas L. Magee's attorney proved his right to present possession of the Twilight Terrace home and asked the trial court to rule that Thomas L. Magee was vested with the present right to possession; and the trial court implicitly denied his request by directing the preparation of an inventory and appraisal and the rescheduling of another hearing. No more is required. See Tex.R.App.P. 33.1(a)(2)(A) (error is preserved by implicit ruling). Accordingly, I would issue the requested writ of mandamus to compel the trial court to rule on Thomas L. Magee's forcible entry and detainer action.