In re Sam J. Ramsey

• Decision Date: 03 August 2000
• Docket Number: No. 06-00-00105-CV,06-00-00105-CV
• Citation: 28 S.W.3d 58
• Parties: (Tex.App.-Texarkana 2000) IN RE: SAM J. RAMSEY, TEMPORARY ADMINISTRATOR OF THE ESTATE OF CECIL RAY LESLEY, DECEASED; CHASE BANK OF TEXAS, N. A., PERMANENT ADMINISTRATOR OF THE ESTATE OF CECIL RAY LESLEY, DECEASED; AND H & L RANCH, AN ALLEGED PARTNERSHIP
• Court: Texas Court of Appeals

Page 58

28 S.W.3d 58 (Tex.App.-Texarkana 2000)

IN RE: SAM J. RAMSEY, TEMPORARY ADMINISTRATOR OF THE ESTATE OF CECIL RAY LESLEY, DECEASED; CHASE BANK OF TEXAS, N. A., PERMANENT ADMINISTRATOR OF THE ESTATE OF CECIL RAY LESLEY, DECEASED; AND H & L RANCH, AN ALLEGED PARTNERSHIP

No. 06-00-00105-CV

In The Court of Appeals Sixth Appellate District of Texas

Submitted July 18, 2000

Decided August 3, 2000

Original Mandamus Proceeding

Before Cornelius, C.J., Grant and Ross, JJ.

O P I N I O N

Opinion by Chief Justice Cornelius

In this original proceeding, we consider the petition of Sam J. Ramsey and Chase Bank of Texas, relators, for a writ of mandamus to the Honorable Jim D. Lovett, judge of the Sixth Judicial District Court of Lamar County, and Marvin A. Patterson, the district clerk of Lamar County.

Relators request this Court to order the district court to vacate its order overruling their motion to dismiss a suit filed by the real party in interest, Nita Hodges, heir of the estate of Kenneth Hodges. Nita Hodges filed suit ("the partnership suit") in the district court to establish the existence of an oral partnership between Cecil Lesley and Kenneth Hodges, and to wind up that partnership. Alternatively, relators request this Court to order the district court to vacate its order overruling relators' motion to transfer venue and its order setting the case for trial and appointing a receiver, and to direct the district court and the district clerk to transfer the partnership suit to Dallas County Probate Court No. 3 ("the probate court").

Kenneth Hodges died on February 8, 1999. No administration was taken on his estate. Cecil Lesley died on November 22, 1999. On November 24, Ramsey applied for a temporary administration of Lesley's estate in the Dallas County Probate Court No. 3. The probate court granted temporary administration and appointed Sam Ramsey temporary administrator.

Nita Hodges filed her suit on January 18, 2000. She alleged that Cecil Lesley and Kenneth Hodges formed their partnership in the beginning of 1987; that the partnership involved land, cattle, equipment, and livestock; and that when Kenneth Hodges died, she gave notice to Lesley requesting that the partnership tender payment of the redemption price for Kenneth Hodges' partnership interest. She also alleged that Lesley and, later, Ramsey acted in bad faith in refusing to tender payment. She prayed that a receiver be appointed to wind up the partnership, that she be awarded damages for Lesley's and Ramsey's bad faith, and for costs and attorney's fees. She did not present her claim in the probate court.

On February 2, the probate court appointed Chase Bank as permanent administrator of Lesley's estate. On February 4, Chase filed in the probate court a motion to transfer the partnership suit from the district court to the probate court. The probate court granted Chase's motion on March 27.

On February 7, Ramsey and H & L Ranch responded to Hodges' petition in the partnership suit by filing a motion to transfer venue from the district court to the Dallas County probate court where the Lesley estate was being administered, a motion to dismiss for lack of jurisdiction, a motion to abate, and original answers subject to their motions. Chase Bank was added to the partnership suit by writ of scire facias and filed an answer, and all defendants then filed amended motions to transfer venue, to dismiss, and to abate.

On March 27, the district court heard and overruled the relators' motions to transfer the partnership suit to the Dallas County probate court. The district court also announced that it was overruling their motions to dismiss and to abate. That afternoon, the probate court heard and granted Chase's motion to transfer the partnership suit from the district court to the probate court. Hodges' counsel did not appear at the probate court hearing.

Hodges applied for the appointment of a receiver in the district court when she learned that the relators had filed a motion in the probate court seeking to lease real property she alleged was part of the partnership property. On June 28, the district court held a hearing on the appointment of a receiver in the partnership suit.

The district court first refused to rule on the defendants' motions for reconsideration of its March 27 rulings. Nevertheless, it is clear that the district court was aware of the probate court's action in ordering the transfer of the partnership suit. The district court then appointed a receiver and scheduled the partnership suit for trial on September 11.

Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); In re Turner Bros. Trucking Co., 8 S.W.3d 370, 373 (Tex. App.Texarkana 1999, orig. proceeding). We therefore must determine whether (1) the district court abused its discretion in refusing to dismiss or transfer the partnership suit, and (2) whether the relators have an adequate remedy by appeal. In re Turner Bros. Trucking Co., 8 S.W.3d at 373; Houston Chronicle Publ'g Co. v. Crapitto, 907 S.W.2d 99, 102 (Tex. App.-Houston [14th Dist.] 1995, orig. proceeding).

With respect to the resolution of factual issues or matters committed to the district court's discretion, we may not substitute our judgment for that of the district court. Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex. 1990). The relators must establish that the district court could reasonably have reached only one decision. Walker v. Packer, 827 S.W.2d at 840.

Our review is much less deferential with respect to the district court's determination of the legal principles controlling its ruling, because "[a] trial court has no 'discretion' in determining what the law is or applying the law to the facts." Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996); Walker v. Packer, 827 S.W.2d at 840. Consequently, the district court's erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion. Huie v. DeShazo, 922 S.W.2d at 927-28.

Hodges contends that venue for her suit against the partnership was appropriate in Lamar County because that is where the property is located and that is where the acts or omissions of the estate representative occurred. Under the venue statute, she contends, the district court had no authority to transfer the suit to the probate court as relators requested.

Section 5B of the Texas Probate Code¹ expressly authorizes a statutory probate court, such as the Dallas County Probate Court No. 3, to transfer a suit pending in a district or other court when that suit is one in which a personal representative of an estate pending in that probate court is a party. Greathouse v. McConnell, 982 S.W.2d 165, 171 (Tex. App.-Houston [1st Dist.] 1998, pet. denied).

Although venue of the partnership suit may have been appropriate in Lamar County, the express transfer authority granted by Section 5B applies notwithstanding the venue statutes. See Henry v. LaGrone, 842 S.W.2d 324 (Tex. App.-Amarillo 1992, orig. proceeding). When faced with the probate court's transfer order, the district court was required to transfer the suit.

In Henry v. LaGrone, 842 S.W.2d at 325-26, relators sought a writ of mandamus against the judge of a district court who issued a writ of prohibition preventing compliance with a statutory probate court's order to transfer a declaratory judgment action from the district court. The court of appeals held that, though venue was appropriate in the district court, Section 5B of the Texas Probate Code authorized the statutory probate court to transfer the suit notwithstanding any mandatory venue provisions. Id. at 327; see also In re J7S Inc., 979 S.W.2d 374, 377-78 (Tex. App.-Houston [14th Dist.] 1998, orig. proceeding), and Lanier v. Stem, 931 S.W.2d 1, 2-3 (Tex. App.Waco 1996, orig. proceeding) (cases construing Section 608 of the Texas Probate Code, a provision for transfer of guardianship estates, worded identically to Section 5B).

Hodges portrays this case as a conflict between the Probate Code and the Uniform Partnership Act. She contends that she is not seeking recovery against the estate or damages from the administrators but that her suit is against the partnership, and any recovery will be only from the partnership property. Her claim of bad faith against the administrator is limited, she contends, under Article 6132b-7.01(r) of the Uniform Partnership Act,² to recovery of attorney's fees and costs of appraisers and other experts. Therefore, she argues, she could not have brought the action in the probate court because she has no claim against the estate.

We disagree. Hodges could have filed her action in the probate court because she is a person interested in the estate. Probate proceedings are actions in rem. Mooney v. Harlin, 622 S.W.2d 83, 85 (Tex. 1981); In re Estate of York, 951 S.W.2d 122, 126 (Tex. App.Corpus Christi 1997, no pet.). The Probate Code allows joinder of all persons interested in an estate if they file opposition in writing. Tex. Prob. Code Ann. § 10 (Vernon 1980). An interested person is one who "has some legally ascertained pecuniary interest, real or prospective, absolute or contingent, which will be impaired or benefited, or in some manner materially affected, by the probate [proceeding]." Logan v. Thomason, 146 Tex. 37, 202 S.W.2d 212, 215 (1947); In re Estate of York, 951 S.W.2d at 126. Because Hodges had an interest in property controlled by the estate that would be affected by the administration, she had a pecuniary interest in the probate proceedings.

This case does not present a conflict between partnership law and probate law. Rather, it presents a conflict between two courts over which will resolve a dispute involving partnership law. Though partnership law and probate law are distinct, the provisions of Section 5B of the Texas Probate Code are not...