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 2003-04

Gonzalez, Jannete, as Dependent Administrator of the Estate of Guadalupe Gonzalez, Jr. v. Reliant Energy, Inc. ( 2003 )


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  • Opinion issued April 29, 2003













      In The

    Court of Appeals

    For The

    First District of Texas



    NO. 01-02-00679-CV



    RELIANT ENERGY, INCORPORATED, Appellant



    V.



    JANNETE GONZALEZ, AS DEPENDENT ADMINISTRATOR OF THE ESTATE OF GUADALUPE GONZALEZ, JR., DECEASED, Appellee



    * * * * *



    NO. 01-02-01054-CV



    JANNETE GONZALEZ, AS DEPENDENT ADMINISTRATOR OF THE ESTATE OF GUADALUPE GONZALEZ, JR., DECEASED, Appellant



    V.



    RELIANT ENERGY, INC., Appellee



    On Appeal from the 113th District Court

    Harris County, Texas

    Trial Court Cause No. 2002-21820





    CONCURRING OPINION



    These cases are accelerated, interlocutory appeals from the Harris County district court's denial and subsequent grant of an application for an anti-suit injunction abating duplicative proceedings in a wrongful death action in an Hidalgo County statutory probate court. Because the majority fails to address issues that, in my view, are necessary to the proper disposition of this appeal, I respectfully concur in the judgment only. I would deny the motion, withdraw the previous en banc opinion, and issue this opinion in its place. I would affirm the trial court's September 6, 2002 order granting the anti-suit injunction.

    Anti-Suit Injunctions

    Texas state courts have the power to restrain persons from proceeding with suits filed in other courts of this state by granting an "anti-suit injunction," abating proceedings in a second forum. Gannon v. Payne, 706 S.W.2d 304, 305 (Tex. 1986). The general rule is that, when suit is filed in a court of competent jurisdiction, that court is entitled to proceed to judgment and may protect its jurisdiction by enjoining the parties to a suit filed in another court of this state. Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001); Gannon, 706 S.W.2d at 305-06. It is well-established that a trial court has the power to issue an anti-suit injunction and that an interlocutory appeal lies from the decision to grant or deny the injunction. See Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651 (Tex. 1996). The trial court's decision is reviewed under an abuse of discretion standard. Gannon, 706 S.W.2d at 305. A trial court abuses its discretion when it misapplies the law to the established facts of the case. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

    Discussion

    Whether the Harris County District Court abused its discretion in refusing to enjoin the prosecution of Gonzalez's wrongful death action in the Hidalgo County statutory probate court turns on the proper forum for that action.

    Reliant contends that the venue of Gonzalez's wrongful death action is controlled by section 15.007 of the Civil Practice and Remedies Code, which provides that, in a suit for personal injury, death, or property damage brought by a personal representative of an estate, the venue provisions of the Civil Practice and Remedies Code control over conflicting venue provisions in the Probate Code. If section 15.007 applies to Gonzalez's wrongful death action and the venue provisions of the Civil Practice and Remedies Code therefore control over the venue provisions of the Probate Code, as Reliant contends, venue for Gonzalez's wrongful death action is proper only in Harris County, where the events giving rise to the claim occurred and where Reliant has its principal office, and not in Hidalgo County, where the estate proceedings are pending. See Tex. Civ. Prac. & Rem. Code Ann. §§ 15.007, 15.002 (Vernon 2002).  

    Gonzalez, however, contends that she did not rely on the venue provisions of the Probate Code to establish venue for her wrongful death action in Hidalgo County; rather, she relied on sections 5A and 5B of the Probate Code. She argues that sections 5A and 5B establish dominant jurisdiction over claims brought by a personal representative of an estate in the statutory probate court to the exclusion of the district court's jurisdiction; and, since they are jurisdictional statutes, not venue statutes, they are not controlled by section 15.007 of the Civil Practice and Remedies Code, since that section controls only over conflicting venue provisions in the Probate Code. Gonzalez contends that the proper forum is the Hidalgo County statutory probate court.

    The central question, then, is whether sections 5A and 5B of the Probate Code are indeed jurisdictional statutes that are not controlled by section 15.007 of the Civil Practice and Remedies Code and whether the Hidalgo County statutory probate court is, therefore, the only proper forum for Gonzalez's wrongful death action, or whether venue for proceedings related to estate proceedings is actually established by a venue provision of the Probate Code that is preempted by section 15.007, whether that provision is section 5A or 5B or some other provision of the Code.

    The majority, however, fails to address this issue. Instead, it simply holds that venue cannot be dispensed with in establishing a proper forum; venue for proceedings related to probate proceedings is determined by the Probate Code, specifically section 6 of the Code; section 15.007 preempts section 6; therefore, venue for wrongful death actions, which are within the scope of section 15.007, is set by the Civil Practice and Remedies Code, not by the Probate Code. But in reaching this conclusion without addressing the contentions of the parties, the majority begs the central issue in this complex case: if a jurisdictional statute, like section 5A or 5B of the Probate Code, overrides even mandatory venue provisions in the Civil Practice and Remedies Code--as many Texas courts have held--how can that jurisdictional statue be preempted by a non-mandatory venue provision in the Civil Practice and Remedies Code?

    To determine the proper forum for Gonzalez's wrongful death action, it is necessary to determine whether sections 5A and 5B indeed establish both jurisdiction and venue for proceedings related to estate proceedings and whether, as jurisdictional statues, they control over section 15.007, a venue statue; or whether sections 5A and 5B are themselves wholly or partially venue statues whose venue-providing aspect is preempted by section 15.007; or whether some other venue provision in the Probate Code authorizes the probate court to determine venue for proceedings related to estate proceedings and is preempted by section 15.007.

    Statutory Provisions

    Section 15.007 of the Civil Practice and Remedies Code ("Conflict with Certain Provisions") provides:

    [T]o the extent that venue under this chapter for a suit by or against an executor, administrator, or guardian as such, for personal injury, death, or property damage conflicts with venue provisions under the Texas Probate Code, this chapter controls.



    Tex. Civ. Prac. & Rem. Code Ann. § 15.007.

    Section 15.002 of the Civil Practice and Remedies Code ("Venue: General Rule") provides venue for wrongful death suits, stating:

    (a) Except as otherwise provided by this subchapter or Subchapter B or C, all lawsuits shall be brought:



    (1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;



    (2) in the county of defendant's residence at the time the cause of action accrued if defendant is a natural person;



    (3) in the county of the defendant's principal office in this state, if the defendant is not a natural person; or



    (4) if Subdivisions (1), (2), and (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action.



    (b) For the convenience of the parties and witnesses and in the interest of justice, a court may transfer an action from a county of proper venue under this subchapter or Subchapter C to any other county of proper venue on motion of a defendant filed and served concurrently with or before the filing of the answer . . . .



    Tex. Civ. Prac. & Rem. Code Ann. § 15.002.

    Section 5A of the Probate Code, ("Matters Appertaining and Incident to an Estate and Other Probate Court Jurisdiction") provides in part:

    (b) In proceedings in the statutory probate courts and district courts, the phrases "appertaining to estates" and "incident to an estate" in this Code include the probate of wills . . . and also include, but are not limited to, all claims by or against an estate . . . . In situations where the jurisdiction of a statutory probate court is concurrent with that of a district court, any cause of action appertaining to estates or incident to an estate shall be brought in a statutory probate court rather than in the district court.



    (c) A statutory probate court has concurrent jurisdiction with the district court in all actions:



    (1) by or against a person in the person's capacity as a personal representative;

    . . . .



    (d) A statutory probate court may exercise the pendent and ancillary jurisdiction necessary to promote judicial efficiency and economy.



    (e) Subsections (c) (2), (3), and (4) and Subsection (d) apply whether or not the matter is appertaining to or incident to an estate.



    Tex. Prob. Code Ann. § 5A (Vernon 2003).



    Section 5B of the Probate Code, "Transfer of Proceedings," provides in part:

    A judge of a statutory probate court, on the motion of a party to the action or on the motion of a person interested in an estate, may transfer to his court from a district . . . court a cause of action appertaining to or incident to an estate pending in the statutory probate court or a cause of action in which a personal representative of an estate pending in the statutory probate court is a party and may consolidate the transferred cause of action with the other proceedings in the statutory probate court relating to that estate.



    Tex. Prob. Code Ann. § 5B (Vernon 2003).  

    Statutory Construction  

    Matters of statutory construction are questions of law for the court to decide. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989). We liberally construe statutes to achieve their purposes and promote justice. Maley v. 7111 Southwest Freeway, Inc., 843 S.W.2d 229, 231 (Tex. App.--Houston [14th Dist.] 1992, writ denied). Our objective in construing a statute is to determine and give effect to the intent of the lawmaking body. Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998). In so doing, we look first to the plain and common meaning of the statute's words. Id.; see also Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999). We also consider the statute's legislative history, the objective sought, and the consequences that would flow from alternate constructions. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex. 2000). We look at the entire act, and not at a single section in isolation from others. Fitzgerald, 996 S.W.2d at 866. We should not adopt a construction that would render a law or provision absurd or meaningless. See Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex. 1987); Mueller v. Beamalloy, Inc., 994 S.W.2d 855, 860 (Tex. App.--Houston [1st Dist.] 1999, no pet.). To determine the proper construction of sections 5A and 5B of the Probate Code and section 15.007 of the Civil Practice and Remedies Code, therefore, we must turn first to their plain language, then to the title of these sections, the object sought to be attained, and the consequences of our construction. See Tex. Gov't Code Ann. § 311.023 (Vernon 1998); City of Dallas v. Cornerstone Bank, N.A., 879 S.W.2d 264, 270 (Tex. App.--Dallas 1994, no writ); Linick v. Employers Mut. Cas. Co., 822 S.W.2d 297, 301 (Tex. App.--San Antonio 1991, no writ).

    Jurisdiction and Venue  

    This case requires that we determine the court of proper jurisdiction and venue for Gonzalez's wrongful death action. "Jurisdiction" deals with the power of a court, under the Constitution and laws, to determine the merits of an action as between the parties and to render a judgment. National Life Co. v. Rice, 167 S.W.2d 1021, 1024 (Tex. 1943); Nipper v. U-Haul Co., 516 S.W.2d 467, 470 (Tex. App.--Beaumont 1943, no writ); see also 2 McDonald, Texas Civil Practice, § 6:2 (Rev. Vol. 1992). "Venue" signifies the county in which a plaintiff has the legal right to institute and maintain suit. National Life, 167 S.W.2d at 1025; Nipper, 516 S.W.2d at 470; see also 2 McDonald at § 6:2. A plaintiff has the first choice to establish venue in a proper county by filing suit in the county of his choice. In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999). If a defendant objects to the plaintiff's venue choice, the plaintiff must prove that venue is proper in the county where suit has been filed. Id. If the plaintiff fails to establish proper venue, the trial court must transfer venue to the county specified in the defendant's motion to transfer, provided that the defendant provides prima facie proof that the county to which he has requested transfer is a county of proper venue. Id. A trial court's transfer of a case to a county of improper venue is an abuse of discretion that renders its transfer order voidable. Id. at 198.

    Jurisdiction and Transfer of Proceedings Under Sections 5A and 5B of the Probate Code  



    Section 5A of the Probate Code ("Matters Appertaining and Incident to an Estate and Other Probate Court Jurisdiction") provides that "[a] statutory probate court has concurrent jurisdiction with the district court in all actions . . . by or against a person in the person's capacity as a personal representative." Tex. Prob. Code Ann. § 5A(c)(1) (emphasis added). By its plain language and its caption, section 5A is a jurisdictional statute that confers concurrent jurisdiction on district courts and statutory probate courts for an action brought by a personal representative of an estate. The concurrent jurisdiction of those courts under section 5A extends to wrongful death and survival actions brought by or against personal representatives. Palmer v. Coble Wall Trust Co., Inc., 851 S.W.2d 178, 182 (Tex. 1992); Tovias v. Wildwood Props P'ship, L.P., 67 S.W.3d 527, 529 (Tex. App.--Houston [1st Dist.] 2002, no pet.). (1) But our analysis of section 5A does not end with section 5A(c)(1).  

    Gonzalez points out that section 5A(b) of the Probate Code provides that, "[i]n situations where the jurisdiction of a statutory probate court is concurrent with that of a district court, any cause of action appertaining to estates or incident to an estate shall be brought in a statutory probate court rather than in the district court." Tex. Prob. Code Ann. § 5A(b) (Vernon 2003) (emphasis added). Construing this language as conferring dominant jurisdiction on the Hidalgo County statutory probate court to the exclusion of the Harris County district court, Gonzalez argues that "therefore, according to legislative mandate, the Hidalgo County statutory probate court has jurisdiction 'rather than' the Harris County district court." I disagree.

    This court has held that statutory probate courts have dominant, but not exclusive, jurisdiction over claims relating to an estate once probate proceedings have been filed in the probate court. Tovias, 67 S.W.3d at 529; First State Bank of Bedias v. Bishop, 685 S.W.2d 732, 736 (Tex. App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.). In interpreting section 5A(b)(1), we cited with approval to Pullen v. Swanson, in which the Fourteenth Court of Appeals concluded:

    The [last] sentence [in section 5A(b)] is a statutory expression of a policy of judicial self-restraint that once the jurisdiction of the statutory probate court has attached and that jurisdiction is adequate to grant the requested relief, the District Court should refrain from exercising its concurrent jurisdiction.



    First State Bank of Bedias, 685 S.W.2d at 735-36 (quoting Pullen, 667 S.W.2d 359, 364 (Tex. App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.).

    Section 5A is plainly a jurisdictional statute, but, for the reasons set forth below, I would find that a statutory probate court lacks the jurisdiction under section 5A to determine venue for wrongful death actions. The question, therefore, is whether section 5B is also a jurisdictional statute that confers on probate courts jurisdiction to determine venue for proceedings related to estate proceedings pending in the probate court.

    Section 5B ("Transfer of Proceedings") provides, "A judge of a statutory probate court . . . may transfer to his court from a district . . . court a cause of action appertaining to or incident to an estate . . . and may consolidate the transferred cause of action with the other proceedings in the statutory probate court." Tex. Prob. Code Ann. § 5B (Vernon 2003). Section 5B thus authorizes the transfer of proceedings into the statutory probate court to carry out the mandate of section 5A(d) that "[a] statutory probate court may exercise the pendent and ancillary jurisdiction necessary to promote judicial efficiency and economy." Tex. Prob. Code Ann. § 5A(d)(Vernon 2003); see In re Ramsey, 28 S.W.3d 58, 63 (Tex. App.--Texarkana 2000, no pet.) (observing that purpose of section 5B is to allow consolidation of all causes of action incident to an estate in statutory probate court to promote efficient administration of estates and judicial economy).   

    As Gonzalez and the dissent observe, a number of Texas courts which have construed section 5B as a jurisdictional statute that authorizes the transfer of cases relating to an estate, not only from the jurisdiction of a district court to that of a statutory probate court, but from one venue to another, trumping even mandatory venue provisions in the Civil Practice and Remedies Code. See In re Ramsey, 28 S.W.3d at 59-62 (addressing transfer of partnership proceeding from Lamar County District Court to Dallas County probate court); In Re J7S Inc., 979 S.W.2d 374, 378 (Tex. App.--Houston [14th Dist.] 1998, orig. proceeding) (addressing denial of transfer from Harris County probate court to Atascosa County district court of suit to recover real property despite mandatory venue provision in Civil Practice and Remedies Code); Lanier v. Stem, 931 S.W.2d 1, 2-3 (Tex. App.--Waco 1996, orig. proceeding) (addressing transfer from Robertson County district court to Travis County probate court of action against trustee of testamentary trust); Henry v. LaGrone, 842 S.W.2d 324, 327-28 (Tex. App.--Amarillo 1992, orig. proceeding) (addressing transfer of declaratory judgment action from Hartley County district court to Travis County probate court).  

    Gonzalez infers that the transfer of venue in each case is made under the power of the statutory probate court to transfer jurisdiction to itself to the exclusion of the jurisdiction of the district court. She cites, in particular, to the Amarillo Court of Appeals' holding in Henry that "[s]ection 5B of the probate code is not a venue statute," but a jurisdictional statute, whose purpose of consolidating all actions incident to an estate in the probate court would be thwarted "if that section did not authorize the statutory probate court to transfer to itself causes of action that were originally filed in proper venues." Henry, 842 S.W.2d at 327.

    It is immediately apparent, however, that the controlling distinction between this case and the cases cited by Gonzalez is that none of those cases were suits for wrongful death, personal injury or property damage. None of them dealt with section 15.007, in which the Texas Legislature specifically mentioned the Probate Code and said that, in three types of cases only--claims for "personal injury, death, or property damage" brought by or against the personal representative of an estate--the venue provisions in the Civil Practices and Remedies Code control over those in the Probate Code. Does this distinction matter?  

    Four of our sister courts of appeals have addressed the issue of whether a statutory probate court may transfer to itself a proceeding within the scope of section 15.007 pending in a district court in a different venue. One court construed sections 5A and 5B of the Probate Code, and three construed virtually identical language in section 608 of the Probate Code, governing guardianship proceedings. See In re Houston N.W. Partners, 98 S.W.3d 777 (Tex. App.--Austin 2003, orig. proceeding); Marathon Corp. v. Pitzner, 55 S.W.3d 114 (Tex. App.--Corpus Christi 2001, pet. filed) (construing section 608); In re Ford Motor Co., 965 S.W.2d 571 (Tex. App.--Houston [14th Dist.] 1997, orig. proceeding) (construing section 5B); DB Entm't, Inc. v. Windle, 927 S.W.2d 283, 288 (Tex. App.--Fort Worth, orig. proceeding) (construing section 608).

    In each of the cases decided prior to our original en banc opinion in this case, (2) the court held that the statutory probate court lacked authority under the Probate Code to transfer the wrongful death suit. In each, the court of appeals relied on language in section 5B or section 608 authorizing the probate court to transfer to it's jurisdiction only "a cause of action appertaining to or incident to an estate pending in the statutory probate court"; and each observed that the Supreme Court had held in Palmer that wrongful death actions are not matters "appertaining to an estate." In re Ford Motor Co., 965 S.W.2d at 575; DB Entm't, 927 S.W.2d at 286-87; see also Marathon Corp., 55 S.W.3d at 141 (holding that Dallas County statutory probate court lacked authority to transfer to itself personal injury suit brought on behalf of living person in Hidalgo County district court because (1) personal injury suits brought by guardian are not causes of action appertaining to guardianship estate, and (2) applicable version of section 608 of the Probate Code did not give statutory probate court authority to transfer actions by or against guardian, regardless of whether action was appertaining or incident to estate).  

    This Court previously considered and declined to follow the reasoning of In re Ford Motor Company and DB Entertainment in determining whether a legal malpractice claim could be transferred to a statutory probate court from a district court. Greathouse v. McConnell, 982 S.W.2d 165, 170-71 (Tex. App.--Houston [1st Dist.] 1998, pet. denied). We held that "the legislature amended section 5A in 1989 to grant probate courts concurrent jurisdiction over all actions brought by or against a personal representative, whether or not those claims standing alone would meet the definition of 'appertaining to or incident to' an estate." Id. at 171. We held that "a statutory probate court may properly transfer to itself any case brought by or against a personal representative of an estate, regardless of whether the claims meet the definition of 'appertaining to or incident to' an estate." Id. We further held that the probate court had jurisdiction to transfer the legal malpractice suit to itself. Id.

    In 1999, the legislature amended section 5B of the Probate Code. That section now plainly states that the judge of a statutory probate court

    may transfer to his court from a district . . . court a cause of action appertaining to or incident to an estate pending in the statutory probate court or a cause of action in which a personal representative of an estate pending in the statutory probate court is a party and may consolidate the transferred cause of action with the other proceedings in the statutory probate court relating to that estate.



    Tex. Prob. Code Ann. § 5B. Section 5B thus plainly permits a statutory probate court to transfer to its jurisdiction all causes of action in which a personal representative is a party, including wrongful death causes of action; and it also has been interpreted by many Texas courts as permitting not only transfer of jurisdiction, but also transfer of venue of proceedings related to probate proceedings. But this still leaves the question whether section 5B alone, or in conjunction with section 5A, authorizes the transfer of venue of wrongful death proceedings. Indeed, in our original en banc opinion in this case, we held that section 5B did not authorize transfer of a wrongful death action from a county of proper venue under the Civil Practice and Remedies Code to a county of improper venue under that Code.  

    In Houston Northwest Partners, however, the Third Court of Appeals expressly disagreed with our prior en banc holding in this case. 98 S.W.3d at 780. It reasoned that "the probate court below, and virtually every appellate court that has considered sections 5B or 608 of the probate code, deemed these transfer provisions to be jurisdictional statutes, not venue provisions that would be governed by section 15.007" and that "[a] plain reading of the probate code supports this majority view." Id. (emphasis in original). It observed that the parallel statute, section 608, was in the jurisdiction section of the Probate Code, not the venue section, and that section 15.007 "applies to conflicts with venue provisions under the Texas Probate Code." Id. (emphasis in original). Without considering the effect of its opinion on the function of sections 5A and 5B of the Probate Code or on the interpretation and applicability of section 15.007 of the Civil Practice and Remedies Code, the Third Court of Appeals held that the plaintiff's malpractice suit, which appertained to a guardianship estate and was brought in the plaintiff's capacity as guardian of a minor, was properly transferred from Harris County district court to the Travis County statutory probate court, in which the plaintiff initiated guardianship proceedings, apparently for the propose of transferring the malpractice suit from Harris County to Travis County. Id.

    Because section 5B is in the jurisdictional section of the Probate Code and, by its plain language, authorizes transfer of jurisdiction, Gonzalez and the dissent argue that it is a jurisdictional statute that itself establishes venue. However, section 5B also appears next to the venue provision of the Probate Code and has the characteristics of a venue statute as well as a jurisdictional statute. For example, the transfer of venue provision in the Texas Civil Practice and Remedies Code provides that "[f]or the convenience of the parties and witnesses and in the interest of justice, a court may transfer an action from a county of proper venue under this subchapter . . . to any other county of proper venue on motion of a defendant." Tex. Civ. Prac. & Rem. Code Ann.§ 15.002(b) (Vernon 2002) (emphasis added). Likewise, section 8 of the Probate Code, ("Concurrent Venue and Transfer of Proceedings") a venue statute, permits the transfer of estate proceedings "to the proper court in any other county in this State" when "it appears to the court at any time before the estate is closed that it would be in the best interest of the estate." Tex. Prob. Code Ann. § 8(c))(2) (Vernon 2003).

    The dual characteristics of section 5B authorizing transfer of both jurisdiction and venue support the argument that section 5B cannot properly be simply construed either as a jurisdictional statute or as a venue statute, but merely is a statue for the "transfer proceedings," as it caption indicates and as the majority concludes. The question still remains, however, whether section 5A of the Probate Code, which is clearly a jurisdictional statute, authorizes the probate court to determine venue of proceedings related to estate proceedings and whether, as a jurisdictional statute, it is beyond the control of section 15.007 of the Civil Practice and Remedies Code.

    Venue Under the Probate Code for Causes of Action Related to Proceedings Pending in Statutory Probate Courts



    Gonzalez contends that none of the venue provisions of the Probate Code apply to this case; therefore, none can be preempted by section 15.007. She points out that section 6 of the Probate Code ("Venue for Probate of Wills and Administration of Estates of Decedents")--the section the majority holds is preempted by section 15.007--by its plain language, determines venue for the probation of wills and the administration of estates (which necessarily include the underlying probate proceedings in this case), but that it does not determine venue for causes of action relating to the estate. See Tex. Prob. Code Ann. §6 (Vernon 2003). Likewise, she contends that section 8 of the Probate Code, ("Concurrent Venue and Transfer of Proceedings") pertains only to the proceedings set out in section 6 of the Code. See Robertson v. Gregory, 663 S.W.2d 4, 5 (Tex. App.--Houston [14th Dist.] 1983, no writ); Boyd v. Ratliff, 541 S.W.2d 223, 225-26 (Tex. App.--Dallas 1976, writ dism'd) ("We hold that the venue provisions of § 8 pertain only to the proceedings specifically set forth in §§ 6 and 7 and since the present suit for declaratory judgment by an independent executrix is not within either § 6 or § 7, § 8 is inapplicable").

    The majority, however, without addressing Gonzalez's and the dissent's arguments and authorities, holds that section 6 of the Probate Code fixes venue for matters "appertaining to an estate," hence for claims brought by a personal representative of the estate, in the county where the decedent resided; and, since section 6 is a venue provision, it is preempted in the case of wrongful death actions by section 15.007 of the Civil Practice and Remedies Code. Neither the plain language of section 6 nor the jurisprudence interpreting this section supports this assertion, however, as Gonzalez and the dissent observe. Section 6, by its plain language, pertains solely to the determination of venue for wills and letters testamentary and of administration, not related matters. See Tex. Prob. Code Ann § 6.   

    Nevertheless, Gonzalez's and the dissent's claim that no venue provision in the Probate Code determines venue for proceedings related to pending estate proceedings is simply incorrect. Gonzalez, the dissent, and the majority all overlook section 8(e) of the Probate Code. Section 8(e) ("Jurisdiction to Determine Venue") specifically provides that "[a]ny court in which there has been filed an application for proceedings in probate shall have full jurisdiction to determine the venue of such proceeding, and of any proceeding relating thereto, and its determination shall not be subject to collateral attack." Tex. Prob. Code Ann. § 8(e) (Vernon 2003) (emphasis added). Unlike section 6 of the Probate Code, which fixes venue only for the underlying probate proceedings, section 8(e) expressly confers jurisdiction on the probate court to determine venue for "proceedings relating" to proceedings in probate; and that section, by its plain language, does apply to Gonzalez's wrongful death action. (3)  

    By its caption and plain language, section 8(e) vests the court in which probate proceedings have been filed with jurisdiction to determine the venue of any proceeding relating to those probate proceedings. It is this provision--section 8(e) of the Probate Code--which, in this case, authorized the statutory probate court's exercise of its jurisdiction over matters related to Gonzalez's estate under section 5A of the Code to determine that venue for Gonzalez's wrongful death action lay in Hidalgo County, where estate proceedings were pending, and which authorized the exercise of the statutory probate court's transfer power under section 5B to transfer venue of Gonzalez's wrongful death suit from Harris County to Hidalgo County.

    As a venue statute in the Probate Code, however, section 8(e) is preempted by the plain language of section 15.007 of the Civil Practice and Remedies Code with respect to claims for personal injury, death, and property damage brought by or against a personal representative of an estate. Therefore, the transfer was improper, and venue for those cases must be determined under the Civil Practice and Remedies Code. Because the authority conferred on the statutory probate court under section 8(e) to determine and transfer venue of proceedings related to pending estate proceedings is preempted by section 15.007, transfer of Gonzalez's wrongful death action to Hidalgo County and maintenance of that action in the statutory probate court in that county are both improper.

    When section 5A of the Probate Code is construed as a jurisdictional provision that provides dominant jurisdiction in a statutory probate court over a district court of concurrent jurisdiction for matters related to an estate, when section 5B is construed as the applicable provision for transferring both jurisdiction and venue for matters relating to an estate pending in a statutory probate court, and when section 8(e) is recognized as the provision that empowers a statutory probate court to determine the venue of matters related to an estate pending in that court, the cases relied upon by Gonzalez fall into place. Although in each of those cases an action was transferred from a district court to a statutory probate court in a different venue, none dealt with a case subject to section 15.007. Since none of the cases cited by Gonzalez was within the scope of section 15.007, the venue provisions in the Probate Code controlled and authorized the statutory probate court to determine venue of the proceedings related to probate proceedings pending in that court. That is not the case here, where section 15.007 applies and preempts section 8(e), the venue statute that confers jurisdiction on the statutory probate court to determine venue for proceedings related to pending estate proceedings. (4)  

    I would hold that section 15.007 of the Texas Civil Practice and Remedies Code controls over section 8(e) of the Probate Code and that it thus precludes the exercise of a statutory probate court's jurisdiction to determine venue for a wrongful death action under section 5A of the Probate Code and that it precludes the transfer of a wrongful death action under section 5B of the Probate Code from a district court in a county of proper venue for those proceedings under the Civil Practice and Remedies Code to a county of improper venue under the Civil Practice and Remedies Code. Since venue for Gonzalez's wrongful death suit is improper in Hidalgo County under the Civil Practice and Remedies Code, the Hidalgo County statutory probate court is an improper forum for Gonzalez's wrongful death action. Transfer of venue of Gonzalez's wrongful death suit from Harris County to Hidalgo County was improper; and the Harris County district court erred in denying Reliant's motion to abate the Hidalgo County wrongful death proceedings.

    Section 15.007 of the Civil Practice and Remedies Code

    The conclusion that section 15.007 of the Civil Practice and Remedies Code trumps section 8(e) of the Probate Code and thus removes from the probate court the jurisdiction to determine venue for actions for personal injury, death, or property damage related to proceedings pending in a probate court is supported not only by the plain language of section 15.007 and its construction with sections 5A, 5B and 8(e)of the Probate Code, but also by the intent of the Texas Legislature in enacting section 15.007 in 1995. Tex. Civ. Prac. & Rem. Code Ann. § 15.007 (Vernon Supp. 2003) (added by Act of May 4, 1995, 74th Leg., R.S., ch. 138, § 1, sec. 15.007, 1995 Tex. Gen. Laws 978, 980).

    The effect of the 1995 statute has been described as follows:

    The 1995 Texas Legislature made substantial amendments and additions to the venue provisions of the Civil Practice and Remedies Code. The most important of these changes, for estate administration purposes, is that the determination of proper venue for an action by or against a personal representative for personal injury, death, or property damage is no longer made under the Probate Code, but rather under §15.007 of the Civil Practice & Remedies Code.



    17 Texas Practice, Probate and Decedents' Estates, § 11 (1971 & Supp. 2003). The intention of the legislature in enacting section 15.007 was to prevent forum shopping, as the Fort Worth Court of Appeals has observed:

    Forum shopping is against public policy, as reflected by the changes in venue law as part of last year's [1995] tort reform legislation. Particularly, section 15.007, which appears to be a legislative attempt to clarify and reiterate probate court jurisdiction over tort suits, prevents plaintiffs from . . . transferring such suits (forum shopping) to probate court in contravention of the venue statutes.



    DB Entm't, Inc., 927 S.W.2d at 288.

    By its plain language, section 15.007 has only one purpose: to remove the determination of proper venue for suits for wrongful death and survival from the Probate Code to the Civil Practice and Remedies Code. See 17 Texas Practice, Probate and Decedents' Estates, § 11 (1971 & Supp. 2003). The intent of this tort reform legislation was to "prevent[] plaintiffs from . . . transferring such suits (forum shopping) to probate court in contravention of the venue statutes." DB Entm't, Inc., 927 S.W.2d at 288. It could not effect this purpose if it did not control transfer of venue from counties of proper venue for wrongful death and survival suits under the Civil Practice and Remedies Code to counties of improper venue for such suits through the use of sections 5A and 5B of the Probate Code.

    Specifically, if section 15.007 does not apply to statutory probate courts, then it is ineffective to prevent transfer of venue in Texas' 10 most populous counties, as the dissent acknowledges--that is, all the counties in which section 15.007 is most likely to be invoked. Such an interpretation of section 15.007 is contrary both to the intent of the legislature in enacting it and to its plain language and leads to absurd results. We should not interpret a statute in a manner contrary to its plain language, purpose, and legislative intent, and in such a way as to render it meaningless. See Redmon, 745 S.W.2d at 316; Mueller, 994 S.W.2d at 860.   

    Estoppel and Anti-Suit Injunction

    Reliant contends not only that venue for Gonzalez's wrongful death suit is improper in Hidalgo County under sections 15.002 and 15.007 of the Civil Practice and Remedies Code, but that Gonzalez was forum shopping when she filed her wrongful death suit in Hidalgo County and opposed its transfer to Harris County, the county of proper venue, and that she was forum shopping when she filed an identical wrongful death suit in Harris County and immediately moved to transfer it to Hidalgo County. Reliant points out that it timely objected to venue in Hidalgo County; sought to transfer Gonzalez's wrongful death suit from the statutory probate court in that county to the district court in Harris County, the county of proper venue; fought transfer of venue from Harris County to Hidalgo County; and sought to abate the Hidalgo County proceedings--and that each time Gonzalez resisted.

    Reliant argues that forum shopping can constitute grounds for estoppel to assert dominant jurisdiction; deprive a court of dominant jurisdiction it would otherwise have had; and justify abatement of the proceedings in the county of improper venue. See Sweezy Constr., Inc. v. Murray, 915 S.W.2d 527, 532 (Tex. App.--Corpus Christi 1995, orig. proceeding) (recognizing estoppel to assert the dominant jurisdiction of a prior action arises from a variety of conduct, including "an affirmative representation to the second court that it has jurisdiction," as by filing suit in that jurisdiction); see also Perry, 66 S.W.3d at 252; Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247-48 (Tex. 1988) (first-filed rule does not apply if party's conduct estops him from asserting dominant jurisdiction); Howell v. Mauzy, 899 S.W.2d 690, 698 (Tex. App.--Austin 1994, writ denied) (noting that abatement of lawsuit due to pendency of previous lawsuit is based on comity, convenience, and necessity for orderly procedure; however, exception exists when party's conduct estops him from asserting dominant jurisdiction in another court). Therefore, Reliant argues, the Harris County district court should have enjoined the Hidalgo County proceedings.

    A suit in a court that has dominant jurisdiction is entitled to proceed to judgment, and the court of dominant jurisdiction may protect its jurisdiction by enjoining identical proceedings filed in another court. See Perry, 66 S.W.3d at 252; Gannon, 706 S.W.2d at 305. Accordingly, when the subject matter is the same in two pending lawsuits, a plea in abatement in the second action must be granted in the interests of comity, convenience, and the need for an orderly procedure in the trial of contested issues. Sweezy Constr., Inc., 915 S.W.2d at 531.

    Well-established equitable exceptions provide, however, that when a party who has filed suit in a particular forum has engaged in inequitable behavior that affects the choice of forum, the party who filed the first suit is estopped from asserting the dominant jurisdiction of the prior court, and the first-filed suit should be abated. See In re Pasadena Indep. Sch. Dist., 76 S.W.3d 144, 147 (Tex. App.--Amarillo 2002, orig. proceeding); Sweezy Constr., Inc., 915 S.W.2d at 531; 4M Linen & Uniform v. W.P. Ballard & Co., 793 S.W.2d 320, 322 (Tex. App.--Houston [1st Dist.] 1990, writ denied). If the second court determines that an exception to the general rule of abatement applies, it may assume dominant jurisdiction and proceed to judgment. Howell, 899 S.W.2d at 698.   

    Gonzalez attempted to circumvent the controlling venue statutes in both the Probate Code and the Civil Practice and Remedies Code by first filing her wrongful death suit in a county of improper venue under the Civil Practice and Remedies Code; then filing identical proceedings in Harris County district court, thus invoking the jurisdiction of that court; and then moving the Hidalgo County statutory probate court to transfer the properly filed Harris County proceedings to itself under the Probate Code.

    The dominant jurisdiction rule applies, however, only when both courts are proper forums for the suit. See Perry, 66 S.W.3d at 252. Here, because the venue provisions of the Probate Code are controlled by section 15.007 of the Civil Practice and Remedies Code, the statutory probate court lacked the jurisdiction conferred on it by section 8(e) of the Probate Code to determine venue for proceedings related to estate proceedings. See First State Bank of Bedias, 685 S.W.2d at 735-36. Therefore, there is only one proper forum for Gonzalez's wrongful death suit, the Harris County district court.  

    Accordingly, I would hold that the Hidalgo County statutory probate court lacked adequate jurisdiction to provide the relief sought and that the Harris County district court initially abused its discretion when it denied Reliant's application for an anti-suit injunction abating the Hidalgo County proceedings, and, in its subsequent order, properly granted the injunction.   

    Conclusion

    I would affirm the September 6, 2002 order of the Harris County district court granting Reliant's application for an anti-suit injunction.





    Evelyn V. Keyes

    Justice



    Panel consisted of Justices Mirabal, (5) Taft, and Smith (6) on original submission of cause number 01-02-00679-CV.



    En banc consideration was requested. Tex. R. App. P. 41.2©).



    A majority of the Court voted for en banc consideration.  



    The en banc Court, on original submission of cause number 01-02-00679-CV, consisted of Justices Mirabal, Taft, Nuchia, Jennings, Radack, Keyes, Alcala, and Smith.



    Justice Mirabal, writing for the majority of the en banc Court on original submission of cause number 01-02-00679-CV, joined by Justices Nuchia, Jennings, Radack, Keyes, and Alcala.



    Justice Smith, joined by Justice Taft, dissenting on original submission of cause number 01-02-00679-CV.



    Chief Justice Schneider (7) and Justice Hedges, not participating on original submission of cause number 01-02-00679-CV.



    Motion for rehearing was filed in cause number 01-02-00679-CV.



    A majority of the en banc Court voted to deny the motion for rehearing.



    The en banc Court on rehearing of cause number 01-02-00679-CV and on original submission of cause number 01-02-01054-CV consists of Chief Justice Radack and Justices Hedges, Taft, Nuchia, Jennings, Keyes, Alcala, Mirabal, and Smith.



    Justice Jennings, writing for a majority of the en banc Court on rehearing of cause number 01-02-00679-CV and on original submission of cause number 01-02-01054-CV, joined by Chief Justice Radack and Justices Hedges, Nuchia, and Alcala.



    Justice Keyes, concurring on rehearing of cause number 01-02-00679-CV and on original submission of cause number 01-02-01054-CV.



    Justice Mirabal, dissenting on rehearing of cause number 01-02-00679-CV and on original submission of cause number 01-02-01054-CV, joined by Justices Taft and Smith.



    Justice Smith, dissenting on rehearing of cause number 01-02-00679-CV and on original submission of cause number 01-02-01054-CV, joined by Justice Taft.



    Justices Hanks and Higley, not participating on rehearing of cause number 01-02-00679-CV or on original submission of cause number 01-02-01054-CV.

    1. It did not become clear that probate courts had concurrent jurisdiction over wrongful death and survival claims until 1992, when the Texas Supreme Court issued its opinion in the Palmer case. See Palmer, 851 S.W.2d at 181 (stating that, even though legislature amended section 5A of the Probate Code in 1985 to give probate courts jurisdiction of such claims, many courts of appeals continued to hold probate courts had no such jurisdiction).

    2. Issued September 6, 2002.

    3. The language in

    Boyd, holding that "the venue provisions of § 8 pertain only to the proceedings specifically set forth in §§ 6 and [now repealed] 7" need not be construed as being at odds with this conclusion or the plain language of section 8(e), since the power of the probate court to determine venue of proceedings relating to probate proceedings, set out in section 8(e), is predicated on the power of that court to determine the venue of the underlying probate proceeding, also set out in section 8(e).

    4. In

    Herring v. Welborn, 27 S.W.3d 132 (Tex. App.--San Antonio 2000, pet. denied), the Fourth Court of Appeals considered the issues of venue and jurisdiction under section 5A and 5B of the Probate Code in a suit regarding the sale of community property. It held that, once a probate proceeding is underway, the statutory probate court's probate jurisdiction over continuing administration of the estate exists to the exclusion of district court jurisdiction in matters "incident to the estate," and that "[t]his jurisdictional requirement 'trumps' the venue provision of bringing suit in the county where the land is located." Id. at 140-41. It further stated that "[a] jurisdictional requirement (such as that contained in the Probate or Tax Codes) takes precedence over a venue requirement." Id. at 141. The court cited no authority for the proposition that jurisdiction trumps venue, and, to the extent it implies that a court may dispense with venue so long as jurisdiction is proper, I disagree.

    5. The Honorable Margaret Garner Mirabal, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

    6. The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

    7. The Honorable Michael H. Schneider, former Chief Justice, Court of Appeals, First District of Texas at Houston, resigned from this Court effective September 6, 2002.