                                                                             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.

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