                                                                                     ACCEPTED
                                                                                12-15-00058-CV
                                                                    TWELFTH COURT OF APPEALS
                                                                                 TYLER, TEXAS
                                                                          3/19/2015 12:37:33 AM
                                                                                   CATHY LUSK
                                                                                         CLERK

                      NO. 12-15-00058-CV

                                                              FILED IN
                                                       12th COURT OF APPEALS
                                                            TYLER, TEXAS
                        IN THE                         3/19/2015 12:37:33 AM
               TWELFTH COURT OF APPEALS                     CATHY S. LUSK
                                                                Clerk
                     TYLER, TEXAS



     IN RE JEANETTE B. DAVIDSON, INDIVIDUALLY AND AS
    INDEPENDENT EXECUTRIX OF THE ESTATE OF GARY L.
                  DAVIDSON, DECEASED,
                                         RELATOR
____________________________________________________

         Original Proceeding from Cause No. 15063 in the
         County Court at Law, Anderson County, Texas
____________________________________________________

            On Petition for Writ of Mandamus to the
         County Court at Law of Anderson County, Texas



      RESPONSE TO PETITION FOR WRIT OF MANDAMUS



                                   Jeffrey L. Coe
                                   State Bar No. 24001902
                                   1000 N. Church St.
                                   P.O. Box 1157
                                   Palestine, Texas 75802-1157
                                   (903) 723-0331 Telephone
                                   (888) 651-6851 Fax
                                   Email: jeff@coelawfirm.com
                                   Attorney for Real Party in Interest

               ORAL ARGUMENT NOT REQUESTED
                                                    TABLE OF CONTENTS


TABLE OF CONTENTS ................................................................................................. ii

INDEX OF AUTHORITIES........................................................................................... iii

ISSUES PRESENTED...................................................................................................... 1

STATEMENT REGARDING ORAL ARGUMENT ....................................................... 1

STATEMENT OF FACTS ............................................................................................... 1

SUMMARY OF THE ARGUMENT ............................................................................... 2

ARGUMENT ................................................................................................................... 3

           1. The Court should deny mandamus relief because Relator does not have

                standing to challenge venue of the probate proceeding .................................. 3

           2. Alternatively, the Court should deny mandamus relief because Relator’s

                request for transfer of venue was not timely asserted and was waived .......... 5

PRAYER ........................................................................................................................... 5

SIGNATURE OF COUNSEL ......................................................................................... 6

CERTIFICATE OF COMPLIANCE ............................................................................... 7

CERTIFICATE FOR FACTUAL STATEMENTS .......................................................... 8

CERTIFICATE OF DELIVERY ...................................................................................... 9

APPENDIX .....................................................................................................................10




                                                                       ii
                                        INDEX OF AUTHORITIES

CASES:

     Abrams v. Ross’ Estate,
           250 S.W. 1019, 1021 (Tex. Comm’n App. 1923)..................................... 3

     City of Dallas v. Woodfield,
             305 S.W.3d 412, 416 (Tex.App.—Dallas 2010, no pet.).......................... 3

     Crowson v. Wakeham,
           897 S.W.2d 779, 783 (Tex. 1995)............................................................. 5

     Daimler Chyrsler Corp. v. Inman,
           252 S.W.3d 299, 304 (Tex. 2008)............................................................. 3

     Estate of Padilla,
            103 S.W.3d 563, 566 (Tex.App.—San Antonio 2003, no pet.) ................ 5

     Griffin v. Wolfe,
             610 S.W.2d 466, 466 (Tex. 1980)............................................................. 5

     In re Estate of Wooten,
             Case No. 12-10-00276-CV (Tex.App.—Tyler 2012) ............................... 5

     In re Hudson,
            325 S.W.3d 811 (Tex.App.—Dallas 2010, no pet.) .................................. 6

     Interfirst Bank-Houston, N.A. v. Quintana Petroleum Corp.,
             699 S.W.2d 864, 874 (Tex.App.—Houston
             [1st Dist.] 1985, writ ref’d n.r.e.) ............................................................... 6

     Jarvis v. Field,
             327 S.W.3d 918 (Tex.App.—Corpus Christi 2010) ................................. 6

     Tex. Ass’n of Bus. V. Tex. Air Control Bd.,
            852 S.W.2d 440, 445-446 (Tex. 1993) ..................................................... 3

     Womble v. Atkins,
          160 Tex. 363, 331 S.W.2d 294, 296 (1960).............................................. 3

STATUTES:

     Texas Probate Code § 3(r) ................................................................................ 4, 5

     Texas Probate Code § 8A(a) ................................................................................. 4



                                                            iii
Texas Probate Code § 145(h) ............................................................................ 1, 4




                                                      iv
                                         ISSUES PRESENTED

       1.      Whether Relator had standing to file a motion to transfer venue when the only

pleading filed was a motion to transfer venue and no other underlying claim, cause of action, or

request of the court.

       2.      Whether Relator timely filed a motion to transfer venue following the admission

of a will to probate and issuance of letters testamentary and when the court order required that no

other action be taken in the court other than the filing of the Inventory, Appraisement and List of

Claims in accordance with the Texas Probate Code section 145(h).

                        STATEMENT REGARDING ORAL ARGUMENT

       Real Party in Interest does not request oral argument and believes that argument would

not be helpful in assisting the Court.

                                    STATEMENT OF FACTS

       On July 24, 2012, Benjamin Stone Haynes filed an Application to Probate Will and for

Issuance of Letters Testamentary. (Relator’s Tab 3) On August 8, 2012, the Honorable Jeff

Doran entered an Order Probating Will and Authorizing Letters Testamentary. (Relator’s Tab 6)

The Inventory, Appraisement and List of Claims was filed with the court on October 15, 2012.

(Relator’s Tab 7) On October 26, 2012, Relator filed a Motion to Transfer Venue claiming that

venue was improper in Anderson County, Texas but failing to state how Relator had an interest

in the estate. (Relator’s Tab 8) Ben Haynes, as Independent Executor of the Estate of Stone

Haynes, Deceased, filed a Response to Defendant’s Motion to Transfer Venue. (Relator’s Tab 9)

At the time the motion to transfer was filed and at all times subsequent to its filing, there was no

request for relief pending before the trial court and nothing for the trial court to consider other

than the motion to transfer venue filed by Relator. A hearing was held on the motion and




                                                 1
response thereto, and the trial court signed an Order Denying Defendant’s Motion to Transfer

Venue on February 10, 2015. (Relator’s Tab 18) Relator has included numerous items in the

Appendix that were not part of Cause Number 15,063 and are outside the record, including but

not limited to Tab 20 Petition in Cause No. 11,953, Tab 22 Motion to Transfer Venue in Cause

No. 11,953, Tab 23 Defendant’s Answer in Cause No.. 11,953, Tab 24 Amended Reply to Ben

Haynes’ Response to Defendants’ Motion to Transfer Venue in Cause No. 11,953, Tab 25

Response to Defendant’s Motion to Transfer Venue in Cause No. 11,953, Tab 26 Amended

Motion to Transfer Venue in Cause No. 11,953, and Tab 27 Second Amended Petition in Cause

No. 11,953.

                                    SUMMARY OF ARGUMENT

       The trial court did not abuse its discretion when it entered the order denying Relator’s

request to transfer venue since Relator did not have standing to bring the motion to transfer

venue and never established that Relator was an interested party and had a right to participate in

Cause Number 15,063.

       Alternatively, the request for transfer was not timely and therefore waived since the phase

of the proceeding relating to admission of the will to probate was completed and there was no

other relief pending before the court at the time of the filing the motion to transfer venue, nor

since the filing the of the motion to transfer venue. Relator would have been required to file the

motion prior to entry of the final, appealable order which was the order probating will and

authorizing letters testamentary.




                                                2
                                         ARGUMENT

       1.      Relator Lacked Standing to File a Motion to Transfer Venue

       To bring a claim or request for some type of relief, a party must have standing. Daimler

Chyrsler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008). The Texas Supreme Court has

stated “It is not the policy of the State of Texas to permit those who have no interest in a

decedent’s estate to intermeddle therein.” Womble v. Atkins, 160 Tex. 363, 331 S.W.2d 294, 296

(1960). The Texas Supreme Court in discussing general standing requirements stated that “To

hold that Inman, Castro, and Wilkins have standing would drain virtually all meaning from the

requirements that a plaintiff must be ‘personally aggrieved’ and that his injury must be ‘concrete’

and ‘actual or imminent.” Daimler Chrysler at 304. Standing cannot be waived and may be

examined on appeal sua sponte if necessary. Tex. Ass’n of Bus. V. Tex. Air Control Bd., 852

S.W.2d 440, 445-446 (Tex. 1993). Reviewing the Motion to Transfer Venue filed by Relator on

October 26, 2012 shows no facts asserting an interest in the estate of the decedent. Standing

requires that a controversy continue to exist between the parties at every stage of the legal

proceedings, including the appeal.      City of Dallas v. Woodfield, 305 S.W.3d 412, 416

(Tex.App.—Dallas 2010, no pet.). The court in Abrams v. Ross’ Estate held that “…the burden

is on every person appearing to oppose the probate of a will to allege, and if required, to prove

that he has some interest in the estate of the testator which will be affected by such will if

admitted to probate.” 250 S.W. 1019, 1021 (Tex. Comm’n App. 1923). The court went on to

characterize someone who lacked the ability to demonstrate that interest in the estate as a “mere

meddlesome intruder.” Id. Real Party in Interest contends that Relator has done exactly that,

intruded upon this proceeding in which Relator has absolutely no interest. In the case before this

Honorable Court, there was no controversy existing between the parties in regard to the




                                                3
independent administration of the estate of the Decedent. Relator filed a motion to transfer

venue without asserting any justiciable claim before the trial court and now asks this Court to

find that the trial court clearly abused its discretion.        The request for transfer was not

accompanied by nor did it include any claim by any beneficiary of the estate, no claim by a

creditor of the estate, no claim for any homestead rights, or requests to set aside exempt property.

What exactly is Relator contending the responsibility of the receiving court would be in the event

this Court granted the relief and transferred the case to San Augustine County? There are no

pending motions. No pending applications. No requests for affirmative relief that have been

asserted in this case before the Court. As shown below, the order admitting the will to probate

and granting letters testamentary was a final order in every sense of the word.

       Texas Probate Code § 8A(a) recited by Relator states that an interested party may file a

request for transfer. The Texas Probate Code § 3(r) defined “interested persons” as “heirs,

devisees, spouses, creditors, or any others having a property right in, or claim against, the estate

being administered; and anyone interested in the welfare of an incapacitated person, including a

minor.” Relator has never established standing as an interested person in the Estate of Stone

Haynes, Deceased. Relator fails to set forth in this request for mandamus how Relator is 1) an

heir; 2) a devisee; 3) spouse; 4) creditor; 5) having a property right in, or claim against the estate

being administered. No claim was ever tendered against the estate in accordance with the

respective Texas Probate Code sections regarding claim presentment. Relator was not a party

entitled to citation under the Texas Probate Code and was not entitled to any type of notice

regarding the hearing on probate of the will. Texas Probate Code § 145(h) states that “When an

independent administration has been created, and the order appointing an independent executor

has been entered by the county court, and the inventory, appraisement, and list aforesaid has




                                                  4
been filed by the executor and approved by the county court or an affidavit in lieu of the

inventory, appraisement, and list of claims has been filed by the executor, as long as the estate is

represented by an independent executor, further action of any nature shall not be had in the

county court except where this Code specifically and explicitly provides for some action in the

county court.”

       This Honorable Court previously addressed the issue of what constitutes a final

appealable order in In Re Estate of Wooten. Case No. 12-10-00276-CV (Tex.App.—Tyler 2012).

This Court found that since the trial court addressed all of the relief requested in the pending

application and the court’s order had disposed of that phase of the proceeding, the order was a

final and appealable order. citing Estate of Padilla, 103 S.W.3d 563, 566 (Tex.App.—San

Antonio 2003, no pet.) and Griffin v. Wolfe, 610 S.W.2d 466, 466 (Tex. 1980). The only phase

that existed in this case was the application for probate and issuance of letters testamentary and

the order granting probate and issuance of letters testamentary. There were never any other

requests for relief asserted by anyone, including Relator. Relator has no justiciable interest in the

estate, nor did Relator meet the required definition of an “interested party” under the Texas

Probate Code section 3(r). The request for mandamus should be denied as a result of Relator’s

lack of standing to have filed the motion to transfer venue in the probate matter.

       2.        Alternatively, Relator’s Motion to Transfer Venue Was Not Timely Filed

Since a Final, Appealable Order was Entered by the Trial Court.

       Even if Relator was able to meet the threshold question of having a right to assert a

request to transfer venue, the motion was waived as a result of the untimeliness of its filing.

There were no issues raised that remained before the court and there were no parties that were

not disposed of. Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995). In order for the




                                                 5
request for transfer to have been timely, it should have been made prior to entry of the final

appealable order. Jarvis v. Field, 327 S.W.3d 918 (Tex.App.—Corpus Christi 2010). Although

the court in Jarvis was dealing with a pro se litigant that failed to file a motion to transfer at all,

the underlying rule enunciated applies: failure to timely object to venue waives the complaint. Id.

The Dallas Court of Appeals states that when an order in a probate case disposes of all of the

claims and parties at a particular phase of the proceedings, it is an appealable order. In re

Hudson, 325 S.W.3d 811 (Tex.App.—Dallas 2010, no pet.). The court went on to state “In this

case, the trial court’s order admits the will to probate, appoints real party in interest as

independent executrix, and states that no other action shall be had in the probate court other than

the return of an inventory, appraisement, and list of claims. We find this order has ‘sufficient

attributes of finality to confer appellate jurisdiction…” Id.      Furthermore, there is no specific

requirement under Texas law for an express order closing an estate. The court in Interfirst Bank-

Houston, N.A. v. Quintana Petroleum Corp. states that “[s]ince closing procedures provided by

Section 151 and 152 are not mandatory, the final distribution of an estate’s assets after all debts

and claims against the estate are paid results in the closing of the estate.” 699 S.W.2d 864, 874

(Tex.App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). All business involving the Estate of

Stone Haynes, Deceased, was complete and there was no further need of any action in the court.

                                              PRAYER

        WHEREFORE Real Party in Interest prays that upon consideration hereof this

Honorable Court deny Relator’s petition for writ of mandamus and grant any and all further

relief to which Real Party in Interest is legally entitled.

                                                Respectfully submitted,


                                                By:/s/ Jeffrey L. Coe



                                                   6
                                                       Jeffrey L. Coe
                                                       Attorney at Law
                                                       State Bar No. 24001902
                                                       1000 N. Church St.
                                                       P.O. Box 1157
                                                       Palestine, TX 75802-1157
                                                       Tel. (903) 723-0331
                                                       Fax. (888) 651-6821
                                                       Email: jeff@coelawfirm.com
                                                       Attorney for Real Parties in Interest


                              CERTIFICATE OF COMPLIANCE

       COMES NOW, Jeffrey L. Coe, Attorney for Relator, and hereby certifies that the

Response to Petition for Writ of Mandamus contains 2,565 words including the caption, table of

contents, index of authorities, statement of the case, issues presented, statement regarding oral

argument, statement of facts, summary of the argument, argument, signature, certificate for

factual statements, and certificate of delivery.

                                                       /s/ Jeffrey L. Coe
                                                       Jeffrey L. Coe,
                                                       Attorney at Law




                                                   7
                     CERTIFICATE FOR FACTUAL STATEMENTS

       Pursuant to Rule 52.3(j) and Rule 52.4 of the Texas Rules of Appellate Procedure, I

certify that I have reviewed the response and have concluded that every factual statement made

in the response is supported by competent evidence included in the appendix or record.

                                                   /s/ Jeffrey L. Coe
                                                   Jeffrey L. Coe,
                                                   Attorney for Real Party in Interest




                                               8
                             CERTIFICATE OF DELIVERY

       A true and correct copy of the foregoing instrument has been served in accordance with

the Texas Rules of Appellate Procedure via Hand Delivery, Email Delivery, and/or Fax Delivery

on this the 19th day of March, 2015, upon the following:

       VIA HAND DELIVERY
       Honorable Jeff Doran
       County Court at Law of Anderson County
       500 N. Church St.
       Palestine, Texas 75801

       VIA EMAIL AND FAX DELIVERY
       Thomas R. McLeroy, Jr.
       P.O. Box 668
       Center, Texas 75935
       (936) 598-2701
       (936) 598-6086 Fax
       Email: mcleroylaw@sbcglobal.net

                                                  /s/ Jeffrey L. Coe
                                                  Jeffrey L. Coe,
                                                  Attorney at Law




                                             9
