Opinion
No. 01-02-00679-CV
Opinion issued September 6, 2002
On Appeal from the 113th District Court, Harris County, Texas, Trial Court Cause No. 2002-21820
EN BANC OPINION
This is an accelerated, interlocutory appeal from the denial of an application for an anti-suit injunction. This case addresses the scope of a statutory probate court's jurisdiction. We reverse.
Factual Background and Procedural History
Jannete Gonzalez is the surviving widow and dependent administrator of the estate of her late husband, Guadalupe Gonzalez, Jr., who was killed August 24, 2001, while working at a Reliant Energy power plant in Houston, Texas. The following time line of events is relevant to the disposition of this case.
September 28, 2001 — Gonzalez filed a wrongful death and survival lawsuit against Reliant in Hidalgo County probate court, where her husband's estate was being probated.
October 26, 2001 — Reliant filed a motion to transfer venue of the wrongful death and survival suit to Harris County.
December 13, 2001 — Reliant's motion to transfer venue was denied.
Reliant sought mandamus relief from the Corpus Christi Court of Appeals, and its was denied without opinion. In Re Reliant Energy, Inc., No. 13-02-00073-CV (Tex.App.-Corpus Christi, February 1, 2002). We note that, as a general rule, non-mandatory venue determinations are not reviewable by mandamus. In re Missouri Pac. R.R. Co, 998 W.W.2d 212, 215-16 (Tex. 1999).
April 29, 2002 — Gonzalez filed in a Harris County district court, a lawsuit that asserted the identical claims and sought the same relief as the previously filed Hidalgo County wrongful death and survival lawsuit.
May 9, 2002 — In Hidalgo County, Gonzalez filed an "administrator's motion to transfer and consolidate" the Harris County lawsuit with the Hidalgo County case, pursuant to Section 5B of the Probate Code.
May 10, 2002 — The probate court set a hearing for Gonzalez's transfer and consolidation motion for June 19, 2002.
May 16, 2002 — Reliant filed an answer to the Harris County lawsuit and asserted a counterclaim asking the court for an anti-suit injunction, which would prevent Gonzalez from prosecuting the Hidalgo County action.
May 16, 2002 — The district court set a hearing on Reliant's request for an anti-suit injunction for June 3, 2002.
May 20, 2002 — Gonzalez amended her motion to transfer and consolidate, advising the Hidalgo County probate court of the upcoming hearing in the Harris County district court.
May 20, 2002 — The Hidalgo County probate court rescheduled the June 19, 2002 hearing for May 30, 2002.
May 22, 2002 — Reliant sought a temporary restraining order in the Harris County district court in order to prevent Gonzalez from proceeding with her motion to transfer and consolidate until after the June 3 temporary injunction hearing in Harris County.
May 23, 2002 — Judge Hanks, sitting as the ancillary judge for the Harris County district courts, granted Reliant's request for a temporary restraining order.
The TRO ordered Gonzalez not to set a hearing on her motion to transfer and consolidate until after the June 3 hearing, it also commanded Gonzalez to contact the Hidalgo County probate court and have the May 30 hearing rescheduled to a later date.
May 23, 2002 — In the Hidalgo County probate court, Reliant filed a motion to abate.
May 28, 2002 — In Hidalgo County, Gonzalez filed a "Request to Pass the May 30, 2002 Hearing on Second Motion to Transfer and Consolidate and Have the Hearing Rescheduled until after June 3, 2002."
May 29, 2002 — Reliant filed a "Motion to Continue Administrator's Motion to Transfer" with the Hidalgo County probate court.
May 30, 2002 — The Hidalgo County probate court held a hearing on Gonzalez's motion to transfer and consolidate as well as Reliant's motion for continuance and abatement. The court signed a "Transfer of Proceeding Order" that transferred and consolidated the Harris County case with the Hidalgo County case. Reliant's motions for continuance and abatement were denied.
Reliant attempted to mandamus the trial judge for signing the transfer order in the Corpus Christi Court of Appeals, but it was denied on July 23, 2002.
June 3, 2002 — Harris County District Court Judge Patricia Hancock held a hearing on Reliant's application for a temporary injunction.
June 26, 2002 — Reliant's request for temporary injunction was denied.
On appeal, Reliant presents the following issue: Did the Harris County district court abuse its discretion in failing to issue a temporary injunction to protect its dominant jurisdiction from identical proceedings in the Hidalgo County probate court and to prevent Gonzalez's attempt to circumvent the anti-forum shopping policies behind the venue statutes?
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 what is called an "anti-suit injunction." Gannon v. Payne, 706 S.W.2d 304, 305 (Tex. 1986). The general rule is that, when a suit is filed in a court of competent jurisdiction, in an appropriate case 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. Id. at 305-306.
Standard of Review
The decision to grant or deny an anti-suit injunction 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).
Conflict
As a general rule, when cases involving the same subject matter are brought in different courts, the court with the first-filed case has dominant jurisdiction and should proceed, and the other case should abate. Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001). This rule applies when both courts are proper forums for the suit. Id.
In this case, both the Harris County district court and the Hidalgo County probate court had subject matter jurisdiction over Gonzalez's wrongful death claim. See Palmer v. Coble Wall Trust Co., Inc., 851 S.W.2d 178, 182 (Tex. 1992) (probate courts have jurisdiction over wrongful death and survival actions); Tovias v. Wildwood Properties Partnership, L.P., 67 S.W.3d 527, 529 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (holding district courts and probate courts have concurrent subject matter jurisdiction over wrongful death actions, and that neither court has exclusive jurisdiction); Tex. Prob. Code Ann. § 5A (c)(1) (Vernon Supp. 2002) ("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. . .").
Under the general venue statute, Harris County is a county of proper venue because Reliant's principal place of business is in Harris County, and Reliant timely asserted its right to be sued in Harris County. See Tex. Civ. Prac. Rem. Code Ann. § 15.002 (a) (Vernon Supp. 2002). Hidalgo County is not a county of proper venue under the venue provisions of the Civil Practice and Remedies Code. However, the Hidalgo County probate court ruled that it was the proper forum for this litigation under sections 5A and 5B of the Probate Code. Tex. Prob. Code Ann. §§ 5A, 5B (Vernon Supp. 2002).
The issue in this case is the proper construction to be given to seemingly conflicting provisions of the Probate Code and the Texas Civil Practice and Remedies Code.
Rules of 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). 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 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, 994 S.W.2d 855, 860 (Tex.App.-Houston [1st Dist.] 1999, no pet.).
Statutory Provisions
Gonzalez argues that the following Probate Code provisions control, and that the case should be tried in the Hidalgo County probate court:
Section 5A(b)
. . . 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.
The phrases "appertaining to estates" and "incident to an estate" include all claims by or against an estate. Tex. Probate Code Ann. § 5A(b) (Vernon Supp. 2002).
Tex. Prob. Code Ann. § 5A(b) (Vernon Supp. 2002).
Section 5B
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 (emphasis added).
Reliant argues that, because this is a suit by an executor for wrongful death , the venue provisions of the Civil Practice and Remedies Code control over the provisions of the Probate Code, and the suit must remain in the Harris County district court. Section 15.007 states in relevant part:
[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 (Vernon Supp. 2002) (emphasis added). It is Reliant's position that, by enacting section 15.007, the legislature has carved out three exceptions to the general rule that claims by an estate must be brought in probate court.
Thus, the determinative issue presented is whether sections 5A and 5B of the Probate Code provide for "dominant jurisdiction" of this wrongful death action in the probate court, or whether these provisions are subject to the limiting language of section 15.007 of the Civil Practice and Remedies Code. We note that this Court in Tovias specifically held that probate courts do not have "exclusive" subject matter jurisdiction over wrongful death lawsuits. 67 S.W.3d at 529.
Analysis
"Jurisdiction" deals with the power of a court to determine an action involving a particular subject matter as between the parties and to render a certain judgment. See National Life Co. v. Rice 167 S.W.2d 1021, 1024 (1943); 2 McDonald, Texas Civil Practice, § 6:2 (1992). "Venue" deals with the propriety of prosecuting a suit involving a given subject matter and specific parties in a particular county. See National Life, 167 S.W.2d at 1025; 2 McDonald, Texas Civil Practice at § 6:2. The principal distinction is that the parties cannot waive a lack of jurisdiction of the subject matter, but either may waive a rule of venue favorable to itself. Nipper v. U-Haul Co. of San Antonio, 516 S.W.2d 467, 470 (Tex.App.-Beaumont 1974, no writ); 2 McDonald, Texas Civil Practice, § 6:2 (1992).
It did not become clear that probate courts have 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 the 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). After the clarification in 1992, the Texas legislature, in 1995, passed into law section 15.007 of the Civil Practice and Remedies Code that deals strictly with three types of lawsuits, "for personal injury, death, or property damage." When suit is brought by an executor or administrator "for personal injury, death, or property damage," the venue provisions of chapter 15 of the Civil Practice and Remedies Code control over conflicting venue provisions under the Probate Code. Tex. Civ. Prac. Rem. Code Ann. § 15.007 (Vernon Supp. 2002) ( added by Act May 4, 1995, 74th Leg., R.S., ch. 138, § 1, sec. 15.007, 1995 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. 2002).
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 Entertainment, Inc. v. Windle, 927 S.W.2d 283, 288 (Tex.App.-Fort Worth 1996, orig. proceeding).
We note that this court, in Greathouse v. McConnell, was critical of other portions of the opinion in DB Entertainment, but we did not address the statements about Section 15.007; Greathouse did not involve wrongful death and survivor claims. Greathouse v. McConnell, 982 S.W.2d 165, 169-71 (Tex.App.-Houston [1st Dist.] 1998, pet. denied).
In the present case, Reliant preserved its right under the venue statute to have suit brought in Harris County, and Gonzalez subsequently filed suit in Harris County.
This case is distinguishable from cases such as In re Ramsey, Lanier v. Stem, and Henry v. LaGrone in which the courts held that certain venue provisions under the Civil Practice and Remedies Code were trumped by the transfer provision of section 5B of the Probate Code. The controlling difference is that none of those cases were suits for wrongful death, personal injury or property damage. None of those cases dealt with Section 15.007, in which the Texas legislature specifically mentioned the Probate Code and said that in three types of cases only, suits for "personal injury, death, or property damage," the proper county for suit was to be determined in accordance with the Civil Practices and Remedies Code, not the Probate Code.
In re Ramsey, 28 S.W.3d 58, 59-60 (Tex.App.-Texarkana 2000, no pet.); Lanier v. Stem, 931 S.W.2d 1, 2-3 (Tex.App.-Waco 1996, orig. proceeding); Henry v. LaGrone, 842 S.W.2d 324, 327 (Tex.App.-Amarillo 1992, orig. proceeding).
We conclude that, because this is a wrongful death suit, section 15.007 controls. To hold otherwise would render section 15.007 meaningless, and, under established rules of statutory construction, we should not adopt a construction that would render a law absurd or meaningless. See Redmon, 745 S.W.2d at 316; Mueller, 994 S.W.2d at 860.
We are aware that our sister court has expressed a contrary view in dicta in In Re J7S Inc., but that case was for recovery of land and not for personal injury, death, or property damage; the court correctly held that Section 15.007 was inapplicable. In Re J7S Inc., 979 S.W.2d 374, 378 (Tex.App.-Houston [14th Dist.] 1998, orig. proceeding).
Conclusion
We hold that Section 15.007 of the Texas Civil Practice and Remedies Code precludes the transfer of this wrongful death suit to the Hidalgo County probate court. Although the Hidalgo County probate court has concurrent jurisdiction with the Harris County district court, the Hidalgo County probate court does not have dominant jurisdiction because it is not a "proper forum" for the suit in light of Reliant's assertion of its right to be sued in Harris County. See Perry, 66 S.W.3d at 252 (stating that, when cases involving the same subject matter are brought in different courts with concurrent jurisdiction, we look to whether both courts are proper forums for the suit in determining which has dominant jurisdiction).
Accordingly, the Harris County district court abused its discretion when it denied Reliant's application for an anti-suit injunction. We reverse the order of the trial court and remand this cause to the trial court with instructions to grant the temporary injunction in keeping with this opinion.
All pending motions are denied as moot.
Justice Mirabal dissented from the panel's decision to affirm the trial court's order.
En banc consideration was requested. Tex.R.App.P. 41.2(c).
A majority of the Court voted for en banc consideration of the panel's decision. See id.
The en banc Court consists of Justices Mirabal, Taft, Nuchia, Jennings, Radack, Keyes, Alcala, and Smith.
Justice Mirabal, writing for the majority of the en banc Court, joined by Justices Nuchia, Jennings, Radack, Keyes, and Alcala. See Tex.R.App.P. 47.5.
Justice Smith, joined by Justice Taft, dissenting from the judgment of the en banc Court. See id.
Chief Justice Schneider and Justice Hedges not participating. See id.
I dissent. In my opinion, the trial court properly denied the application for an anti-suit injunction.
Dominant Jurisdiction
As a general rule, if two lawsuits concerning the same controversy and parties are pending in courts of coordinate jurisdiction, the court in which suit was "first filed" acquires "dominant jurisdiction" to the exclusion of the other court. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988); Clawson v. Millard, 934 S.W.2d 899, 900 (Tex.App.-Houston [1st Dist.] 1996, orig. proceeding).
In this case, both the Harris County district court and the Hidalgo County probate court had subject matter jurisdiction over Gonzalez's wrongful death claim. Tovias v. Wildwood Properties Partnership, L.P., 67 S.W.3d 527 (Tex.App.-Houston [1st Dist.] 2002, no pet.); see also Tex. Prob. Code Ann. § 5A (Vernon Supp. 2002) ("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. . ."). Therefore, because Gonzalez filed her lawsuit in Hidalgo County first, that court acquired dominant jurisdiction over the case. Wyatt, 760 S.W.2d at 248.
However, there are three exceptions to the "first filed" rule, one of which Reliant claims applies to this case. Under the first exception, the Hidalgo County court will not have dominant jurisdiction if Gonzalez engaged in inequitable conduct that estops her from asserting prior active jurisdiction. See Wyatt, 760 S.W.2d at 248; Clawson, 934 S.W.2d at 901. The type of misconduct necessary to invoke this exception "must in some manner involve or circumvent the choice of forum." Sweezy Constr., Inc. v. Murray, 915 S.W.2d 527, 532 (Tex.App.-Corpus Christi 1995, orig. proceeding).
Reliant points out that in 1995, the Texas Legislature made substantial amendments to the venue provisions of the Civil Practice Remedies Code, and the most important of these changes was 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 section 15.007 of the Civil Practice Remedies Code. Tex. Civ. Prac. Rem. Code Ann. § 15.007 (Vernon Supp. 2002). However, in 1999 the legislature amended section 5B of the Probate Code and apparently did not perceive a conflict between venue statute section 15.007 of the Civil Practice and Remedies Code and section 5B of the Probate Code. If the Legislature had wanted to except personal injury, death, or property damage causes of action from the authority given to a probate court to transfer a case from a district court to a probate court, it could have done so, but it did not.
Section 15.007 states as follows:
Notwithstanding Sections 15.004, 15.005, and 15.031 of the Civil Practice and Remedies Code, to 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.
Act of May 20, 1999, 76th Leg., R.S., ch. 1431, § 1, sec. 5B, 1999 Gen. Laws 4876, 4876.
Reliant claims that Gonzalez is trying to "circumvent the choice of forum" by filing identical lawsuits, in different venues, and then utilizing section 5B of the probate code to facilitate "forum shopping." Reliant claims that Gonzalez initially filed suit in the wrong venue, Hidalgo County, and is now trying to "launder" her venue error by filing suit in Harris County, a county of proper venue, and then transferring the case back to Hidalgo County by requesting a 5B transfer motion.
However, any conflict between section 15.007 of the Civil Practice and Remedies Code and the venue statutes of the probate code would not affect a probate court from granting a 5B transfer, because section 5B is not a venue statute. Tex. Prob. Code Ann. § 5B (Vernon Supp. 2002). Several courts have noted that section 15.007 does not prevent transfers pursuant to section 5B of the Probate Code because that section of the Probate Code deals with jurisdiction, not venue. See In re J7S Inc., 979 S.W.2d 374, 378 (Tex.App.-Houston [14th Dist.] 1998, orig. proceeding) (noting that section 5A of the Probate Code is a jurisdictional statute), In re Ford Motor Co., 965 S.W.2d 571, 575 (Tex.App.-Houston [14th Dist.] 1997, orig. proceeding) (same); see also Henry v. LaGrone, 842 S.W.2d 324, 327 (Tex.App.-Amarillo 1992, orig. proceeding) (same).
Regardless of which court has dominant jurisdiction or where venue for this case is proper, section 5B of the Probate Code expressly authorizes a statutory probate court, such as the Hidalgo County Probate Court, to transfer a suit pending in a district court, to itself, when that suit is one in which a personal representative of an estate is a party. Tex. Prob. Code Ann. § 5B (Vernon Supp. 2002); see also Greathouse v. McConnell, 982 S.W.2d 165, 171 (Tex.App.-Houston [1st Dist.] 1998, pet. denied).
Section 5B states:
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.
Although venue for Gonzalez's wrongful death suit may have been appropriate only in Harris County, I would hold that the express transfer authority granted by section 5B applies notwithstanding the venue statutes. See In re Ramsey, 28 S.W.3d 58, 59-60 (Tex.App.-Texarkana 2000, no pet.); see also In re J7S Inc., 979 S.W.2d at 377-78, LaGrone, 842 S.W.2d at 327; Lanier v. Stem, 931 S.W.2d 1, 2-3 (Tex.App.-Waco 1996, orig. proceeding).
For example, in Henry v. LaGrone, the trustee of a trust for an incompetent adult filed a petition for declaratory relief in a district court, even though other matters with respect to the estate were ongoing in probate court. 842 S.W.2d at 325-26. After the probate court entered an order directing the district court to transfer the case, the district court refused to comply and issued a writ of prohibition. Id. Relators then sought a writ of mandamus against the district court judge for refusing to comply with the transfer order. Id. On appeal, the Amarillo Court of Appeals held that, even though venue was appropriate in the district court, section 5B of the Probate Code authorized the statutory probate court to transfer the suit notwithstanding any mandatory venue provisions. Id. at 327.
Similarly, in In re Ramsey, a claim was instituted in district court involving a partnership in which the decedent had been a partner. 28 S.W.3d 58, 59-60 (Tex.App.-Texarkana 2000, no pet. h.). Because the representative of the decedent's estate was named as a party to the suit, the probate court where the decedent's estate was being administered ordered that the partnership action should be transferred to the probate court for resolution. Id. After the district court refused to transfer the case, the representative of the decedent's estate sought a writ of mandamus to force the district court to transfer the suit. Id. On appeal, the Texarkana Court of Appeals held that, although venue of the partnership suit may have been appropriate where it was filed, "the express transfer authority granted by section 5B applies notwithstanding the venue statute" and, "when faced with the probate court's transfer order, the district court was required to transfer the suit." Id. at 61.
Thus, even assuming that the Harris County district court had dominant jurisdiction over the wrongful death case and that venue was proper only in Harris County, the Harris County district court would still be required to transfer the case back to Hidalgo County when faced with the 5B transfer order. Since 1983 when section 5B was added to the Probate Code, it appears to be clear that the intent of the Texas Legislature is to allow consolidation of all causes of action incident to an estate in the statutory probate court in order to promote efficient administration of estates and judicial economy. Id. at 63. By denying Reliant's request for an anti-suit injunction, I believe the district court was promoting that purpose and did not abuse its discretion.
Conclusion
I would affirm the order denying the application for an anti-suit injunction.