Reliant Energy, Inc. v. Gonzalez , 2003 Tex. App. LEXIS 3665 ( 2003 )

EN BANC OPINION ON REHEARING

TERRY JENNINGS, Justice.

We deny the motion for rehearing filed in cause number 01-02-00679-CV by Jan-nete Gonzalez (Gonzalez), as dependent administrator of the estate of Guadalupe Gonzalez, Jr., deceased. See Tex.R.App. P. 49.3. We withdraw our en banc opinion of September 6, 2002, substitute this opinion in its place, and vacate our previous judgment.

These are accelerated, interlocutory appeals ¹ concerning an application by Reliant Energy, Inc. (Reliant) for an anti-suit injunction.² In its sole issue presented in our cause number 01-02-00679-CV, Reliant argued that the Harris County district court abused its discretion in originally denying Reliant’s application for the anti-suit injunction because (1) Gonzalez engaged in inequitable conduct that vested dominant jurisdiction in the Harris County court, (2) Gonzalez’s conduct poses a threat to the dominant jurisdiction of the Harris County court, and (3) Gonzalez’s conduct violates Texas’s public policy against forum shopping. In cause number 01-02-01054-CV, Reliant asserts the same arguments in support of the trial court’s September 6, 2002 order granting Reliant’s application for an anti-suit injunction.

Under its last point, Reliant argues that “[t]he plain language of Section 15.007 of the Civil Practices and Remedies Code³ trumps the applicable venue provision of the Probate Code.” We agree. We hold that section 15.007 controls over section 6 of the Probate Code,⁴ which established venue for the underlying probate proceeding and, consequently, all suits and actions “appertaining to and incident to” the deceased’s estate.

We affirm, in cause number 01-02-01054-CV, the trial court’s September 6, 2002 order granting Reliant’s application for an anti-suit injunction, and accordingly, we dismiss Reliant’s interlocutory appeal in cause number 01-02-00679-CV as moot.

Background

The deceased, Guadalupe Gonzalez, Jr., was killed in an accident while working at a Reliant⁵ power plant near Houston in Harris County. He lived with his wife, Jannete Gonzalez, and their children in Hidalgo County. Upon the death of Mr. Gonzalez, an administration was created in the Hidalgo County statutory probate court, and Jannete Gonzalez was appointed as the administrator of his estate.

Gonzalez, as the administrator of the estate, relying on section 5A of the Probate Code,⁶ filed wrongful death and survival claims against Reliant in the Hidalgo County statutory probate court. When Reliant unsuccessfully moved to transfer venue of these claims to Harris County, Gonzalez then filed the instant case in Harris County, asserting identical claims. Gonzalez immediately requested the Hidalgo County statutory probate court to transfer this Harris County suit to itself under section 5B of the Probate Code.⁷ Reliant then applied to the Harris County district court for an anti-suit injunction enjoining Gonzalez from prosecuting this suit and identical claims in Hidalgo County.

On June 26, 2002, the Harris County district court initially denied Reliant’s application. Subsequently, in accordance with our previous en banc opinion, the trial court granted Reliant’s application for an anti-suit injunction on September 6, 2002.

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). An anti-suit injunction is appropriate to (1) address a threat to a court’s jurisdiction, (2) prevent the evasion of important public policy, (3) prevent a multiplicity of suits, and (4) protect a party from vexatious or harassing litigation. Id. The party seeking the injunction must show that “a clear equity demands” the injunction. Id. 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).

Jurisdiction and Venue

This case turns on questions of jurisdiction and venue. Jurisdiction concerns 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. Nat’l Life Co. v. Rice, 140 Tex. 315, 167 S.W.2d 1021, 1024 (1943); see also 2 McDonald, Texas Civil Practice, § 6:2 (1992). Venue concerns the propriety of prosecuting a suit involving a given subject matter and specific parties in a particular county. Nat’l Life, 167 S.W.2d at 1025; see also 2 McDonald at § 6:2.

Both parties focus their arguments on “dominant jurisdiction.”⁸ Gonzalez argues that sections 5A and 5B of the Probate Code establish dominant jurisdiction in the Hidalgo county statutory probate court and, therefore, section 15.007 does not preempt these “jurisdictional” provisions of the Probate Code. To understand why this argument fails, a review of the pertinent statutory provisions is necessary.

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 to 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).

The Probate Code

Because the deceased actually resided in Hidalgo County, venue to administer his estate was proper there. Tex. Prob.Code Ann. § 6 (Vernon 2003).

Section 5A of the Probate Code, entitled “Matters Appertaining and Incident to an Estate and Other Probate Court Jurisdiction,” confers jurisdiction on statutory probate courts to hear wrongful death cases such as the instant case. Tex. Prob. Code Ann. § 5A(b) (Vernon 2003); see Palmer v. Coble Wall Trust Co., Inc., 851 S.W.2d 178, 181 (Tex.1992). Section 5A provides, in part, as follows:

All statutory probate courts may, in the exercise of their jurisdiction ... hear all suits, actions, and applications filed against or on behalf of any heirship proceeding or decedent’s estate, including estates administered by an independent executor; all such suits, actions, and applications are appertaining to and incident to an estate.

Tex. Prob.Code Ann. § 5A(b).

However, section 5A also recognizes 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) (Vernon 2003) (emphasis added). Here, the Hidalgo County statutory probate court and the Harris County district court have concurrent jurisdiction over Gonzalez’s wrongful death claim against Reliant.

Section 5A further provides:

In situations where the jurisdiction of a statutory probate court is concurrent with that of a district court, any cause of action appertaining to or incident to an estate shall be brought in a statutory probate court rather than a district court.

Tex. Prob.Code Ann. § 5A(b) (emphasis added). Recognizing concurrent jurisdiction, and assuming proper venue, this provision confers predominance on the statutory probate courts over district courts to hear such cases. However, section 5A does not, as Gonzalez’s argument seems to imply, confer “exclusive” jurisdiction on statutory probate courts to hear such cases. First State Bank of Bedias v. Bishop, 685 S.W.2d 732, 736 (Tex.App.-Houston [1st Dist.] 1985, writ refd n.r.e.). Nor does section 5A dispense with the requirement that proper venue must he for a statutory probate court to exercise its concurrent jurisdiction.

Also, Gonzalez’s argument that section 5B of the Probate Code is a jurisdictional statute that trumps section 15.007 is erroneous. Gonzalez points out that intermediate appellate courts have held that the transfer authority of section 5B, and other provisions like it, applies notwithstanding the venue provisions of the Civil Practice and Remedies Code. See In re Ramsey, 28 S.W.3d 58, 59-60 (Tex.App.-Texarkana 2000, orig. proceeding); Lanier v. Stem, 931 S.W.2d 1, 3 (Tex.App.-Waco 1996, orig. proceeding); Henry v. LaGrone, 842 S.W.2d 324, 327 (Tex.App.-Amarillo 1992, orig. proceeding). However, the controlling difference is that none of these cases were suits for wrongful death, personal injury, or property damage. These cases do not address section 15.007, in which the Texas legislature specifically stated that in three types of cases — suits for “personal injury, death, or property damage” — the proper county for suit is determined in accordance with the Civil Practice and Remedies Code, not the Probate Code.

We recognize that the Austin Court of Appeals has recently held that sections 5B and 608 of the Probate Code “confer jurisdiction on the probate court.” In re Houston Northwest Partners, Ltd., 98 S.W.3d 777, 780 (Tex.App.-Austin, 2003, orig.proceeding). We respectfully disagree with this characterization of section 5B as conferring jurisdiction. Section 5B of the Probate Code is entitled “Transfer of Proceedings,” and it provides, in part, as follows:

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) (emphasis added). This provision merely provides the statutory probate court with a mechanism to effect its authority under section 5A. Section 5B does not confer jurisdiction, and it also does not dispense with the requirement that proper venue must lie for a statutory probate court to exercise its concurrent jurisdiction.

Civil Practice and Remedies Code

Chapter 15 of the Civil Practice and Remedies Code states the general venue rale as follows:

(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.

Tex. Civ. Prac. & Rem.Code Am § 15.002(a) (Vernon 2002) (emphasis added). Under section 15.002, because Reliant’s principal place of business is in Harris County and because the deceased was killed in an accident while working at a Reliant power plant in Harris County, venue for Gonzalez’s wrongful death and survival claims is proper only in Harris County.

Section 15.007 expressly states that “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.” Tex. Civ. Prac. & Rem.Code Ann. § 15.007 (Vernon 2002) (emphasis added).

Application of Section 15.007

Gonzalez’s argument that sections 5A and 5B establish “dominant jurisdiction” in the Hidalgo county statutory probate court and section 15.007 does not preempt these “jurisdictional” provisions of the Probate Code is based on the false assumption that sections 5A and 5B somehow dispense with the requirement of proper venue. It ignores the fact that the basis for the Hidal-go County statutory probate court’s venue is section 6 of the Probate Code. Tex. Prob.Code Ann. § 6 (Vernon 2003). The argument focuses on dominant jurisdiction to the extent that it eclipses venue. However, it is axiomatic that a court cannot have “dominant jurisdiction” if it does not have proper venue.

The focus in regard to section 15.007 must be, as expressly stated, on venue, not “dominant jurisdiction,” Here, based on section 6 of the Probate Code, venue was proper in Hidalgo County for the underlying probate proceeding and, consequently, all suits and actions “appertaining to and incident” to the estate. If the Hidalgo County statutory probate court lacked the venue conferred on it by section 6, it could not administer the estate and, consequently, it could not hear all suits and actions “appertaining to and incident to” the estate.

We hold that section 15.007 controls over section 6 of the Probate Code, which established venue for the underlying probate proceeding and, consequently, all suits and actions “appertaining to and incident to” the deceased’s estate. We further hold that sections 5A and 5B of the Probate Code in no way limit the application of section 15.007 of the Civil Practice and Remedies Code.

Our holdings are consistent with the underlying purpose of section 15.007, which was enacted by the Texas legislature in 1995:

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)(emphasis added). This legislation “changed the ability of statutory probate courts to make ... transfers in personal injury, death, or property damage suits and whether such suits can be filed in probate courts originally.” DB Entm’t, Inc. v. Windle, 927 S.W.2d 283, 288 (Tex.App.-Fort Worth 1996, orig. proceeding). The legislative intent behind section 15.007 was to prevent forum shopping:

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.

Id.

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.⁹ 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.). Thus, an anti-suit injunction was appropriate in this case to prevent the evasion of Texas’s important public policy against forum shopping.

Conclusion

Because venue under Chapter 15 of the Civil Practice and Remedies Code “controls” over the applicable venue provision — section 6 — of the Probate Code, Harris County is the only county with proper venue of this case. Tex. Civ. Prac. & Rem.Code §§ 15.002(a), 15.007. Although the Hidalgo County statutory probate court has concurrent jurisdiction with the Harris County district court, the Hi-dalgo County statutory probate court is not a “proper forum” for this wrongful death case, in light of Reliant’s assertion of its right to be sued in Harris County.

We hold that section 15.007 precludes the transfer of this wrongful death suit from the Harris County district court to the Hidalgo county statutory probate court. Moreover, “a clear equity demands” an anti-suit injunction because Gonzalez filed the instant case in Harris County, asserting claims identical to those already made in the Hidalgo County statutory probate court, and then immediately requested the Hidalgo County statutory probate court to transfer this Harris County suit to itself.

Thus, the Harris County district court, in its June 26, 2002 order, abused its discretion in initially denying Reliant’s application for an anti-suit injunction against the prosecution of the identical suit in the Hidalgo County statutory probate court. However, that initial order, appealed under our cause number 01-02-00679-CV, was implicitly superseded by the trial court’s subsequent September 6, 2002 order granting the same application for an anti-suit injunction and is no longer subject to review. We further hold, under our cause number 01-02-01054-CV, that the Harris County district court did not abuse its discretion in granting Reliant’s application for an anti-suit injunction on September 6, 2002. Accordingly, under cause number 01-02-01054-CV, we affirm the September 6, 2002 order of the Harris County district court granting Reliant’s application for an anti-suit injunction.

En banc consideration was requested.

A majority of the Court voted to grant 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, wrote 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, dissented on original submission of cause number 01-02-00679-CV.

Chief Justice SCHNEIDER¹⁰ and Justice HEDGES, did not participate on original submission of cause number 01-02-00679-CV.

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

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 and on original submission of cause number 01-02-01054-CV.

1 . In this Court's en banc opinion of September 6, 2002 in cause number 01-02-00679-CV, we held that the trial court had abused its discretion in initially denying Reliant’s application for an anti-suit injunction, and we remanded this cause to the trial court with instructions that it issue an injunction in accordance with our opinion. That same day, and before the issuance of a mandate from this Court, the trial court granted Reliant’s application for the anti-suit injunction, implicitly superseding its June 26, 2002 order denying the application. See TexR.App. P. 29.5 ("While an appeal from an interlocutory order is pending, the trial court retains jurisdiction of the case and may make further orders, including one dissolving the order appealed from....”).

Gonzalez subsequently filed her interlocutory appeal, cause number 01-02-01054-CV, of the trial court’s September 6, 2002 anti-suit injunction. Gonzalez now requests that we consolidate these two interlocutory appeals or consider them together. We agree with the parties that the issues presented in the two appeals are identical and that further briefing is unnecessary. Accordingly, and in the interest of judicial economy, we will consider these two interlocutory appeals, the parties' briefing, and the respective records together, as reflected in the style shown above. See TexR.App. P. 29.6(a) (“While an appeal from an interlocutory order is pending, on a party’s motion, or on the appellate court's own initiative, the appellate court may review ... (1) a further appealable interlocutory order concerning the same subject matter; and (2) any interlocutory order that interferes with or impairs the effectiveness of the relief sought or that may be granted on appeal.”). By separate order in cause number 01-02-01054-CV, we deny Gonzalez’s motion to consolidate these appeals, and we deny Reliant’s motion to dismiss Gonzalez's interlocutory appeal.

2 . In addition to its interlocutory appeal, Reliant filed a petition for writ of prohibition, seeking to enjoin the Harris County District Clerk from transferring the underlying lawsuit to Hidalgo County. Following this Court’s original September 6, 2002 opinion in this case, Reliant's petition was denied as moot. In re Reliant Energy, Inc., 01-02-00688-CV, 2002 WL 31684865 (Tex.App.Houston [1st Dist.] November 27, 2002, orig. proceeding).

3 . Tex. Civ. Prac. & Rem.Code Ann. § 15.007 (Vernon 2002).

4 . Tex. Prob.Code Ann. § 6 (Vernon 2003).

5 . Reliant’s principal place of business is in Harris County.

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

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

8 . This Court has held that when proceedings have commenced in a statutory probate court, "the probate court has dominant jurisdiction over any subsequent suits incident or appertaining to an estate, and the district court or any other court of concurrent jurisdiction has servient jurisdiction.” First State Bank of Bedias v. Bishop, 685 S.W.2d 732, 736 (Tex.App.-Houston [1st Dist.] 1985, writ refd n.r.e.) (emphasis added). However, the general rule regarding “dominant jurisdiction” is that, when a court of competent jurisdiction over the subject matter with the power to bring all necessary parties before it acquires the prior right to exercise jurisdiction over a cause of action, no other state court in which a suit was subsequently filed has the right to interfere. Andrews v. Utica Mut. Ins. Co., 647 S.W.2d 22, 25 (Tex.App.-Houston [1st Dist.] 1982, no writ) (citing Texas Employers Ins. Ass’n v. Baeza, 584 S.W.2d 317, 320 (Tex.Civ.App.-Amarillo 1979, no writ)).

There has been much confusion regarding the concept of dominant jurisdiction. The confusion arises out of a misnomer: dominant jurisdiction does not implicate a court's jurisdiction at all. Rather, it arises when an identical cause of action has been filed in two courts of concurrent jurisdiction. The concept dictates that the court with the later filed case cede its authority to adjudicate the cause of action to the court with the case filed first. It is a mistake to assume that the second court has no power to adjudicate the cause of action; rather, as a matter of comity and judicial efficiency, it defers to the first court. Thus, dominant jurisdiction is an inappropriate consideration in determining proper venue under the facts of this case.

9 . We are aware that the Fourteenth Court of Appeals has expressed a contrary view in dicta in In Re J7S Inc., but that case was for recoveiy 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).