Mary Blanchard v. Grace McNeill, in Her Capacity as Successor Trustee and Beneficiary of the Dixie Lee Hudlow Living Trust Harold McNeill as Beneficiary of the Dixie Lee Hudlow Living Trust And the Dixie Lee Hudlow Living Trust

ACCEPTED
03-14-00511-CV
4422058
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/9/2015 2:05:50 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00511-CV
_________________________________________________________________
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
FOR THE THIRD SUPREME JUDICIAL DISTRICTAUSTIN, TEXAS
_________________________________________________________________
3/9/2015 2:05:50 PM
JEFFREY D. KYLE
MARY BLANCHARD Clerk
Respondent/Appellant
v.
GRACE ANN MCNEILL, IN HER CAPACITY AS SUCCESSOR TRUSTEE AND
BENEFICIARY OF THE DIXIE LEE HUDLOW LIVING TRUST, AND
HAROLD MCNEILL, AS BENEFICIARY OF THE DIXIE LEE HUDLOW LIVING
TRUST, AND THE DIXIE LEE HUDLOW LIVING TRUST,
Petitioners/Appellees.
_________________________________________________________________
From the Probate Court No. 1
Travis County, Texas
Trial Court No. C-1-PB-13-001179
_________________________________________________________________
PETITIONER, MARY BLANCHARD'S, MOTION
FOR REHEARING EN BANC
_________________________________________________________________
TO THE HONORABLE JUSTICES OF SAID COURT OF APPEALS:
COMES NOW, Mary Blanchard, ("MB") Petitioner, by and through
her Attorney in this proceeding and files this, her Motion For
Rehearing En Banc of this Court's Opinion and Order denying
Petitioner Blanchard's Petition For Writ Of Mandamus and, in
support of an Order Granting Rehearing, and the setting aside of
this Court's Order and Opinion Denying Relief dated January 23rd,
2015, would show the Court the following:
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FACTS ESTABLISHED BY THE RECORD PROVE THAT THE TRANSFER
ORDER VIOLATED TEXAS ESTATES CODE SECTION 38.002(c)(3)
I.
1. The Case in which the Probate Court entered its Order of
Transfer was styled Estate of Dixie Lee Hudlow, Deceased, Cause No.
1-PB-12-00179. The "case snatching" Attorney filed the Motion to
Transfer in the Main Probate case -- in which his client, Grace
McNeill, was acting as the Executrix of the Estate of Dixie Lee
Hudlow.
2. The "snatched case" pending before the 151st Judicial
District Court of Harris County, Texas; Cause No. 2014-27275, had
the style Mary Blanchard, Plaintiff v. Grace McNeill, Successor
Trustee and Alleged Beneficiary of the Dixie Lee Hudlow Living
Trust and Harold McNeill in his Alleged capacity as beneficiary of
the Dixie Lee Hudlow Living Trust, and the Dixie Lee Hudlow Living
Trust.
3. The Declaratory Judgment Action which the "case
snatching" Attorney for Grace McNeill filed in the Probate Court
No. 1 of Travis County, Texas was styled In Re: Dixie Lee Hudlow
Living Trust Grace Anne McNeill, as Successor Trustee of the Dixie
Lee Hudlow Living Trust as Amended; Cause No. C-1-PB-000693.
4. NONE of the actions to which McNeill's Motion To Transfer
related were brought against, or by, the personal representative of
the Estate of Dixie Lee Hudlow, Executrix Grace Anne McNeill. Nor
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was Harold McNeill named as a Defendant or Plaintiff in his
capacity as a beneficiary of the Estate of Dixie Lee Hudlow.
5. Both the Declaratory Judgment Action brought by Grace
Anne McNeill and the Houston Action, brought by Mary Blanchard
raised causes of action, and claims, related solely to the Dixie
Lee Hudlow Living Trust.
6. The Dixie Lee Hudlow Living Trust ("DLHLT") was not a
testamentary trust. The DLHLT was formed long before Dixie Lee
Hudlow's death.
7. Under the above facts, and under the legal authorities
set out below, a case involving a Living Trust is not "related to"
a proceeding before a Statutory Probate Court under the clear
statutory definition of Texas Estates Code Sec. 38.002(c)(3) and is
not subject to transfer under Texas Estates Code Sec. 38.001.
8. This Court's ruling to the contrary violates the clear
statutory language of Texas Estates Code Sec. 38.002(c)(3) which
limits the Statutory Probate Court's transfer power.
LEGAL ARGUMENT AND AUTHORITY SUPPORTING REHEARING EN BANC
II.
1. THE PANEL OPINION APPLIED THE WRONG STANDARD OF REVIEW -- A
TRIAL COURT HAS NO DISCRETION TO VIOLATE STATUTORY LAW.
The applicable standard of review for determining whether a trial
court has abused its discretion is described as follows in Terex,
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supra, a decision the panel issuing the Opinion and Order
purportedly relied on:
An appellate court rarely interferes with a trial court's
exercise of discretion. A clear abuse of discretion
warranting correction by mandamus occurs when a court
issues a decision which is without basis or guiding
principles of law. See Johnson v. Fourth Court of
Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig.
proceeding). With respect to resolution of factual issues
or matters committed to the trial court's discretion, the
reviewing court may not substitute its judgment for that
of the trial court. Walker, 827 S.W.2d at 839-40. The
relator must therefore establish that the trial court
could reasonably have reached only one decision. Id. Even
if the reviewing court would have decided the issue
differently, it cannot disturb the trial court's decision
unless it is shown to be arbitrary and unreasonable. Id.
With respect to a trial court's determination of the
legal principles controlling its ruling, the standard is
much less deferential. A trial court has no "discretion"
in determining what the law is or applying the law to the
facts. Thus, a clear failure by the trial court to
analyze or apply the law correctly will constitute an
abuse of discretion, and may result in appellate reversal
by extraordinary writ. Walker, 827 S.W.2d at 840.
Here the Opinion and Order reads as if the trial judge made
some determination of fact in making the illegal transfer order
that a Court of Appeals can not disturb. No such factual decision
was made. The trial judge simply exercised a statutory power he did
not have.
In doing so the trial court had no discretion it could abuse.
Contrary to the language in the panel's Order and Opinion this
Court, on Mandamus, was required to review the trial court's legal
error in applying the transfer statute (Texas Estates Code Sec.
38.002(c)(3) "de novo" without deference.
The Panel's Opinion and Order does not do so. Rehearing En
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Banc should be granted.
2. CLAIMS AND CAUSES OF ACTION CONCERNING THE OWNERSHIP OF
PROPERTY OF A LIVING TRUST OR QUESTIONS CONCERNING THE
PROPER BENEFICIARIES OF A LIVING TRUST ARE NOT "RELATED TO"
AN ESTATE PROCEEDING AND ARE NOT SUBJECT TO TRANSFER UNDER
TEXAS ESTATES CODE SEC. 38.002(C)(3).
The Texas Legislature chose to place limits on the types of
cases which a Statutory Probate Court may transfer from a District
Court. Those limitations appear in Texas Estates Code Sec. 38.002
which sets out such limitations in detail. After listing various
limitations which are inapplicable here, the statute states the
following limitation(s) on Statutory Probate Court transfer power:
(c) For purposes of this code, in a county in which there
is a statutory probate court, a matter related to a
probate proceeding includes:
(1) all matters and actions described in Subsections
(a) and (b); and
(2) any cause of action in which a personal
representative of an estate pending in the statutory
probate court is a party in the representative's capacity
as personal representative.
The Personal Representative of the Estate of Dixie Lee Hudlow,
Executrix Grace Anne McNeill was not a named party in either the
Declaratory Judgment Action her "case snatching" Attorney brought
or in the Houston case brought by Blanchard in the 151st Judicial
District Court of Harris County, Texas.
Neither the case transferred -- Blanchard's District Court
case -- nor Grace McNeill's Declaratory Judgment action brought in
her alleged capacity as Successor Trustee of the Dixie Lee Hudlow
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Living Trust were "related to" to Estate Proceeding involving the
Estate of Dixie Lee Hudlow, Deceased.
This Court's ruling to the contrary violates the clear wording
of the statute -- Texas Estates Code Sec. 38.002 which proscribes
rather than grants any authority of a Statutory Probate Court to
transfer cases to itself involving Living Trusts over which the
District Courts have concurrent jurisdiction.
This Court's Order and Opinion cites In Re Terex Corporation,
123 S.W.3d 673 (Tex.App.-El Paso 2003)(orig. proceeding) as
supposed support for its decision to allow the illegal transfer to
stand. Terex involved a case which the El Paso Court of Appeals
described as follows:
This is an original proceeding in mandamus. Relators seek
a writ of mandamus requiring the Honorable Max Higgs,
Judge of the El Paso County Probate Court, to vacate his
September 22, 2003 order transferring cause number 048-
187504-01, styled Matilde C. Talavera, Individually and
as Representative of the Estate of Emilio C. Talavera,
Deceased, Frank Talavera, Richard Talavera, Lorrie Ann
Talavera and Tracy Talavera v. Anthony Crane Rental, L.P.
d/b/a Maxim Crane Works; Curtis Shiflet; David Keener;
Keith Clark; Rex Whalen; Crane & Rigging Consultants;
Harnischfeger Corporation; Terex Lifting, a Division of
Terex Corporation; and Terex Cranes, Inc., from the 48th
District Court of Tarrant County to the El Paso County
Probate Court and consolidating it with cause number
2002-P00893, styled In Re: The Estate of Emilio Talavera,
Deceased.
See Terex at Pg. 673.
Terex involved a transfer of an action in which the personal
representative of an Estate was a named party. It has no
application here and does not support this Court's Panel Order and
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Opinion upholding the transfer of a case from District Court which
had no personal representative(s) of an Estate as a Party(s)
Further, to the extent Terex opines that the Statutory Probate
Court's power to transfer is "jurisdictional" rather than "a matter
of venue" its criticism of the reasoning to the contrary in Reliant
Energy, Inc. v. Gonzalez, 102 S.W.3d 868, 874-75 (Tex.App.-Houston
[1st Dist.] 2003, pet. granted) was thoroughly debunked, and then
rejected, by the Supreme Court of Texas in Gonzalez v. Reliant
Energy, Inc., 159 S.W.3d 615 (Tex. 2005) which upheld the First
Court of Appeals reasoning in Reliant.
McNeill had the right to seek transfer of venue under the
"first filed rule" through pursuit of a Plea in Abatement or other
venue filing(s). But that is all she had.
CONCLUSION
Once more, as it did in In Re Houston Northwest Part, 98
S.W.3d 777 (Tex.App.-Austin 2003 this Court of Appeals attributes a
pooh bah power to a Statutory Probate Court which it does not have
-- the "snatching" of cases from District Courts over which the
Statutory Probate Court has, at best, mere concurrent jurisdiction
subject, in its exercise, to the application of the Venue statutes.
This Court's violation of the Texas Supreme Court's reasoning
in Gonzales in this case is merely the same legal chapter -- second
verse.
The transfer order "snatching" a Living Trust case from the
Harris County District Court was illegal and in excess of the
Statutory Probate Court's power and jurisdiction. Mandamus lies to
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correct such an abuse of transfer power. See In Re Estate Of
Aguilar, 04-13-00690-CV (Tex.App.-San Antonio 6-4-2014)(m.o.)
The full Court of Appeals should reconsider this matter En
Banc and then issue an Order and Opinion directing the Honorable
Presiding Judge of Probate Court No. 1 of Travis County, Texas to
withdraw and set aside his illegal order of transfer.
Respectfully submitted,
s/Joe Alfred Izen, Jr.
____________________________
Joe Alfred Izen, Jr.
Attorney for Appellant Blanchard
TBC # 10443500
5222 Spruce Street
Bellaire, Texas 77401
(713) 668-8815
(713) 668-9402 FAX
jizen@comcast.net
CERTIFICATE OF COMPLIANCE
I certify that this document was created in a DOS Word Star 6
format and contains 1,856 words.
s/Joe Alfred Izen, Jr.
_____________________
Joe Alfred Izen, Jr.
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing
document was sent to Jeffrey T. Knebel, 301 Congress Avenue, Suite
1910, Austin, TX 78701 (fax: 512-542-2011) by facsimile trans-
mission and/or eservice on the 4th day of March, 2015.
s/Joe Alfred Izen, Jr.
_______________________________
Joe Alfred Izen, Jr.
BLANCHAR.M4R/TK472
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