in Re Estate of Don Love Foust

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00089-CV
IN RE ESTATE OF DON LOVE FOUST, DECEASED
Original Mandamus Proceeding
Before Morriss, C.J., Stevens and van Cleef, JJ.
Opinion by Justice Stevens
OPINION
Relator, the Estate of Don Love Foust, deceased, has filed a petition for a writ of
mandamus asking this Court to compel the Honorable Clay Harrison, judge of the County Court
at Law of Hopkins County, to vacate a November 9, 2022, order transferring venue from
Hopkins County to Dallas County. For the reasons below, we decline to grant the petition.
I. Background
Paul Foust (Foust), the son of Don Love Foust (Decedent), filed his application for
probate of Decedent’s will on July 18, 2022, in Hopkins County. The petition alleged that
Decedent was domiciled at 1044 Church Street in Sulphur Springs when he passed away on
June 29, 2022, at the age of ninety. At the time of his death, Decedent’s widow, Eugenia Foust,
resided in Dallas County. Eugenia filed a motion to transfer venue to Dallas County, claiming
that, pursuant to Section 33.001 of the Texas Estates Code, Decedent did not have a fixed place
of residence in Hopkins County and was in an assisted living center there for approximately two
months. See TEX. ESTATES CODE ANN. § 33.001. Eugenia further averred that Decedent’s estate
consisted of a large amount of real property located in Dallas County but did not include any
property in Hopkins County. As a result, Eugenia prayed that the court transfer the matter to
Dallas County.
The trial court held a contested evidentiary hearing on the motion to transfer venue,
following which it issued its order transferring the matter to Dallas County. In its order, the
court found:
1. Decedent’s last county of residence was Dallas County. In his will which
was executed on December 1, 2020, Decedent states in the first sentence
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that he is a resident of Dallas County. The court notes that Non-Movant is
the party who applied to probate this will. However, prior to death,
Decedent left Dallas County and did not establish a new county of
residence prior to his death. He temporarily resided in Upshur County,
Texas, in a facility before being transferred to Hopkins County, Texas. He
was physically located in a facility in Hopkins County for a brief time
after Upshur County. Decedent died in Hopkins County without having a
county of residence.
2. At the time of his death, Decedent was married to Movant and a divorce
was pending in Dallas County. Movant now resides in Galveston County.
Movant and Decedent previously resided in Dallas County together as
spouses until the divorce was filed in Dallas County.
3. Decedent’s principal estate as recited in the will is in Dallas County. The
estate consists of multiple pieces of real estate in Dallas County as well as
some property in Tarrant County and Galveston County. There is no
property in Hopkins County.
As a result of those findings, the trial court concluded that, “[u]nder Texas Estates Code 33.001,
venue [was] proper in either Dallas County or Hopkins County.”1 Hopkins County was a county
of proper venue, the court concluded, because it was the county in which Decedent passed away.
Conversely, Dallas County was also a proper county of venue because it was the location of
Decedent’s principal estate at the time of his death. Foust argued that, because Hopkins County
was a county of proper venue, and because he filed the application in Hopkins County, the trial
1
Section 33.001 states,
(a) Venue for a probate proceeding to admit a will to probate or for the granting of
letters testamentary or of administration is:
(1) in the county in which the decedent resided, if the decedent had a
domicile or fixed place of residence in this state; or
(2) with respect to a decedent who did not have a domicile or fixed place
of residence in this state:
(A) if the decedent died in this state, in the county in which:
(i) the decedent’s principal estate was located at the time
of the decedent’s death; or
(ii) the decedent died.
TEX. ESTATES CODE ANN. § 33.001(a).
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court lacked the authority to transfer venue to Dallas County. Despite this argument, the trial
court found that it was in the estate’s best interest to transfer venue to Dallas County, in reliance
on Section 33.103 of the Texas Estates Code.2
In his petition, Relator argues that the trial court abused its discretion in transferring the
case to Dallas County (1) when the Estate had presented a prima facie case of fixed place of
residence and Eugenia did not present controverting sworn evidence to the contrary and (2) when
Foust filed the case in the county of proper venue and no motion for transfer for convenience or
best interest of the estate was before the court.3
II. Standard of Review
“Mandamus relief is proper to correct a clear abuse of discretion when there is no
adequate remedy by appeal.” In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex.
2016) (orig. proceeding) (quoting In re Frank Kent Motor Co., 361 S.W.3d 628, 630 (Tex.
2012)). “A trial court clearly abuses its discretion if ‘it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law.’” Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) (quoting Johnson v. Fourth Ct. of Appeals, 700 S.W.2d 916, 917
(Tex. 1985) (orig. proceeding), disapproved of by In re Columbia Med. Ctr. of Las Colinas,
Subsidiary, L.P., 290 S.W.3d 204 (Tex. 2009) (orig. proceeding))). “A trial court has no
2
Section 33.103 provides, “The court may order that a probate proceeding be transferred to the proper court in
another county in this state if it appears to the court at any time before the proceeding is concluded that the transfer
would be in the best interest of . . . the estate . . . .” TEX. ESTATES CODE ANN. § 33.103(a) (Supp.).
3
Although the motion to transfer venue did not mention Section 33.001 of the Texas Estates Code, the trial court
could nevertheless have interpreted the motion as advancing an argument for transfer for the convenience and best
interest of the estate. See In re Bokeloh, 21 S.W.3d 784, 790 (Tex. App.—Houston [14th Dist.] 2000, orig.
proceeding) (“courts have broad discretion to interpret pleadings liberally,” as long as “the interpretation [is]
reasonable and consistent with the nature and character of the pleading at issue”).
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‘discretion’ in determining what the law is or in applying the law to the particular facts.” Id. at
840. Given this two-part test, we need not decide whether the trial court clearly abused its
discretion in transferring venue to Dallas County. Instead, we focus on whether Relator has
established that it has no adequate appellate remedy.
III. Adequacy of Appellate Remedy
Because “[m]andamus is an extraordinary remedy available only when there is an abuse
of discretion and no adequate appellate remedy,” “venue determinations as a rule are not
reviewable by mandamus.” In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999) (orig.
proceeding);4 see Bridgestone/Firestone, Inc. v. Thirteenth Ct. of Appeals, 929 S.W.2d 440, 441
(Tex. 1996) (per curiam) (orig. proceeding); see also In re Lowe’s Home Ctrs., L.L.C., 531
S.W.3d 861, 874 (Tex. App.—Corpus Christi–Edinburg 2017, orig. proceeding). “The only
remedy afforded by the Legislature when a party loses a venue hearing is to proceed with trial in
the transferee county and appeal any judgment from that court on the basis of alleged error in the
venue ruling.” In re Team Rocket, L.P., 256 S.W.3d 257, 261 (Tex. 2008) (orig. proceeding)
(citing TEX. CIV. PRAC. & REM. CODE ANN. § 15.064(b) (“On appeal from the trial on the merits,
if venue was improper it shall in no event be harmless error and shall be reversible error.”)); see
In re City of Irving, Tex., 45 S.W.3d 777, 779 (Tex. App.—Texarkana 2001, orig. proceeding)
(“[T]he mere fact that a trial court’s erroneous order will result in an eventual reversal on appeal
does not mean that a trial will be a ‘waste of judicial resources’. . . . To hold otherwise would
4
Mandatory venue provisions are reviewable by mandamus. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.0642 (“A
party may apply for a writ of mandamus with an appellate court to enforce the mandatory venue provisions of this
chapter.”).
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mean that virtually any reversible error by a trial court would be a proper subject for mandamus
review.”).
“The Texas Supreme Court has also held, however, that an erroneous venue
determination may result in a writ of mandamus if the waste of judicial resources is so great as to
make the situation a truly exceptional circumstance.” In re City of Irving, Tex., 45 S.W.3d at 779
(citing In re Masonite Corp., 997 S.W.2d at 199) (finding appellate remedy inadequate when
trial court acted on its own motion and “effectively treated the nonresident plaintiffs’ motions to
sever as motions to transfer venue and granted them”). In Team Rocket, another case finding
extraordinary circumstances, the trial court transferred venue from Harris County to Williamson
County, the location of Team Rocket’s principal place of business. After the transfer, the
plaintiffs nonsuited the case and immediately refiled the same claims in Fort Bend County.
Team Rocket moved to transfer venue back to Williamson County based on the trial court’s prior
venue order. The trial court in Fort Bend County denied the motion. In re Team Rocket, L.P.,
256 S.W.3d at 259. Team Rocket petitioned for mandamus relief. The Texas Supreme Court
found that, “once a venue determination has been made, that determination is conclusive as to
those parties and claims . . . . [and] cannot be overcome by a nonsuit and subsequent refiling in
another county.” Id. at 260. It concluded,
When . . . a trial court improperly applie[s] the venue statute and issue[s] a ruling
that permits a plaintiff to abuse the legal system by refiling his case in county
after county, which would inevitably result in considerable expense to taxpayers
and defendants, requiring defendants to proceed to trial in the wrong county is not
an adequate remedy.
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Id. at 262; see Henderson v. O’Neill, 797 S.W.2d 905, 905 (Tex. 1990) (per curiam) (orig.
proceeding) (holding that mandamus was appropriate remedy where trial court ruled on motion
to transfer without giving sufficient notice, made no attempt to follow the rule, and
acknowledged deviating from the rule); In re Lowe’s Home Ctrs., L.L.C., 531 S.W.3d at 864, 875(holding that mandamus was appropriate remedy where trial court denied Lowe’s motion to
transfer from Starr County to Cameron County; plaintiffs later nonsuited and refiled in Hidalgo
County after it was discovered that its original venue pleadings were incorrect or fraudulent);
In re Berry GP, Inc., 530 S.W.3d 201 (Tex. App.—Beaumont 2016, orig. proceeding) (per
curiam) (holding that mandamus was appropriate remedy where trial court failed to transfer to
county of proper venue when plaintiffs failed to plead and prove venue facts, resulting in abuse
of judicial system); In re Reynolds, 369 S.W.3d 638, 657 (Tex. App.—Tyler 2012, orig.
proceeding) (holding that mandamus was appropriate remedy where severance and venue were
intertwined and relator would be unable to obtain reversal of incorrect venue ruling on appeal
unless relator also obtained reversal of incorrect denial of severance); In re Shell Oil Co., 128
S.W.3d 694, 697 (Tex. App.—Beaumont 2004, orig. proceeding) (holding that mandamus was
appropriate remedy where trial court refused to grant motion to transfer to previously determined
county of venue); cf. Robertson v. Gregory, 663 S.W.2d 4, 4 (Tex. App.—Houston [14th Dist.]
1983, orig. proceeding) (holding transfer order void when probate court, without notice to parties
and on its own motion, transferred guardianship and proceedings incident thereto to Dallas
County); Boyd v. Ratliff, 541 S.W.2d 223, 225–26 (Tex. App.—Dallas 1976, writ dism’d)
(holding transfer for best interest of estate pertained “only to the proceedings specifically set
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forth in ss 6 and 7” and finding suit for declaratory judgment not a proceeding set forth in either
section).5
Here, we do not find any “extraordinary circumstances” which might render an ordinary
appeal an inadequate remedy. See In re Team Rocket, L.P., 256 S.W.3d at 262. As a result,
relator has failed to show entitlement to mandamus relief. We, therefore, deny the petition for a
writ of mandamus.
Scott E. Stevens
Justice
Date Submitted: December 21, 2022
Date Decided: December 22, 2022
5
See Act of March 17, 1955, 54th Leg., R.S., ch. 55, §§ 6, 7, 1955 Tex. Gen. Laws 88, 91–92 (formerly codified at
TEX. PROBATE CODE §§ 6, 7).
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