## 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 S te vens2 

### O P I N I O N Relator, the Estate of Don Love Foust, d eceased , has filed a petition for a writ of mandamus asking this Court to compel the Honorable Clay Harrison , j udge of the County Court
at Law of Hopkins County , to vacate a Novembe r 9, 202 2, o rder transfer ring venue from Hopkin s 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 w il l on Jul y 18 , 20 22 , 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, reside d in Dal las C oun ty

. Eugenia filed a motion to transfer venue to Dallas County , claiming that, pursuant to S ection 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 ce nter the re for a ppro xima tely two months. See T EX
. E STATES C ODE A NN
. § 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 C ounty. As a result, E ugenia p raye d th at 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 Dal las County. In its order, the
court found:
1. D eced ent ’ s las t county of residence was Dallas County. In his will which was executed on December 1, 2020, Decedent states in the first sentence3 that he is a resident of Dallas County. The court notes that Non

- Movant is the party who applied t o probat e th is w ill. Howe ver, 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 phy sica lly locate d in a facility in Hopkins County for a brief time after Upshur County. Decedent died in Hopkins C ounty without having a county of residence.
2. At the time of his death, Decedent was married to Movant and a divorce was pending in Dalla s Co unty . Movant now resides in Galveston County. Movant and Decedent previously resided in Dallas County togeth er 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 e stat e co nsists 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]nd er Texas Estates C ode 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 coun ty of ven u e 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 Ho pkins County, the trial

1 Section 33.001 states,

(a) Venue for a proba te p roceeding to ad m it a will to probate or for the granting of letters testamentary or of administration is:

(1) in th e 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 de cedent who did n ot h ave a domicile or fixed place of residence in this state:

(A) if the decedent died in this stat e, 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

. T EX
. E STATES C OD E A NN
. § 33.001 (a).4

court lacked th e aut hority to t ransfer 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 petitio n, Relator arg ues that t h e 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 file d 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

a dequate re m edy by appeal. ” In re Christus Santa Rosa Health S ys . , 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding) (quo ting 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 deci sion so ar b itrary and unreasonable as to amount to a clear and prejudicial error of law. ’ ” Walker v. Packer , 827 S.W.2d 8 33, 839 (Tex. 1992) ( quoting Johnson v. Fourth Ct. of App eals , 700 S.W.2d 916, 917 (Tex. 1985) (orig . proceeding) , disap proved of b y In re Columb ia Med. Ctr. of Las Colinas, Subsidiary, L.P. , 2 90 S.W.3d 204 (Tex. 2009) (orig. proceeding) ) ). “ A trial court has no

2 S ection 33.103 provides , “ T he court may order that a probate proceeding be tran sferred to the proper court in another county in this state if it appears to the court at any time before the proceeding is conclud ed t hat the transfer woul d be in the best inter est of . . . the estate . . . .” T EX
. E STATES C ODE A NN . § 33.103(a) (Supp.)

.
3 Although the motion to transfer venue did not mention S ection 33.001 of the Texas Estates Code, the trial court could nevertheles s ha ve interpreted the mo t ion as advancing an arg ument 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 interp ret pleadings liberally ,” as long a s “the inte rpretation [ is ] reasonable and consistent with the nature and character of the pleading at issue ”).5

‘ di s cretion ’ in determining what the law is or in applying the law to the particular facts. ” Id

. at 840. Given this two

- part test, we n eed not decide whether the trial court clearly abused its discretion in transferring venue t o Dallas County. Instead, we f ocus on whether Relator has established that it has no adequate appellate remedy.
III . Adequacy of Appellate Remedy
Because “ [ m ] an damus is an extraordinary remedy available only when there is an abuse of discretion and no adequate appellate remedy, ” “ v e nue determinations as a rule are not reviewable by mandamus. ” In re Masonite Corp

. , 99 7 S .W.2d 1 94, 197 (Tex. 1999) (orig. proceedin g) ; 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 C t rs . , L.L.C

. , 531 S.W.3d 861, 874 (Tex. App.

— Corpus Christi

– E dinburg 2017, orig. proceeding). “ The only remedy afforded by the Legislature when a party loses a venue hearing is to proceed with trial in the tr an sferee county and appeal any judgment from that court on the basis of alleged error in the

venue r uling. ” In re Team Rocket , L.P

. , 256 S.W.3 d 257, 261 (Tex . 2008) (orig. proceeding) (citing T EX
. C IV
. P RAC
. & R EM
. C OD E A NN
. § 15.064( b) ( “ On appeal from t he trial on the merits, if venue was improper it shall in no event be harmless error and shall be reversi ble error. ” ) ) ; see In re City of Irvin g , Tex. , 45 S.W.3d 777, 779 (Tex. App.

— Texarkana 2001 , orig. proceeding) ( “ [T]he mere fact t hat 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 jud icial resources ’

. . . . To hold otherwise would

4 Mandatory venue provisions are reviewable by mandamus. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 15.0642 ( “A p arty may apply for a writ o f m andamus with an a ppellate court to enforce the mandatory venue provisions of this chapter.”).6

mean that virtually any reversible error by a trial court would be a proper subject for manda mu s review. ” ).

“ The Texas Supreme Court has also held, however, that an erroneous venue determination may resul t i n a writ of mandamus if the wast e of judicial resources is so great as to make the situation a truly exceptional circumstanc e. ” In re Ci ty of Irving , Tex. , 45 S.W.3d at 779 (citing In re Masonite Corp

. , 997 S.W.2d at 199 ) (finding appellate r emedy inad equate when trial court acted on it s own motion and “ effectively treated the nonresident plaintiffs ’ motions to sever as motion s to transfer v enue and granted them ” )

. In Team Rocket , another case finding extraordinary circumstances, the trial cou rt transfe rred venue from Harris County to Wi lliam son County, the location of Team R ocket ’ s principal place of business. After the trans fer, the plaintiffs nonsuite d the case and immediately refiled the same claims in Fort Bend County. Team Rocket moved to transfer venu e back to Williamson County b ased on the trial cou rt ’ 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 ve nue determination has been made, that determination is conclusive as to those parties and claims . . . . [ a nd ] cannot be overcome by a nons ui t and subsequent refiling in another county. ” Id

. at 260. It concluded , When

. . . a trial court impro perly applie [s] the venue st atute and issue[s] a ruling that permits a plaintiff to abuse the legal system by refiling h is case in county after c ounty , which would inevitably result in considerable expense to taxpayers and defendants, requiring defendants to proceed t o trial in the w rong county is not an adequate remedy.7

Id

. at 262 ; see Henderson v. O ’ Neill , 7 97 S.W.2d 905, 905 (Tex. 1990) (pe r curiam) (orig.
proce eding) ( holding that mandamus wa s appropriate remedy where trial court ruled on motion to transf er without giving suffi c ient notice, made no attempt to follow the rule, and acknowledged deviat ing from the rule); In re Lowe ’ s Home C t rs . , L.L.C

. , 531 S. W. 3d at 864 , 875 ( holding that ma ndamus wa s appropriate remedy where trial court denied Lowe ’ s motion to
t ransfer from Starr County to Cameron County ; plaintiffs later nonsuited and refiled in Hidalgo County after it was discovered that its original venue pleadings were incorre ct or fraudulent) ; In re Berry GP , Inc

. , 530 S.W.3d 201 (Tex. App.

— Beaumont 2016, or ig. proceeding) ( p er curiam) ( holding that mandamus was appr opriate remedy wher e trial court failed to transfer to county of proper venue when plaintiffs failed to plead and prove venue fac ts, resulting in abuse of judicial system) ; In re Reynolds , 369 S.W. 3d 638, 657 (Tex. App.

— Tyler 2012, orig. proceeding) ( holding that man da mus was appropriate remedy where severance and venue were intertwined and relator would be unable to obtain reversal of incorrect ven ue ruling on appeal unless relator also obtained reversa l of incorre ct denial of sever ance); In re Shell Oil C o. , 128 S.W.3d 69 4 , 697 (Tex. App.

— Beaumont 2004, orig. proceeding) ( h olding that mandamus w as appropriate remedy where trial court refused to grant motion to tra nsf er to previously determined county of venu e) ; c

f

. 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 noti ce to parties and on its own motion , transferred guardia nsh ip and proceedings incident thereto to Da llas County) ; Boyd v. Ratli

ff , 5 4 1 S.W.2d 223 , 225

– 26 (Tex. App.

— Dallas 1976, writ d ism ’ d) ( holding transfer for best interest of estate pertain ed “ only to the p roceedings specifically set8

forth in ss 6 and 7 ” and find ing suit for declaratory judgment not a pr oceeding set fort h in either section )

. 5
Here , we do not find any “ extraordinary circumstance s ” which might render an ordinary appeal an inadequate remedy. See In re Team Rocket , L.P

. , 256 S.W.3d at 262. As a res ult,

r elator has failed to show entitl emen t to mandamus rel ief. W e , therefore, deny the petition for a writ of mandamus.

Scott E. Stevens Jus tice Date Submitted: December 21 , 2022 Date Decided: December 22 , 2022

5 See Act of Mar c h 17 , 19 55, 54 th Leg., R.S., ch. 55, §§ 6 , 7 , 1955 Tex. Gen. Laws 88, 91

– 92 ( formerly codified at T EX
. P ROBATE C ODE §§ 6, 7).