*1 844 The requires Case. decree Richard to conflicting Richard has identified no other
pay: provision merely of the decree but restates
All purchase money indebtedness his criticism the division of assets. Is- owed in connection with Case trac- sue four is overruled.
tors Respondent herein awarded to present approximate amounts of Holding V. $74,643.00 $8,977.00. and judgment trial court is af- The decree awards Richard several trac- firmed. tors but not does indicate which two were encumbered. We note that Richard’s first inventory
amended appraisement and
identifies two tractor loans. was for One
$74,643 and encumbered a 210MX Case $8,977
tractor. The second was for and
encumbered a 7230 Among Case tractor.
the tractors awarded Richard are Case MFWD,
IH MX a 1996 Case IH 7230 In re Preston GRAHAM. and a IH 1994 Case In MFWD. his No. 03-07-00705-CV. inventory appraisement, Richard val- $25,500 ued the 7230 at and the 1994 Texas, Appeals Court of $23,000. 7230 at Austin. The MX 210 Richard was awarded and March 2008. $74,643 he obligated debt to as- $8,977 clearly sume are connected. The Rehearing April Overruled debt could be associated with either of the Nothing tractors received. suggests
decree that this debt was associ-
ated with either the 1996 or 1998 Case thus, received;
tractors Jacqueline no con-
flict was shown. complains
Richard next that he equipment purchased
was awarded the af separation
ter but that Jacqueline received gooseneck trailer. no There is conflict
between these two awards. Richard was working equipment
awarded cattle “[a]ll
bought separation Respon after possession.” Jacqueline
dent’s award
ed a “Goose neck trailer.” The decree
does not gooseneck indicate trail cattle, working
er was used for that it was
purchased by parties’ Richard after the
separation, that it possession. his
Finally, complains Richard that several transparent
of his awards are awards
are of value. if Even we assume that correct,
his description the decree is
Steve McConnieo and Jane M. N. We- bre, Scott, McConnieo, L.L.P., Douglass & Austin, TX for Relator.
George Smith, Rose, Finley, Finley, S. Price, PC, Harp & Angelo, San William Johnston, Waco, TX, Wilson for Real Par- ty In Interest. PATTERSON,
Before Justices PURYEAR and HENSON.
OPINION HENSON, DIANE Justice. Relator petitions Preston Graham for a writ of directing mandamus county court at law probate proceed- to transfer a ing from Tom Green County to Travis County. Because we hold that venue of stating, “Decedent was mandatory in cuted an affidavit underlying proceeding is grant and her conditionally domiciled county at the date of death.” petition.1 located in this Preston’s probate by the The will was admitted to A of a trial court’s denial court Tom Green constitutional pursuant to transfer venue February 8,2006. County on by manda provision venue is reviewable 15, 2006, Hanks disclaimed On March Prac. & Rem.Code mus. See Tex. Civ. estate, with her interest Dianne’s 2002). (West 15.016, §§ A Ann. 15.0642 go would being result the estate involving mandatory mandamus sons, Barclay two Preston Dianne’s stan using reviewed abuse-of-discretion *4 Barclay Graham died on Octo- Graham. Co., R.R. dard. In re Missouri Pac. 19, 2007, April On Hanks ber 2006. (Tex.1999). Because it is S.W.2d in Tom Green against filed suit Preston adequate that there is reme presumed County, seeking declaratory judgment mandatory dy for a failure to enforce a invalid. The con- that her disclaimer was statute, required the relator is not venue county subsequently stitutional court remedy adequate to show lack of on regarding the issue transferred contested appeal. Id. at County to Court Hanks’s disclaimer provides mandatory probate The code County. Law 2 of Tom Green No. of probate venue for the and adminis- wills to of all moved transfer venue Preston tration of Tex. Prob.Code Ann. estates. Tom from probate proceedings (West 2003). Mandatory § 6 venue lies in that asserting to Travis resided, county if the where the deceased at Dianne in Travis was domiciled place had a or fixed the deceased domicile hearing, After a the of her death. time 6(a). § If of residence Texas. Id. the court at law denied Preston’s county the in Texas had no domicile deceased died but transfer venue on November State, or fixed of in the residence now mandamus re- 2007.2 Preston seeks county venue is either the where of compel lief to the transfer the entire the deceased’s was lo- County. probate proceeding to Travis at cated the time her the 6(b). county § died. where she Id. probate 6 of the code Section case, titled, probate wills ad The in this Dianne for deceased Hanks “Venue Graham, 16, 2006, in January on Tra- ministration of estates decedents.” died Hanks cannot move to County. probate argues vis Her will filed for Preston mother, County by under 6 because the Fre- transfer venue section is a “matter suit her disclaimer regarding da Nutt Hanks. When the will was filed estate,”3 pro- than a each to an rather probate, Preston and Hanks exe- incident Graham, relator, requesting transfer of the en- Because resolution and 1. Preston case, underlying probate proceeding in the probate deceased tire Graham, Dianne the same sur- Hanks share county court transferred constitutional name, by parties we will refer to these their county venue to the court contested issue first to avoid names confusion. August 2007. law on the contested matters of the provides that courts exer- probate 3.The code proceeding probate were transferred to the jurisdiction pow- cising shall have the probate law, county filed a court at Preston also mo- to an estate.” er to "all matters incident hear court, county re- tion in the constitutional (West 5(f) Supp. §Ann. See Tex. Prob.Code questing venue issue be that the contested 2007). court at law for transferred to bate proceeding, and therefore section 6 decree” is not defined in the “Final apply. However, does not probate Preston’s mo- code. At least one court up has tion to transfer venue was not held a challenge limited to venue under section 8(c)(1) the contested matter brought of Hanks’s disclaim- after the trial er, but requested court entered an proceed- admitting transfer of “all order the will ings probate. Izer, connected with In re Cause Number Estate 06P045, 481, 482, Estate of Dianna 484 (Tex.App.-Corpus Hanks Graham.” n.r.e.). result, As a Christi writ refd provi- Like the party Izer, chapter challenging sions of venue in applicable 6 are Preston to this sought a venue proceeding.4 transfer of probate proceeding after the will had been admit Hanks argues further that Preston ted probate. An independent adminis cannot now challenge venue because venue probate tration —the employed method determined the constitutional coun Dianne’s estate —is not considered closed ty court’s admitting order pro will to until all property has been distributed and bate, and that order ais final decree that debts paid fully have been as the assets subject is not to collateral attack. See id. *5 allowed. See Texas Commerce Bank-Rio 8(e) § (stating that a court in which there Correa, Valley, Grande N.A. v. 28 S.W.3d has been application filed an probate for a 723, 2000, (Tex.App.-Corpus 728 Christi proceeding jurisdiction has full to deter denied). pet. pro Because Hanks has not mine probate venue of the proceeding and vided, found, any nor have we substantial any related proceeding, and its determina authority proposition for the that an order tion shall subject not be to collateral at admitting probate a will to is a “final de tack). However, because Preston’s motion 8(c)(1), cree” for purposes of section we to transfer venue seeks transfer of the 8(c)(1) hold that preclude section does not probate entire proceeding as discussed Preston’s to transfer venue. above, attack, it is not a collateral a but Preston contends Dianne was domi- direct challenge to the venue determina in ciled Travis County at the time of her tion in the order admitting the will to death. Hanks asserts venue is probate. in Tom Green because Dianne was death, domiciled there at time of her
Hanks further attacks Preston’s alternatively, because Dianne had no fixed motion on a third procedural and final place of residence in Texas at the time of ground. probate provides code death, her and her was transfer proceedings of for want of venue located in Tom Green See Tex. “[ijf it appears to the court at any time (b) (West 2003). 6(a), § Prob.Code Ann. before the final decree that the proceeding was in commenced a court which did not Before reviewing regarding the evidence 8(c)(1). have priority § of domicile, venue.” Id. we must first address whether Hanks contends that the order admitting Preston challenge. has waived his venue probate the will to was a “final decree” for He initially executed an affidavit titled purposes 8(c)(1), of section Facts,” and therefore “Proof of Death and Other when the proceeding may not be transferred for probate will was filed for want of venue. County, stating, “Decedent was domiciled necessary holding Because it is not to our sions of section incident an 6 matters case, express opinion this we regarding no estate. applicability provi- of the
849 Co., Duffy make. See v. ColePetroleum principal was located property and (1928) 387, 495, county at of Preston 496 this the date death.” 117 Tex. 5 S.W.2d stating that his as- of reciting later filed affidavit domicile (noting that affidavit in Tom sertion of domicile “merely stated purposes for venue parties a incorrect. had been mistake was conclusion”). Preston, lay per- a legal a further that he unsure Preston stated was son, know expected could not be actually Proof of whether he read the stat- “domicile”when he legal definition of it, he not signed Death before that he did ed, prin- and her “Decedent was domiciled it his of shock carefully review due to state cipal property was located this his that he over mother’s death,” expect- nor could he be the date request. it at signed Hanks’s of such legal to know ramifications ed Furthermore, Preston a statement. signed At the time Preston by independent counsel represented not Death, party not a to the Proof he was Death, he signed the Proof of when probate judicial A proceeding. admission party probate proceeding not a to the a makes a party when statement results previously time. This at that Court has disproves recovery right fact which his lay testimo- rely person’s “to on a Grocery or defense. H.E. Butt v. refused Co. Pais, (Tex.App.-San ny legal proper- 955 S.W.2d on the characterization of pet.). Antonio Preston argument she as to other ty to hold waived party time was not at the his statement Berger, theories.” Nesmith v. legal made, against it be used him cannot (Tex.App.-Austin 118 n. 6 S.W.3d proceeding judicial this admission. denied). Similarly, will not pet. Lawyer v. See Richards Commission regard- initial statement rely on Preston’s Discipline, (Tex.App.- without ing domicile—a statement made *6 2000, no For pet.). Houston [14th Dist.] who urging and at the of Hanks counsel reason, the same Preston’s can statement against suit him—to brought has since against him a “quasi-admis not be used as argument his as to hold that he waived sion,” party’s which is a testimonial decla County. Pres- in Travis Because domicile contrary position. ration his waived, argument not been ton’s has Fidelity Mendoza v. & Guar. Ins. Under regarding now look to the evidence must Inc., (Tex. writers, domicile. 1980). the trial court The evidence before judicial estop- doctrine mailing that Dianne maintained a showed pel inapplicable is also Preston’s state in family’s budding at her office address ments, judicial estoppel applies only to County, in Tom Angelo, located Green San contradictory positions taken in a subse accounts, her bank she used for which Galley v. Associated quent proceeding. Apollo bills, license, general business driver’s (Tex. vs., 177 S.W.3d Ser the Dianne also used correspondence. pet.). App.-Houston Dist.] [1st building register office address to family initial statement Preston’s County, although she in Tom Green vote proceeding that probate made in the same While actually voted there. never transfer, judi moves to is not he now a Tom tax returns reflect Dianne’s income estopped making from contradicto cially address, County listed address Green ry statement. rather Angelo, office in San post is a box Furthermore, location. than a residential matter,
As an
it must be
equitable
that can
found
income tax returns
be
initial statement was
noted
Preston’s
2000-2003,
record,
years
from tax
qualified
conclusion that he was not
in
legal
they
indicate that
prepared by
were
course to become certified as a registered
Austin-based accountant.
massage therapist, and obtained a con-
handgun
cealed
According
license.
Whitt,
Rita
family
the Hanks
secretary,
Whitt,
Dianne
returned to Tom Green
testified that
in
office
Tom Green
County
year
once a
family
business
awas
commercial property used
meetings and once for her father’s funeral
by several members of
family,
includ-
years
in the five
before her death.
Dianne,
ing
to transact business and han-
correspondence.
dle
Hanks testified by affidavit that
Whitt further testi-
Dianne
frequently
hotels,
stayed
fied that in
in
years
occasionally
the five
she had been
lived in a Winnebago, and that the
employed by
family
family,
she never saw
building
office
Tom Green
anyone
sleep overnight at the office build-
equipped to hook up an RV. Dianne did
ing in Tom
Dianne did not
a Winnebago
time,
own
at one
deducting
own
housing
residential
mortgage
interest on her
tax
income
County at the time of her death.
return as
mortgage
home
interest. How-
The record reflects that in
Dianne
ever, Whitt testified that Dianne
sold
Austin,
sold a condominium located in
Winnebago
in September
and there
which she had declared as her residential
is no evidence that
purchased
she ever
homestead,
signed
a lease at the Mesa
another one. Hanks and
also testi-
Whitt
apartments,
Verde
also
located Austin.
fied that
working
Dianne had been
to re-
She also rented
garages
three
at the Mesa
model a ranch
house in Pecos
but
apartments
Verde
storage
purposes.
the work
completed
was not
at the time of
In both the condominium and the Mesa
her death.
apartment,
Verde
Dianne used the master
Wilson,
Butler,
Duke
Reute
and Steven
bedroom as an office rather
than as a
Shepherd,
Dianne,
personal
friends
each
area,
sleeping
in order to deduct the rent
testified
affidavit that Dianne had ex-
and utilities from her taxes as a business
pressed to them
enjoyed
that she
living
expense.
In the Mesa
apartment,
Verde
Austin and would
Angelo
never live
San
Dianne used a breakfast nook
a sleeping
again.
area. She continued to renew the lease on
her Mesa
apartment
Verde
until the time
The two essential elements of
*7
of her
frequently
a
writing letters to
determination of domicile are “residence
Mesa
in
management
Verde
fact” and intent
place
about how much
“to make the
of
Florida,
enjoyed
she
premises.
the
residence one’s home.”
v.
secured
Texas
She
398, 424,
306
homeowners
U.S.
59 S.Ct.
83 L.Ed.
possessions
insurance for her
(1939).
at
817
apartment
the
When a decedent makes state
personal
and stored
pos-
there,
regarding
ments
residence —such as voter
sessions
including kitchen utensils
registration
are inconsistent
with
cleaning supplies. Affidavits from
—that
residence,
the facts showing actual
such
friends and neighbors reflect that Dianne
statements “are of slight weight” and can
frequently
guests
entertained
for meals at
not
establish residence in fact. Id. at
the apartment
great
and took a
deal of
Instead,
controlling
S.Ct.
the
fac
in
pride
the
garden
extensive
that she had
tor
place
is “the actual fact as to the
grounds.
cultivated on the
residence and decedent’s real attitude and
In addition to
mailing
the
address at the
respect
intention with
to it as disclosed
in
County,
office
Tom Green
Dianne also
his entire
Id.
course
conduct.”
post
maintained two
office
in
boxes Austin.
Austin,
in
Florida,
While
Dianne attended counsel-
In
v.
a
Texas
decedent’s
services,
ing
participated in
Texan,
a six-month frequent statements that he was a
one. Further
another
purchased
in had not
including
registering
his act of
to vote
more,
may
Dianne
have been remod
the
while
Texas,
to
were insufficient
overcome
County
in
to
in order
eling a home
Pecos
in fact
showing that his residence
evidence
future,
in
an established
reside there
actually
place
Massachusetts —the
was
case,
County
Travis
this
domicile—in
cen-
furnishings
his
kept
where
—is
that residence
lost unless she leaves
not
at 425-
personal
his
activities.
Id.
tered
return.
Com
an intent not to
See
with
Similarly,
use of
The evidence that Dianne petition for writ of ally grant Preston’s dened, guests, per- entertained stored directing court mandamus possessions, and conducted generally sonal County. to to transfer this case Travis law day-to-day County con- activities Travis if the will issue trial court The writ clusively fact and establishes residence in opinion. with fails to act accordance this home. intent make the residence her Dissenting Opinion Justice Furthermore, sup- there is evidence PATTERSON. port finding that Dianne domiciled PATTERSON, Justice, P. JAN dissenting. showing In of the light evidence Dianne’s place fixed residence majority original proceeding, In this County, disagree
in Travis with the trial court’s denial concludes argument Hanks’s alternative that venue trans- Preston motion to relator Graham’s is Tom Green where Tra- from fer venue Tom located, be its Dianne’s abuse of discretion. vis grant cause she no fixed of residence court relator’s had The trial declined *8 6(b) § had years in Texas. Tex. Ann. made after the will See Prob.Code motion 1½ (West 2003). only and after probate that The record reflects been admitted to the ma- Winnebago erupted.1 2002 and had litigation Dianne sold her your argument every- that will was You said twice in. 1. Decedent Dianne Hanks Graham’s 2006; body you filed—when the was fine when February probate admitted to relator County. Ev- was case filed initially to venue in filed a motion transfer everybody agree- erybody got along; was in 2007; hearing venue May on the and Coun- when it was filed in Tom Green ment was At held in November 2007. only change the venue ty. The decision to hearing, expressed the trial court concern agree- up people became out of came when with relator’s venue motion: me, ment, concerning it to that and that’s 852
jority improperly judgment pellate its would in substitutes court a similar circum that of for the trial court in contravention at stance. Id. 242. review, of of well-established standards I majority The concludes that respectfully dissent. not Tom County, and was actions, “In mandatory venue mandamus Dianne Hanks decedent Graham’s domicile only look to trial whether the court that, at the time of her and under clearly ruling upon abused its discretion in provisions of the motion.” Magne In re Applied Chem. Code, Texas Probate the trial court Corp., 114, (Tex.2006); sias 206 S.W.3d 117 required to transfer the case to Travis Packer, 833, v. Walker 827 839 S.W.2d 6(a) § See Tex. Prob.Code Ann. (Tex.1992). clearly “A trial court abuses its (West 2003).2 The elements of domicile if ‘it discretion reaches a decision so arbi pur- are actual residence “coupled with the
trary and unreasonable as to amount to a
” pose make the place
of
one’s
residence
prejudicial
clear and
of
error
law.’
Surber,
home.”
permanent
Maddox v.
677
Walker,
(citation
the At time of her court trial *9 Tom was in decedent’s parties presented that the nized had conflict- County, supporting de- the trial court’s Green ing evidence: a lot of infor- "[E]ach side had dece- motion to transfer venue if nial of the they presented support mation in of either place have dent did not a domicile or fixed argument.” at the time of her death. residence intended Travis At her there evidence that she never time of was County permanent home. Dece- to be her in evidence that decedent had a residence consistently in official docu- dent declared apart- renting was an —she ments, will, her including registra- voter in ment Austin. issue then becomes certificates, income tax returns tion and coexisting she had a intention to whether Tom that her residential address was in home, permanent make Austin her as dis- time including during the temporary a residence. tinguished from renting apartment was an period that she Steed, id.; see also 152 S.W.Sd See testimony that she in Austin.3 There was referring (“[L]anguage in the statute to apartment used Austin to and her referred following place ‘fixed of residence’ “office,”4 and was in “tran- that she signifies] ... permanent ‘domicile’ a word was in Travis on sition” —that she residence, distinguished from one which purposes and temporary basis health “ranch in while she remodeled her house” only temporary.”). house County.5 Pecos Her ranch remodel intentions, although As to decedent’s accommodations “to receive a mo- included evidence, contrary there there was was home,”6 “a tor and she had wall of the also documentary years, they her For a 3. The before the trial but were never home. evidence Winnebago years court included decedent’s will that was exe- number of she had in, cuted in her income returns for the tax live and be- which she could drive and years through regis- her voter and fore had similar travel that she another tration certificates from and 2005. The She often referred to these travel home. physical consistently address that she used that as her home. I believe she sold homes building family's was the address of her office Winnebago in about because she Angelo. in San pain having and in her so much trouble back, manage She that she could not it. manager secretary 4. Decedent’s office and surgeries, and in last had four back by Rita Whitt averred affidavit that decedent years sought help at her life medical apartment treated the in as an Austin office places help trying to find numerous purposes for income tax of the total —"100% Angelo pain If that she endured.... San apartment Austin office and office utili- rent domicile, say I she was not her then would ties/supplies were [decedent’s] deducted on living homes in transition between income [for 2003] tax returns 2001 to as a principally major physical to emo- due and expense,” that business decedent treated her stay pain. She to in tional needed hotels motor her home as home for income tax possible much as for the conven- motels as purposes it until she sold in dece- service. ience of room dent did in a after not reinvest homestead she Nutt Decedent’s first cousin Warren home, sold her in motor and that Whitt's by decedent averred affidavit that “loved presence, "always decedent referred her live freedom” and that her favorite with apartment office, Austin as an not as a home.” to be the ranch house. Another cousin mother Nutt The decedent’s Freda Hanks Nancy by Nutt averred affidavit that Dece- Jo “small, by averred affidavit in decedent’s “systems taught dent her all of decedent's office,” efficiency Austin she maintained “du- apartment her in Austin” so that Nutt office plicate Ange- of what she had in her San files help with her busi- would be able decedent efficiency in the lo office. The one bedroom ness decedent be free travel in "would office, apartment into was made her and the her a new RV home and be at Pecos actually bed she it was she used when needed Nancy Nutt also averred ranch house.” Jo a little nook.” breakfast would in hotels and use that decedent "live 5. Freda Nutt Hanks averred affidavit that room service.” daughter her did not have a residence at the time of death and that did not believe during her she Hanks also averred that 6.Freda Nutt daughter "ever Austin that her called daughter’s years death before her three home”: “spent much time and effort” that decedent house, remodeling that she was stayed places, the ranch various [Decedent] “supervising the often ranch remodel- apartments states over the at the rented several *10 bunding office Angelo] [in San remodeled GJP, INC.; Herting;
so that she Richard D. could drive her motor home Jaguar, Classic it Inc. and Dan garage, utilities, into like a up hook all Mooney, Appellants, conveniences, and other and use it as her home.”7 This evidence is some evidence v. that, although decedent had an apartment Avijit GHOSH, Appellee. Austin, she did not coexisting have a No. 03-04-00611-CV. intent to make Austin permanent Maddox, home and domicile. See Appeals Texas, Court of S.W.2d at 228. Austin. evidence, Based on this the trial court March 2008. could have concluded that decedent did not Rehearing April Overruled have a domicile or fixed of residence 6(a) in the state under section pro-
bate code and that venue was 6(b)
Tom under section where decedent’s principal
property was located. See Tex. Prob.Code (b). 6(a),
§Ann. Tempting it may be to
reweigh evidence, may not if we are review,
to serve our standards of recogniz-
ing the role of the trial court. I
would conclude that the trial court did not
clearly abuse its discretion in its venue I
ruling, deny would petition relator’s for a
writ of mandamus. ’ ing, remodeling completed that the Angelo 7. Rita Whitt averred that the San of-
just days designed before fice was so that decedent could decedent’s death. Rita Whitt "park a motor home inside her office’s ware- also averred that decedent had remodeled the large, house means of a motorized metal Pecos ranch house to receive a motor comfortably securely door. She could home. live at that location."