in Re: Terex Corporation Terex Cranes, Inc. Harnischfeger Corporation Anthony Crane Rental D/B/A Maxim Crane Works Curtis Shiflet, David Keener, Keith Clark, and Crane & Rigging Consultants, Inc.

Becker v. State COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ) IN RE: ) No. 08-03-00438-CV ) TEREX CORPORATION, ) AN ORIGINAL PROCEEDING TEREX CRANES, INC., ) HARNISCHFEGER CORPORATION, ) IN MANDAMUS ANTHONY CRANE RENTAL ) D/B/A MAXIM CRANE WORKS, ) CURTIS SHIFLET, DAVID KEENER, ) KEITH CLARK, and ) CRANE & RIGGING CONSULTANTS, INC., ) ) Relators. ) OPINION ON PETITION FOR WRIT OF MANDAMUS 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. For the reasons stated below, we deny relief. STANDARD OF REVIEW Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)(orig. proceeding). Moreover, there must be no other adequate remedy at law. Id. 1. Clear abuse of discretion 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. 2. No adequate remedy by appeal An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate. Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex. 1986)(orig. proceeding). Mandamus will not issue where there is "a clear and adequate remedy at law, such as a normal appeal." Walker, 827 S.W.2d at 840, quoting State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984). Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue "only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies." Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex. 1989), quoting James Sales, Original Jurisdiction of the Supreme Court and the Courts of Civil Appeals of Texas, in Appellate Procedure in Texas, § 1.4(1)(b) at 47 (2d Ed. 1979). APPLICATION OF THE LAW TO THE FACTS BEFORE THE COURT Relators argue that Judge Higgs clearly abused his discretion by transferring the wrongful death suit to the statutory probate court under the authority of Section 5B of the Probate Code (1) because Section 15.007 of the Civil Practice and Remedies Code, (2) which governs conflicts in venue provisions, mandates that Chapter 15's venue provisions control over the Probate Code. They also rely on Reliant Energy, Inc. v. Gonzalez, 102 S.W.3d 868, 874-75 (Tex.App.--Houston [1st Dist.] 2003, pet. granted), which held that Section 15.007 would be rendered meaningless if probate courts could transfer personal injury, property damage, and wrongful death suits to themselves. There is a split in authority among Texas appellate courts regarding the interplay between Section 5B of the Probate Code and Section 15.007 of the Civil Practice and Remedies Code. Those courts considering the issue have determined that Section 5B is a jurisdictional statute, not a venue provision. See In re Ramsey, 28 S.W.3d 58, 61 (Tex.App.--Texarkana 2000, orig. proceeding); Henry v. LaGrone, 842 S.W.2d 324, 327 (Tex.App.--Amarillo 1992, orig. proceeding); see also In re Houston Northwest Partners, Ltd., 98 S.W.3d 777, 780 (Tex.App.--Austin 2003, orig. proceeding). The Texarkana and Amarillo courts of appeals reason that a transfer under Section 5B does not create a conflict between two venue provisions, and therefore, Section 15.007 does not apply. The same analysis has been applied to Section 608 of the Probate Code (3) which permits the transfer to the statutory probate court of cases appertaining to or incident to a guardianship estate. See e.g., In re Houston Northwest Partners, Ltd., 98 S.W.3d at 780 (Section 608); In re J7S, Inc., 979 S.W.2d 374, 377-78 (Tex.App.--Houston [14th Dist.] 1998, orig. proceeding)(Sections 607 and 608 of the Probate Code); Lanier v. Stem, 931 S.W.2d 1, 3 (Tex.App.--Waco 1996, orig. proceeding)(Section 608). We are persuaded that the majority view of this issue is correct and will follow it here. Because the record before us does not reflect that the trial court clearly abused its discretion by entering the order transferring the wrongful death suit to the El Paso County Probate Court, we deny the relief requested in the petition for mandamus. November 25, 2003 /s/ Ann Crawford McClure ANN CRAWFORD McCLURE, Justice Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ. 1. Tex.Prob.Code Ann. § 5B (Vernon 2003). 2. Tex.Civ.Prac. & Rem.Code Ann. § 15.007 (Vernon 2002). 3. Tex.Prob.Code Ann. § 608 (Vernon Supp. 2004).