01-15-00287-CV
FILED IN
NO. st 1 COURT OF APPEALS
HOUSTON, TX
March 27, 2015
CHRISTOPHER A. PRINE,
FIRST IN THE CLERK COURT OF APPEALS
HOUSTON, TEXAS
In Re Jessica Bachelor
Original Proceeding From the 246th Judicial District Court of Harris County, Texas Cause No. 201457427
PETITION FOR WRIT OF MANDAMUS
Stephen Lekas
Attorney at Law
6001 Clinton Dr., Houston, TX 77020 (7 13) 67 1-9494
(7 13) 67 1-9496
12188400
ATTORNEY FOR RELATOR
Temporary relief requested
IDENTITY OF PARTIES AND COUNSEL
PARTY: ATTORNEY:
Jessica Bachelor Stephen Lekas Relator TX Bar# 12188400 (Petitioner in trial court) Attorney at Law 6001 Clinton Dr.
Houston, TX 77020
Erica Bachelor Tel#: (7 13) 67 1-9494 Real Party in Interest Fax#: (7 13) 671-9496 slekas@aol.com
(Respondent in trial court)
Matthew Skillern
Attorney at Law
HON. Charley Prine 701 N. Post Oak, Suite 207 Respondent Houston, TX 77024 (Judge of Trial Court) Tel#: (713) 229-8555 Tel#: (713) 481-8800
TB# 24041926
matthew@skillernfirm.com
3OgthJudicial District Court 1115 Congress
Houston, TX 77002
Tel: (713) 274-4500
TABLE OF CONTENTS
Page
IDENTIFY OF PARTIES AND COUNSEL ....................................... 2 INDEX OF AUTHORITIES ......................................................... 4 STATEMENT OF THE CASE ...................................................... 5 STATEMENT OF THE JURISDICTION .......................................... 5 ISSUE PRESENTED ................................................................. 5. 6 STATEMENT OF FACTS ........................................................... 7 ARGUMENT AND AUTHORITIES ........................................ 8-12 PRAYER -RELIEF REQUESTED ................................................ 12 CERTIFICATION OF FACTS AND VERIFICATION ........................ 13.14 CERTIFICATE OF SERVICE ...................................................... 16 CERTIFICATE OF CONFERENCE .............................................. 15 CERTIFICATE OF COMPLIANCE .............................................. 15 APPENDIX ............................................................................ 18
INDEX OF AUTHORITIES
Cases Page In Re Calderon, 96 S.W. 3rd 7 11 (Tex. App. - Tyler 2003) .............................. 8 Dallas Fire Insurance Company v. Davis, 893 S.W. 2nd 288 (Tex. App. - Forth Worth 1995) ................... 10 In Re Elizabeth Ann Lambdin, (No. 07-03-0328-CV-8-20-03)(Tex. App. - Amarillo 2003) ......... 10,ll In Re Green, 385 S.W. 3rd 665 (Tex. App. - San Antonio 2012) ................... 8 Grozier v. L-B Sprinkler & Plumbing Repair, k h writ denied) ....
744 S.W. 2nd306 (Tex. App. - ~ o r t k ~ o 1988, 11 Hoffman v. Hoffman, 82 1 S.W. 2d 3 (Tex. App. - Forth Worth 1992, no writ) ............ 9 MO. P. R. R. Co., 998 S.W. 2d 2 12 (Tex. 1999) ............................................. 8 In Re Nicolette Milton, 420 S.W. 3rd, 245 (Tex. App. - Houston (1 Dist) 20 13) .......... 899 In Re Prudential Ins, Co. of Am. 145 S.W. 3d 124, 135-136 (Tex 2004) ................................. 8 In Re Rome, 182 S.W. 3rd 424 (Tex. App. - Eastland 2005) ........................ 8
STATUTES
Tex. Fam. Code 5 103.001 ................................................................. 6, 12
Tex. Gov. Code 5 22.221 (b) .................................................................. 5
STATEMENT OF THE CASE
Relator Jessica Bachelor submits this petition for writ of mandamus complaining of the order of Honorable Charley Pine presiding Judge of the 246& Judicial District Court of Harris County, Texas. For Clarity, relator is referred to as Jessica Bachelor; respondent the Honorable Charley Prine is referred to by name and the real party in interest is referred to as Eric Bachelor. This is a suit for divorce and child custody proceedings filed by relator in the 246" Judicial District Court of Harris County, Texas on 10-2-2014 App. 1., Cause No. 201457427. The orders complained of were orders of abatement granted on 1-27-2015 A p . 12 and an order to transfer the case granted on 2-20-2015 by Judge Prine App. 16.
STATEMEMENT OF JURISDICTION This Court has jurisdiction to hear this original proceeding under Texas Governrnent Code $22.221(b). Issues Presented 1. The Harris County trial Court abused its discretion in ordering an abatement A . 12 in its earlier suit, subsequent to a prior abatement by the Smith County trial Court App. 5, where the later divorce action was filed App. 2.
2. The Harris County 246" Trial Court abused its discretion in ordering a Motion to Transfer ADD.16 after granting an abatement.
3. The Harris County 246" Trial Court abused its discretion in ordering a Motion to transfer App. 16 after the relator and her child resided in Harris County over 90 days, in violation of Tex. Fam. Code 5 103.OO1.
STATEMEMENT OF FACTS
A suit for divorce and custody proceeding was filed by the relator Jessica Bachelor on 10-2-2014 App. 1 in Harris County, Texas where she and her child lived. Subsequently Eric Bachelor the real party in interest filed a divorce and custody proceeding in Smith County on 10-8-2014 A m . 2. Thereafter Jessica Bachelor relator file a plea in abatement App. 3 in Smith County that was granted on 12-4-2014 App. 5.
On 12-12-2014 the real party in interest Eric Bachelor then filed a plea in abatement in Harris County, Texas along with a Motion to Transfer the case to Smith County on 1-23-2015 App. 6 & 7. Relator amended her pleadings to show residency in the County of 90 days ADD.11. The plea of abatement was granted by Judge Prine on 1-27-20 15 ADD.12. The Motion to transfer filed by the real party in interest on 12-12-2014, was granted on 2-20-20 15 by Judge Prine App. 16.
ARGUMENT AND AUTHORITIES To be entitled to mandamus relief the trial Court must clearly abuse its discretion and petition lacks an adequate appeal. In re Prudential Ins Co of Am 145 S.W. 3d 124,135-136 (Tex. 2004).
The Texas Supreme Court has held that reversible error alone is insufficient to warrant mandamus relief and that generally venue decisions are incidential trial rulings correctable by appeal. In Re Rome 182 S.W. 3d 424, 426 (Tex.App. - Eastland 2005). The Texas Supreme Court has made an exception however for cases involving suits affecting parent-child relationship, reasoning that the need to expediously resolve custody and support issues makes ordinary appeal inadequate. M0.P.R.R. Co. 998 S.W. 2d 212,215 (Tex 1999) In Re Nicolette Milton, 420 S.W. 3d 245,252 (Tex.App. - Houston (1'' Dist) 2013). In re Calderon 96 S.W. 3d 71 1, 715 (Tex.App. - Tyler 2003) ("Remedy by regular appeal though available is frequently inadequate to protect the rights of parents and children to trial in a particular venue.") The sensitive child custody and visitation issues involved in this case render ordering appellate review of the venue issue inadequate In Re Nicolette Milton at 253. In Re Green, 385 S.W. 3d 665, 671 (Tex. App. San Antonio 2012), the San Antonio Court of Appeals found the Petitioner failure to satisfy the residence requirement was appropriate for mandamus relief.
Id at 67 ISSUE 1.
The Harris County trial Court abused its discretion in ordering an abatement App. 12 in its earlier suit APP. 1, subsequent to a prior abatement by the Smith County trial Court App. 15, where the later divorce action was filed App. 1.
In this case, the Relator filed a suit for divorce and child custody in Harris County, Texas on 10-2-2014 APP. 1, prior to the real party in interest filing a divorce and child custody proceeding in Smith County on 10-8-2014 App. 2. The case in Smith County was abated on 12-4-2014 App. 5. Subsequently on 12-12- 2014, upon Motion by the Real party in Interest App. 6, the Respondent Judge Prine abated the case in Harris County on 1-27-2015 App. 12. On 1-23-20 15, prior to the hearing, the Relator had amended her pleading APP. 11 showing the residing requirement had been met. In fact, by the time the abatement hearing was had, the residency requirement had been met, as over 90 days had passed. The Court even agreed. RRI: 5-6 (entry of order 1-27-2015); RR1: 5 (motion to reconsider 2-3- 20 15).
In Re Milton, 420 S.W. 3d 245,252 (Tex.App. - Houston (1" Dist) 2013) the Court states, typically when the residence requirements have not been met the trial court abates the suit so that either party can meet the residency requirements. See also Hoffman v. Hoffman, 82 1 S.W. 2d 3, 5-6 (Tex.App. - no writ) holding that the trial court should abate until Petitioner meets residence requirements at which point Petitioner may file an amended Petitioner showing compliance with requirements Id. At 252.
The trial Court in a second abatement has no discretion to refuse to abate the second in favor of the first. Likewise the first Court has no discretion to abate it in favor of the second action. See Tex. R. Civ. P 39, 97 (a); Dallas Fire Insurance Company v. Davis, 893 S.W. 2d 288,292 (Tex. App. - Forth Worth 1995). Thus Judge Prine of the 246" Court of Harris County, Texas abused his discretion by indefinitely abating App. 5, RR1:5 (entry of order 1-27-2015) a case first filed App. 1, where the impediment to abatement had been removed App. 11, thus abating a case filed first App. 1, in favor of a case in Smith County filed second App. 2, which was previously abated App. 5. Judge Prine of the 246" trial Court then granted a Motion to transfer App. 16 the case to Smith County, on 2-20-2015. The Motion to Transfer was also filed 12-12-2014 App. 7. Issue 2 Judge Prine of the Harris County 246" Trial Court abused his discretion in ordering a Motion to Transfer Am. 16 after granting an abatement App. 8.
Judge Prine granted the real parties in interest abatement on 1-27-2015 App.
8, RR1:8 - (entry of order 1-27-2015). Then on 2-20-2015 granted the real party in
interest Motion to transfer App. 16, RR1:7 (motion to reconsider 2-3-201 5).
It is well settled that complaints about venue may be waive expressly or impliedly. In re Elizabeth Ann Lambdin (Tex. App. - Amarillo 2003) (NO. 07-03- 0328 CV, August 2003). The latter occurs when the party takes some action inconsistent with its position on the venue issue. Grozier v. L-B Sprinkler & Pumbin Repair, 744 S.W. 2d 306,3 10 (Tex.App. -Forth Worth 1988, writ denied). In Re Elizabeth Lambdin, Mother waived Motion to Transfer venue by participating in hearing to resolve Motion to enforce, before obtaining a ruling on the Motion to Transfer. In Re Elizabeth Ann Lambdin (Tex. App. - Amarillo 2003) (NO. 07-03-0328 CV, August 2003) See Id.
When a party does not first seek a ruling on a plea of privilege its benefits may be waived by submitting for the Courts determination matter on a plea in abatement.. . or invoking the judgment of the Court.. . and otherwise submitting to the jurisdiction of the Court. Id. Grozier v. L-B Sprinkler & Pumbin Repair, 744 S.W. 2d 306,310.
Here the real party in interest filed a plea in abatement and Motion to
Transfer at the same time on 12-12-2014 App. 6 &7, but proceeded to obtain a -
ruling on the plea in abatement on 1-27-2015 App. 8,24 days before the ruling on the Motion to Transfer APP. 16, thus waiving the Motion to Transfer.
Issue No. 3 Judge Prine signed an order transferring the case to Smith County on 2-20-
2015 App. 16, after the Relator and her child had resided in Harris County over 140 days App. 11 in direct violation of Tex. Fam. Code 103.OO 1, which requires the case remain in the County of the residence of the child. $103.001 of the Texas Family Code states "the original suit shall be filed in the County where the child resides, unless:" None of the exceptions apply. The child and her mother lived in Texas for six months and Harris County over 90 days App. 11. The child's father resided in Smith County. Judge Prime's action in transferring the case was an abuse of discretion.
PRAYER
Wherefore, Relator Jessica Bachelor requests that this Court issue a writ of mandamus directing Judge Prine of the 246'b Judicial District Court of Harris County, Texas to vacate his order of abatement granted 1-27-2015 and order to transfer granted 2-20-2015, under cause no. 2014-57427. Relator requests general relief.
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STEPHEN LEKAS 6001 CLINTON DRIVE HOUSTON, TX 77020 TEL# (7 13) 67 1-9494 FAX# (7 13) 67 1-9496 TBA# 12188400 slekas@,aol.com Attorney for Relator
RULE 52.3(J) CERTIFICATION OF FACTS AND VERIFICATION OF RECORD Before me, the undersigned authority, on this day personally appeared
Stephen Lekas, one of the counsel for Relator JESSICA BACHELOR, and upon his oath, stated that (i) he is the attorney for Relator in this cause in the underlying suit, No. 2014-57427, in the 246" Judicial District of Harris County, Texas; (ii) he has reviewed Relator's Petition for Writ of Mandamus and concluded that every factual statement in the petition is supported by competent evidence included in the appendix and record, and (iii) he has personal knowledge that the items in the appendix and record are true and correct copies of documents material to Relator's claims and are either pleadings that are on file in the underlying suit, hearing transcripts and exhibits, or orders signed by the trial court in the underlying suit in this cause in the underlying suit, No. 2014-57427, in the 246thJudicial District of Harris County, Texas.
STEPHEN LEKAS
SUBSCRIBED AND SWORN TO BEFORE ME on this $3 +& day of
THE STATE OF % \ e ~ c-&
My Co mission Expires:
2-zq-Z O I 6
*
% * I the Notary blic in this case, do hereby certify I am not an attorney in this case.
CERTIFICATE OF CONFERENCE As required by Texas Rule of Appellate Procedure 10.l(a)(5), I certify that I have conferred, or made a reasonable attempt to confer, with all other parties which are listed below about the merits of this motion with the following results:
Matthew Skillen, Attorney for Eric Bachelor.
I
STEPHEN LEKAS
3 - a 7-zo)<
Date
CERTIFICATE OF COMPLIANCE As required by Texas Rule of Appellate Procedure 52.10(a), I certify that I have notified or made a diligent effort to notify all parties by expedited means (such as by telephone or fax) that this motion for temporary relief has been or will be filed.
-
STEPHEN LEKAS
Date
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was mailedlemailed to the opposing counsel and Trial Judge by hand delivery on
Real Party in Interest via CMRR/email
Matthew Skillern Attorney at Law 701 N. Post Oak, S-207 Houston, TX 77024 Tel: (7 13)229-8555 Fax: (713) 48 1-8800 TB# 24041926 mattew@skillernfirrn.com
Trial Court Judge via hand delivery
Hon. Charley Prine 246thJudicial District Court 201 Caroline Houston, TX 77002 Tel: 71 3 2 ~ c / ! i / 5 0 C)
CERTIFICATE OF COMPLIANCE My name is Stephen Lekas, attorney for Relator in Interest, Jessica Bachelor. Pursuant to Texas Rule of Appellate Procedure 9.4(i); I hereby certify that this brief contains 2 5 35- words. This is a computer-generated document created in Microsoft Word, using 14-point typeface for all text. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.
"I
I
STEPHEN LEKAS
APPENDIX
Page
App 1 Original petition for Divorce, Harris County Texas ....................... A App 2 Original petition for Divorce, Smith County, Texas ...................... B App 3 Motion to Abate, Smith County, Texas ..................................... C App 4 Transcript Abatement hearing Smith County, Texas ..................... D App 5 Order to Abatement, Smith County, Texas. ................................ E App 6 Eric Bachelor Plea in Abatement, Harris County Texas ................. F App 7 Eric Bachelor Motion to Transfer, Harris County, Texas ................ G App 8 Jessica Bachelor's Response to Plea in Abatement, Harris County, Texas .......................................................... H App 9 Jessica Bachelor Response to Motion to Transfer, Harris County, Texas.. .......................................................... I App 10 Jessica Bachelor Motion to Reconsider, Harris County, Texas .......... J App 11 Jessica Bachelor second amended petition, Harris County, Texas ....... K App 12 Judge Prines order granting Eric Bachelor plea in abatement ............ L App 13 Erik Bachelor's Motion to Reconsider transfer, Motion to dismiss and Motion for additional fees and sanctions.. .................................. M App 14 Jessica Bachelor response to Eric Bachelor's Motion to reconsider Transfer, to dismiss and for additional fees and sanctions ............... N
App 15 Jessica Bachelor supplemental response to Eric Bachelor's Motion to Transfer .............................................................. 0 App 16 Judge Prines order transferring the case to Smith County ................. P