In re Thomas L. Magee--Appeal from Probate Court No 2 of Bexar County

Opinion by: Phylis J. Speedlin, Justice

Dissenting opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 26, 2004

The majority denies Magee's petition for a writ of mandamus because "the record does not show that the trial court failed to exercise a legal, nondiscretionary duty to rule." I disagree. Although the trial court did not refuse to rule explicitly, it did so implicitly by sending the parties and their lawyers off to obtain appraisals of the estate's assets and compile an inventory before they scheduled a continuation of the hearing on Magee's forcible entry and detainer action. See Tex. R. App. P. 33.1(a)(2)(A) (error is preserved by implicit ruling). I would issue the requested writ of mandamus to compel the trial court to rule on Thomas L. Magee's forcible entry and detainer action.

This mandamus proceeding arises out of Cause No. 2003-PC-1128, styled In the Estate of Barbara A. Magee. Mrs. Magee's son, Thomas L. Magee, is the executor of her estate and the successor trustee of The Thomas E. Magee and Barbara A. Magee Revocable Living Trust. As successor trustee, Thomas L. Magee was immediately vested with "[a]ll rights, titles and interests in the property of the Trust," which includes Mrs. Magee's home at 216 Twilight Terrace. At the time of Mrs. Magee's death, the Twilight Terrace home was occupied by Mrs. Magee's other son, Michael Magee, and his family. Despite Thomas L. Magee's demand, Michael Magee and his family have refused to relinquish possession of the premises. Accordingly, Thomas L. Magee filed a forcible entry and detainer action seeking eviction of Michael Magee and his family.

"The forcible detainer action is the procedure by which the right to immediate possession of real property is determined." Ward v. Malone,115 S.W.3d 267, 270 (Tex. App.-Corpus Christi 2003, pet. denied) "It is a special proceeding governed by particular statutes and rules," "created to provide a speedy, simple and inexpensive means for resolving the question of the right to possession of real property." Id. "To preserve the simplicity and speedy nature of the remedy, the applicable rule of civil procedure provides that 'the only issue shall be as to the right to actual possession; and the merits of the title shall not be adjudicated.'" Id. "Thus, the sole issue in a forcible detainer action is who has the right to immediate possession of the premises." Id.

At the hearing on the FED action, Thomas L. Magee proved he was entitled to present possession of the Twilight Terrace home. However, after hearing the evidence, the trial court appears to have lost sight of the objective of a forcible entry and detainer action and, rather than decide the right to immediate possession, sent the parties and their lawyers off to obtain appraisals of the estate's assets and compile an inventory - neither of which is relevant to the issue of the present right to possession. Thomas L. Magee's attorney reminded the court that the sole issue before it was the present right to possession:

Mr. Miller: I don't have any objection to somebody doing an appraisal on the house. Judge, the issue today though - this is a [f]orcible [e]ntry [and] [d]etainer [a]ction. And I don't have to tell you that the only issue before the Court is present possession of the house.

The Court: But I want to wrap it up, because these guys can't afford to spend money talking about other issues.

The trial court then directed the parties, when the inventory and appraisals were completed, to schedule another hearing. So far as our record reveals, neither party has done so.

The majority holds "the record does not show that the trial court failed to exercise a legal, nondiscretionary duty to rule." I disagree. Thomas L. Magee's attorney proved his right to present possession of the Twilight Terrace home and asked the trial court to rule that Thomas L. Magee was vested with the present right to possession; and the trial court implicitly denied his request by directing the preparation of an inventory and appraisal and the rescheduling of another hearing. No more is required. See Tex. R. App. P. 33.1(a)(2)(A) (error is preserved by implicit ruling). Accordingly, I would issue the requested writ of mandamus to compel the trial court to rule on Thomas L. Magee's forcible entry and detainer action.

Sarah B. Duncan, Justice

1. This proceeding arises out of Cause No. 2003-PC-1128, styled In the Estate of Barbara A. Magee, pending in the Probate Court No. 2, Bexar County, Texas, the Honorable Tom Rickhoff presiding.