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In re Omni Hotels Management Corp.3/11/2005
ON PETITION FOR WRIT OF MANDAMUS
The controlling issue in this case is whether an agreement consenting to venue in Tarrant County and stipulating that all or part of the cause of action arose there should be given effect. Because the record does not reflect that the agreement was withdrawn, it remains in effect based on the record before us. We accordingly deny mandamus relief.
Matt King drowned in Cancun, Mexico while a guest at the Omni Cancun Hotel & Villa. His wife Lynn Neel King has not sued the Omni Cancun, but she did file a wrongful death and survival action in April 2003 in her individual capacity and as administratrix of her husband's estate against the relators, to whom we will refer as Omni. That suit was filed in a Tarrant County statutory probate court. Omni filed a motion to transfer venue to a district court in Dallas County. While that motion was pending, King and Omni filed a "Consent to Transfer of Venue" with the probate court signed by counsel for each party which said:
The parties to this action, through their attorneys, agree and consent to transfer of venue to a civil district court in Tarrant County, Texas, which is a county of proper venue.
Tarrant County is a proper venue in this matter because all or part of the Plaintiff's cause of action arose in Tarrant County. No mandatory venue statute requires that this action be maintained in the Probate Court of Tarrant, County.
Omni asserts that the day after this consent was filed, the judge of the probate court contacted its counsel, informing him that the court was not inclined to transfer the case to a district court in Tarrant County. That same day, Omni filed a letter brief with the Tarrant County probate court again urging it to transfer the case to a Tarrant County district court, but requesting that if the court did not do so, that a hearing on Omni's motion to transfer venue to Dallas County be heard and granted as soon as possible.
Omni's briefing states that about three weeks later, on October 29, 2003, a hearing was held on its motion to transfer venue to Dallas County, and the probate court granted that motion. Omni also contends that at the hearing, the probate court allowed Omni to withdraw the "Consent to Transfer of Venue." King asserts in her briefing that Omni "verbally attempted to withdraw the Consent to Transfer Venue; however, [King] did not agree to it either verbally or in writing." We do not have a transcript of that hearing or any other indication in the record regarding withdrawal of the agreement. We have only the probate court's order transferring the wrongful death and survival suit to a Dallas County district court.
About fifteen days after the Tarrant County probate court signed the transfer order, King filed a motion in the Tarrant County probate court asking it to transfer the case back to that court. The motion was granted. Omni's petition for a writ of mandamus was denied by the court of appeals.
Because the record does not reflect that the "Consent to Transfer of Venue" was withdrawn, we must assume that it remains in effect. We cannot presume, as Omni urges, that the probate court either voided the agreement or allowed Omni to withdraw it simply because the probate court initially transferred the case to Dallas County rather than Tarrant County.
In the "Consent to Transfer of Venue," the parties agreed that venue was proper in Tarrant County and that all or part of King's cause of action arose in Tarrant County. Accordingly, venue of the wrongful death and survival action was proper in Tarrant County, and under former section 5A of the Probate Code, which governs this case, the s
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