in Re Jp Morgan Chase Bank, N. A., in Its Corporate Capacity, and as Trustee of the Red Crest Trust U/T/A Dated May 9, 1985, and Phillip Mettham , 2011 Tex. App. LEXIS 9601 ( 2011 )

NUMBER 13-11-00707-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE J.P. MORGAN CHASE BANK, N.A., IN ITS CORPORATE
CAPACITY AND AS TRUSTEE OF THE RED CREST TRUST UNDER
TRUST AGREEMENT DATED MAY 9, 1985, AND PHILIP METTHAM
On Petition for Writ of Mandamus.
OPINION
Before Justices Rodriguez, Vela, and Perkes
Opinion by Justice Perkes1
Relators, J.P. Morgan Chase Bank, N.A., in its corporate capacity and as trustee
of the Red Crest Trust under Trust Agreement dated May 9, 1985, and Philip Mettham,
filed a petition for writ of mandamus on November 7, 2011, seeking relief from the trial
court‘s refusal to grant their motion to transfer venue. The Court requested and
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See TEX. R. APP. P. 52.8(d) (―When granting relief, the court must hand down an opinion as in
any other case,‖ but when ―denying relief, the court may hand down an opinion but is not required to do
so.‖); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
received a response to the petition from the real party in interest, Orca Assets, G.P.,
L.L.C. (―Orca‖). We deny the petition for writ of mandamus.
I. STANDARD OF REVIEW
Ordinarily, mandamus relief lies when the trial court has abused its discretion and
a party has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124,
135–36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40
(Tex. 1992) (orig. proceeding). A trial court abuses its discretion if it reaches a decision
that is so arbitrary and unreasonable as to amount to a clear and prejudicial error of law,
or if it clearly fails to correctly analyze or apply the law. See In re Cerberus Capital
Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). In determining
whether appeal is an adequate remedy, we consider whether the benefits of mandamus
review outweigh the detriments. In re BP Prods. N. Am., Inc., 244 S.W.3d 840, 845
(Tex. 2008) (orig. proceeding).
A party may file a petition for writ of mandamus to enforce the mandatory venue
provisions of chapter 15 of the Texas Civil Practice and Remedies Code. See TEX. CIV.
PRAC. & REM. CODE ANN. § 15.0642 (West 2002). Under section 15.016 of the Texas
Civil Practice and Remedies Code, an action governed by any other statute prescribing
mandatory venue must be brought in the county required by that statute. See id. §
15.016 (West 2002). Section 115.002 of the Texas Property Code is a mandatory
venue statute, so it is enforceable by mandamus. See TEX. PROP. CODE ANN. § 115.002
(West 2007); TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.016, 15.0642; In re Transcon.
Realty Investors, 271 S.W.3d 270, 271 (Tex. 2008) (orig. proceeding); In re Tex. Dep’t
of Transp., 218 S.W.3d 74, 76 (Tex. 2007) (orig. proceeding). In the case of mandatory
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venue, relators are not required to show that appeal is an inadequate remedy. In re
Transcon. Realty Investors, 271 S.W.3d at 271.
II. BACKGROUND
Orca paid relators more than $3 million to lease mineral interests in DeWitt
County, Texas. After entering the leases, relators attempted to rescind the leases
because the subject acreage had been previously leased to a third party. Orca brought
suit against relators in DeWitt County, alleging that DeWitt County was the county of
mandatory venue under section 15.011 of the Texas Civil Practice and Remedies Code:
This is primarily a lawsuit to quiet title to real property and/or to recover for
the fraudulent sale of, transfer of, and a constructive trust over, real estate
that was sold by [Red Crest Trust] to Plaintiff pursuant to fraudulent
representations made by Mettham for his personal benefit. These real
estate assets and mineral interests are located in DeWitt County, Texas.
. . . On January 7, 2011, [relators] sold and accepted payment for
these DeWitt County real estate assets. In return, [relators] tendered
leases on the DeWitt County real estate assets to Orca and represented
that Defendants had not leased these properties to any other person.
. . . Orca is the holder of the leases on which it seeks specific
performance from [relators] to deliver these assets as represented and
with no claim of a prior sale to any other person. Orca further seeks to
quiet title as to its ownership of this real property mineral estate. In the
alternative, Orca seeks a constructive trust over these assets and/or
damages.
See TEX. CIV. PRAC. & REM. CODE ANN. § 15.011 (West 2002) (generally providing that a
suit involving a land dispute must be filed in the county where all or part of the land is
located). Orca‘s causes of action against relators include trespass to try title, fraud,
fraud in a real estate transaction, negligent misrepresentation, tortious interference, civil
conspiracy, and a request for specific performance.
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Relators moved to transfer venue on grounds that section 115.002 of the Texas
Property Code, which prescribes venue in actions filed against trustees, mandates
transfer of the case to Tarrant County, Texas, because Tarrant County is the situs of
administration of the Red Crest Trust. See TEX. PROP. CODE ANN. §§ 115.001 (West
Supp. 2010), 115.002. Section 115.001 of the Texas Property Code, entitled
―Jurisdiction,‖ provides that district courts have ―original and exclusive jurisdiction over
all proceedings by or against a trustee and all proceedings concerning trusts.‖ TEX.
PROP. CODE ANN. § 115.001(a). The statute includes ten enumerated examples of such
proceedings and further states that the list of enumerated proceedings ―is not
exhaustive.‖ See id. § 115.001(a), (a–1). The venue of an action under section
115.001 is determined according to section 115.002, which requires suit in the county in
which the situs of administration of the trust has been maintained. See id. § 115.002(c).
In contrast, Orca asserts that venue is mandatory in DeWitt County because
Orca‘s claims are subject to the mandatory venue provision governing real property.
Section 15.011 of the Texas Civil Practice and Remedies Code applies to: (1) actions
for recovery of real property or for recovery of an estate or interest in real property; (2)
actions for partition of real property, (3) actions to remove encumbrances from the title
to real property; (4) actions for recovery of damages to real property; and (5) actions to
quiet title to real property. TEX. CIV. PRAC. & REM. CODE ANN. § 15.011. Any of these
specified types of actions must be brought in the county in which part or all of the
property is located. Id. According to Orca, the dominant purpose of its suit against
relators was to establish ownership of property or an interest in property as an ―indirect
means of quieting title to the mineral estate.‖ See, e.g., In re Applied Chem. Magnesias
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Corp., 206 S.W.3d 114, 119 (Tex. 2006) (orig. proceeding) (holding that section 15.011
applied because the plaintiff was using a declaratory judgment action ―as an indirect
means of quieting title to the mineral estate‖ in the land at issue); Yzaguirre v. KCS
Res., Inc., 53 S.W.3d 368, 371 (Tex. 2001) (holding that the precursor to section 15.011
applied where the ownership to property is in dispute).
III. ANALYSIS
Orca contends, and we agree, that the cited venue provisions of the Texas
Property Code are inapplicable to this dispute. Orca‘s causes of action against relators
for trespass to try title, fraud, fraud in a real estate transaction, negligent
misrepresentation, tortious interference, civil conspiracy, and specific performance are
not enumerated in section 115.001(a), and they do not fall within its scope. All of the
actions enumerated in section 115.001(a) involve actions relating to the trust itself or the
operation thereof, and none involves anything resembling a tort action. See In re
Guardianship of Gibbs, 253 S.W.3d 866, 872 (Tex. App.—Fort Worth 2008, pet. dism‘d)
(op. on reh‘g); In re Stark, 126 S.W.3d 635, 639 (Tex. App.—Beaumont 2004, orig.
proceeding). In fact, cases construing the scope of section 115.001 have held that the
mere fact that trust funds are implicated by a claim does not transform the claim into
one ―concerning‖ or ―involving‖ trusts. See, e.g., In re Guardianship of Gibbs, 253
S.W.3d at 872; Mobil Oil Corp. v. Shores, 128 S.W.3d 718, 724–25 (Tex. App.—Fort
Worth 2004, no pet.) (holding that the mere fact that the plaintiff was a trustee did not
transform the suit into one ―concerning trusts‖ under section 115.001(a)); In re Stark,
126 S.W.3d at 642 (holding that claims for fraud, conspiracy, and breach of fiduciary
duty were not claims ―concerning trusts‖ within the meaning of section 115.001(a) or
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claims ―involving trusts‖ within the meaning of former probate code section 5A(c)); see
also Retzlaff v. Deshay, No. 14-03-00833-CV, 2004 Tex. App. LEXIS 8581, 2004 WL
2163173, at *5 (Tex. App.—Houston [14th Dist.] Sept. 28, 2004, no pet.) (mem. op.)
(holding that a claim for breach of fiduciary duty against a trustee did not concern a trust
within the meaning of section 115.001(a)). Thus, the underlying lawsuit does not fall
within the scope of section 115.001, or by extension, the mandatory venue provision of
section 115.002.
Relators contend that the 2007 amendments to section 115.011 indicate a
legislative intent to clarify the expansive scope of this section and effectively overrule
case law construing the predecessor statute. In 2007, the Legislature added subsection
(a–1), which provides that the list of proceedings enumerated in the statute are not
―exhaustive‖ and that a district court has jurisdiction ―over a proceeding by or against a
trustee or a proceeding concerning a trust under Subsection (a) whether or not the
proceeding is listed in Subsection (a).‖ See Tex. Prop. Code Ann. § 15.011(a–1) (as
modified by Act of May 16, 2007, 80th Leg., R.S., ch. 451, § 11, 2007 TEX. GEN. LAWS
801, 804–05); see Carroll v. Carroll, 304 S.W.3d 366, 368 n.3 (Tex. 2010).
We do not agree with relators‘ contention as it relates to the claims in this
proceeding. While the amendment clearly overrules those cases which construed
former section 115.001 as providing an exclusive list of actions concerning trusts over
which a district court has jurisdiction, nothing in the amendment indicates the intent to
overrule those cases holding that section 115.001 does not encompass tort claims and
non-administrative matters against a trustee. See, e.g., Mobil Oil Corp., 128 S.W.3d at
725 (―Under appellees‘ theory, every lawsuit to which a trustee is a party would come
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within section 115.001[,] no matter what the subject matter. The mere fact that a
plaintiff happens to be a trustee, however, does not transform a case into one
‗concerning trusts.‘‖).
IV. CONCLUSION
The Court, having examined and fully considered the petition for writ of
mandamus and the response thereto under the applicable standard of review, is of the
opinion that relators have not shown themselves entitled to the relief sought.
Accordingly, the petition for writ of mandamus is DENIED. See TEX. R. APP. P. 52.8(a).
GREGORY T. PERKES
Justice
Delivered and filed the
5th day of December, 2011.
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