IN RE: John Henry GREEN, Jr., Indiv. and as Trustee of the Testamentary Trust Formed for the benefit of William Casey Ellison and Gayla Jan Tibbitts; as Former Controlling Stockholder of National Foundry & Manufacturing Company and as principal shareholder and President of Patriot Steel Fabrication, Inc.
No. 08-16-00233-CV
Court of Appeals of Texas, El Paso.
December 2, 2016
527 S.W.3d 277
YVONNE T. RODRIGUEZ, Justice
Martin B. Muncy, Andrews, TX, Respondent. Richard E. Booth, Lynch, Chappell & Alsup, A Professional Corporation, Midland, TX, for Relator. Lane A. Haygood, Haygood Law Firm, Odessa, TX, for Real Party In Interest. Before McClure, C.J., Rodriguez, and Hughes, JJ.
OPINION
YVONNE T. RODRIGUEZ, Justice
John Henry Green, Jr. has filed a petition for writ of mandamus against the Honorable Martin Muncy, Judge of the 109th District Court of Crane County, Texas, asking thе Court to order Respondent to vacate an order denying Relator‘s motion to transfer venue to Ector County, Texas. We conditionally grant mandamus relief.
John Henry Green, Sr., Edelmira M. Green, and John Hеnry Green, Jr. formed National Foundry & Manufacturing Company, a manufacturing business, in Crane County, Texas on July 8, 1975. The business was successful and its stock consisted of 33,000 shares authorized, delivered, and divided equally between Jоhn Henry Green, Sr. (11,000 shares), his wife Edelmira M. Green (11,000 shares), and son John Henry Green, Jr. (11,000 shares). John Henry Green, Sr. died on January 26, 2005, and his will bequeathed his 11,000 shares of stock in National Foundry as follows: 1,000 shares to his son, John Henry Green, Jr.; 5,000 shаres to his grandson, William Casey Ellison; and 5,000 shares to his granddaughter, Gayla Jan Tibbitts.1 The shares of stock conveyed to Ellison and Tibbitts were placed in a ten (10) year trust to be administered by John Henry Green, Jr. as the trusteе. On February 29, 2016, the Real Parties in Interest, William Casey Ellison, Gayla Jan Tibbitts, and Edelmira M. Green, filed suit against Green in the 109th District Court of Crane County, Texas, alleging claims for breach of fiduciary duty, fraud, conspiracy, mismanagement and misappropriation of corporate funds, and usurpation and appropriation of corporate opportunities.2 The suit was filed against Green individually and as trustee оf the testamentary trust formed for the benefit of Ellison and Tibbits, and in his capacity as former controlling stockholder of National Foundry, and as principal shareholder and president of Patriot Steel Fabrication.
Green answered and filed a motion to transfer venue based on the mandatory venue provision found in
The Real Parties in Interest toоk the position in the trial court that venue was proper in Crane County because the situs of the administration of the trust is in Crane County. In support of their argument that the situs of administration was in Crane County, the Reаl Parties in Interest pointed to documentary evidence establishing that the will establishing the trust was probated in Crane County, and the business, National Foundry, is located in Crane County. Tibbitts provided an affidavit stating that: (1) National Foundry was formed in 1975 in Crane County where it has operated continuously; (2) National Foundry‘s principal place of business and mailing address is 299 Foundry Road, P.O. Box 1146, Crane, Texas, 79731;
MANDAMUS STANDARD OF REVIEW
To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court committed а clear abuse of discretion for which the relator has no adequate remedy at law. In re Frank Kent Motor Company, 361 S.W.3d 628, 630 (Tex. 2012); In re Prudential Insurance Company of America, 148 S.W.3d 124, 135-36 (Tex. 2004). A trial court abuses its discretion when it acts arbitrarily, capriciously, and without reference to guiding princiрles. In re Mid-Century Insurance Company of Texas, 426 S.W.3d 169, 178 (Tex.App.—Houston [1st Dist.] 2012, orig. proceeding). A trial court has no discretion in determining what the law is or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Consequently, an abuse of discretion occurs if a trial court clearly fails to correctly analyze or apply the law. In re Olshan Foundation Repair Co., LLC, 328 S.W.3d 883, 888 (Tex. 2010).
Under
MANDATORY VENUE—SECTION 115.002(B)
In Issue One, Green contends that the trial court clearly abused its discretion by denying his motion to transfer venue. Under
Green relies on
(b) If there is a single, noncorporate trustee, an action shall be brought in the county in which:
. . .
(2) the situs of administration of the trust is maintained or has been maintained at any time during the four-year
period preceding the date the action is filed.
The Property Code defines “situs of administration” as meaning the location where the trustee maintains the office that is primarily responsible for dealing with the settlor and beneficiaries of the trust.
AWARD OF ATTORNEY‘S FEES
In Issue Two, Green challenges the trial court‘s award of attorney‘s fees of $2,500 to the Real Parties in Interest. The trial court‘s order does not reflect the basis for the award of attorney‘s fees, but the Real Parties in Intеrest, in their response to Green‘s motion to transfer venue, specifically sought attorney‘s fees as a sanction under
The signing of a pleading or motion as required by the Texas Rules of Civil Procedure constitutes a certificate by the signatory that to the signatory‘s best knowledge, information, and belief, formed after reasonable inquiry:
(1) the pleading or motion is not being presented for any improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) each claim, defense, or other legal contention in the pleading or motion is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the estаblishment of new law;
(3) each allegation or other factual contention in the pleading or motion has evidentiary support or, for a specifically identified allegation or factual сontention, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) each denial in the pleading or motion of a factual cоntention is warranted on the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.
Having sustained both issues, we conditionally grant mandamus relief. The trial court is directed to withdraw the order denying the motion to transfer venue and awarding attorney‘s fees to the Real Parties in Interest, and it is further directed to enter an order granting Green‘s motion and transferring venue of the case to Ector County. The writ will issue only in the event the trial court fails to comply within a reasonable period of time.