In rе 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.
No. 13-11-00707-CV
Court of Appeals of Texas, Corpus Christi-Edinburg.
Dec. 5, 2011.
Rehearing Overruled Feb. 3, 2012.
Conclusion
In its analysis of Branch‘s issue, the majority has committed two errors. First, the majority has essentially stated that anytime a defense attorney fails to object to the State‘s misstatements related to probation, the attorney commits professional malpractice and ceases functioning as counsel. See Harrington, 131 S.Ct. at 787. Compounding that error, the majority has neglected to view the evidence as a whole as required. See Perez, 310 S.W.3d at 894. I would affirm the jury‘s life sentence and overrule Branch‘s final issue on appeаl.
Michael A. Sheppard, Dist. Atty., Cuero, Don Jackson, C. Dennis Barrow, Ware, Jackson, Lee & Chambers, LLP, Jeffrey W. Chambers, Houston, for Real Party in Interest.
Before Justices RODRIGUEZ, VELA, and PERKES.
OPINION
Opinion by Justice PERKES.1
Relators, J.P. Morgan Chase Bank, N.A., in its corporate capacity and as trustee of the Red Crest Trust under Trust Agrеement 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 received a rеsponse 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 аdequate 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 prеjudicial 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 Remеdies Code. See
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
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 representatiоns 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 DеWitt 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 tо 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 аnd/or damages.
See
Relators moved to transfer venue on grounds that
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 relatоrs for trespass to try title, fraud, fraud in a real estate transaction, negligent misrepresentation, tortious interference, civil conspiracy, and specific performance are not enumеrated in
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 prоvides that the list of proceedings enumerated in the statute are not “exhaustive” and that a district court has jurisdiction “over a proceeding by or
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 within section 115.001[,] no matter what the subject matter. The mere fact that a plaintiff happens to be a trustee, howevеr, 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
Steven F. HOTZE, M.D., Appellant, v. Keith E. MILLER, M.D., Appellee.
No. 12-10-00413-CV
Court of Appeals of Texas, Tyler.
Jan. 11, 2012.
Rehearing Overruled March 19, 2012.