Case Information
*1 IN THE
TENTH COURT OF APPEALS
No. 10-13-00402-CV
IN RE MAE DEAN WHEELER INDIVIDUALLY AND AS SUCCESSOR TRUSTEE OF THE WHEELER FAMILY TRUST Originаl Proceeding
O P I N I O N
In this mandamus proceeding, we are asked to determine whether the respondent, Judge Robert Stem of the 82nd Judicial District Court, abused his discretion by failing to transfer venue to Harris County, Texas—the county where the underlying trust was administered. For the reasons stated herein, we conditionally grant relator’s petition for writ of mandamus.
I. B ACKGROUND
It is undisputed that real party in interest, Circle X Camp Cooley, Ltd. (“Circle X”), and relator, Mae Dean Wheeler, entered into a “Purchase and Sale Agreement,” *2 under which relator agreed to sell to Circle X certain property interests, including mineral interests, located in Robertson County, Texas. In June 2013, Circle X filed suit, seeking to enforce the “Purchase and Sale Agreement.” [1] In its petition, Circle X asserted that relator refused to cоmply with the terms of the parties’ agreement.
In response to the petition filed by Circle X, relator moved to transfer venue to Harris County, under section 115.002 of the Texas Property Code. See T EX . P . C ODE A NN . § 115.002 (West Supp. 2013). Relator argued that venue is mandatory in Harris County becаuse that is the county where the Wheeler Family Trust (“Trust”) was administered during the four years preceding the filing of the lawsuit and because that is the county of residence for relator as Trustee.
Circle X filed a response to relator’s motion to transfer venue, wherein Circle X asserted that venue is mandatory in Robertson County, pursuant to section 15.011 of the Texas Civil Practice and Remedies Code. IV RAC . & R EM . . § 15.011 (West 2002). Specifically, Circle X contended that venue is mandatory in Robertson County because that is where the “subject/bаsis of this suit is located and situated . . . .” Circle X also argued that: (1) the basis of its suit does not concern a trust; (2) its cause of action against relator “is for specific performance related to Defendant’s breach of the contract entered into between the parties”; and (3) its choice of venue should not be disturbed, even if venue is proper in more than one county.
*3 On October 28, 2013, the trial court conducted a hearing on the venue issue. At the conclusion of the hearing, the trial court signed an order denying relator’s motion to transfer venue. As a result, the case was ordered to remain in Robertson County.
Thereafter, on November 14, 2013, relator filed her petition for writ of mandamus in this Court, seeking review of the trial court’s order denying her motion to transfer venue. We stayed the proceedings in the trial court and requested a response from real party in interest, which was filed on December 11, 2013.
II. S TANDARD OF R EVIEW
Ordinarily, mandamus relief lies when the trial court has abused its discretion
and a party has no adequate appеllate remedy.
In re Prudential Ins. Co.
,
III. V ENUE
As noted above, relator contends that the triаl court erred by failing to transfer venue from Robertson County to Harris County. Relator maintains that venue is *4 mandatory in Harris County based on the mandatory-venue provisions found in section 115.002 of the Texas Property Code. . § 115.002.
A. Applicable Law
Section 115.002 of the Texas Property Code рrovides that when “there is a single, non[-]corporate trustee,” the venue of an action under section 115.001 of the Texas Property Code:
shall be brought in the county in which:
(1) the trustee resides or has resided at any time during the four-year period preceding the date the action is filed; or (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.
Id. § 115.002(b). Section 115.001 lists the following actions that fall within the ambit of section 115.002:
(a) Except as provided by Subsection (d) оf this section, a district court has original and exclusive jurisdiction over all proceedings by or against a trustee and all proceedings concerning trusts , including proceedings to: (1) construe a trust instrument;
(2) determine the law applicable to a trust instrument; (3) aрpoint or remove a trustee;
(4) determine the powers, responsibilities, duties, and liability of a trustee;
(5) ascertain beneficiaries;
(6) make determinations of fact affecting the administration, distribution, or duration of a trust;
(7) determine a question arising in the administration or distribution of a trust;
(8) relieve a trustеe from any or all of the duties, limitations, and restrictions otherwise existing under the terms of the trust instrument or of this subtitle;
(9) require an accounting by a trustee, review trustee fees, and settle interim or final accounts; and
(10) surcharge a trustee. (a-1) The list of proceedings described by Subsection (a) over which a district court has exclusive and original jurisdiction is not exhaustive. A district court has exclusive and original 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).
Id. § 115.001(a)-(a-1) (West Supp. 2013) (emphasis added).
Circle X asserts that sections 115.001 and 115.002 of the Texas Property Code do
not control venue in this case because the underlying dispute does not concern the trust
itself or directly relate to the сonstruction, administration, or interpretation of the trust.
Relying heavily on the Thirteenth Court of Appeals’ decision in
In re J.P. Morgan Chase
Bank, N.A.
,
B. Discussion
Essentially, in this proceeding, we must determinе whether section 15.011 of the
Texas Civil Practice and Remedies Code or section 115.002 of the Texas Property Code
*6
controls. Because section 115.002 of the Texas Property Code originates from outside of
chapter 15 of the Texas Civil Practices and Remedies Code, we look to section 15.016 of
the Texas Civil Practice and Remedies Code, which provides that “[a]n action governed
by any other statute prescribing mandatory venue shall be brought in the county
required by that statute.” T EX C IV . P RAC . & R EM . C ODE A NN . § 15.016 (West 2002);
see In
re J.P. Morgan Chase Bank, N.A.
,
Section 115.002 of the Texas Property Code is a mandatory-vеnue provision.
See
T EX . P . C A NN . § 115.002;
see also In re J.P. Morgan Chase Bank, N.A.
, 373 S.W.3d at
613. As such, section 15.016 of the Texas Civil Practice and Remedies Code requires that
the mandatory-venue provisions in section 115.002 of the Texas Property Code prevail
over section 15.011 of the Texas Civil Practice and Remedies Codе. . IV . RAC . & R EM ODE § 15.016;
see also In re Tex. Dep’t of Transp.
, 218 S.W.3d at 76
(concluding that, based on section 15.016, the mandatory-venue provision in section
101.102(a) of the Texas Tort Claims Act prevails over the mandatory-venue provision in
section 15.015 of the Texas Civil Practice and Remedies Code);
In re J.P. Morgan Chase
Bank, N.A.
,
In the instant case, there is no dispute that relator is a non-corporate trustee of the trust and that the trust was administered in Harris County in the four years preceding this suit. . § 115.002. Instead, Circle X argues that the action does not fall within section 115.001 because the suit must “concern a trust” for section 115.001 to apply. See, e.g., In re Stark , 126 S.W.3d 635, 642 (Tex. App.— Beaumont 2003, orig. proceeding) (applying former section 115.001 and concluding that tort claims against a trustee do not involve section 115.001). Therefore, Circle X asserts that, because the suit does not involve section 115.001, the venue provisions of section 115.002 are inapplicable.
However, we disagree with Circle X’s assertion. As noted by the Fourth Court of
Appeals, section 115.001 was amended in 2007, to provide that a district court has
original and exclusive jurisdiction over not only all proceedings concerning a trust, but
also “all proceedings by or against a trustee.” Act of May 24, 2005, 79th Leg., R.S., сh.
*8
148, 2005 Tex. Gen. Laws 296 (amended 2007) (current version at T EX P ROP . C A NN . §
115.001(a));
see In re J.P. Morgan Chase Bank, N.A.
, 373 S.W.3d at 613-14. The Texas
Supreme Court has stated that a “question of statutory construction is a legal one,”
which is reviewed “de novo, ‘ascertaining and giving effect to the Legislature’s intent as
expressed by the plain аnd common meaning of the statute’s words.’”
MCI Sales &
Serv. v. Hinton
,
Like the Fourth Court of Appeals, after applying the plain language of the statute to the instant case, we conclude that section 115.002 applies because this is a proceeding against a trustee, in accordance with section 115.001. See In re J.P. Morgan Chase Bank, N.A. , 373 S.W.3d at 614; see also T EX . P ROP . ODE A NN . §§ 115.001-.002. The plain language of section 115.001 provides that it applies to all proceedings by оr against a trustee. T ODE . § 115.001(a). As such, we do not believe that a distinction for Circle X’s claims against relator in this case is warranted.
That said, we recognize, but do not follow, the Thirteenth Court of Appeals’ 2011
decision in
In re J.P. Morgan Chase Bank, N.A.
,
Based on the foregoing, we conclude that the trial court abused its discretion in
this case by failing to transfer venue to Harris County. Under section 15.0642 of the
Texas Civil Practice and Remedies Code, a party may file a petition for writ of
mandamus to enforce a mandatory-venue provision.
See
T EX . C IV . P RAC . & R EM . C ODE
A NN . § 15.0642 (West 2002);
see also In re J.P. Morgan Chase Bank, N.A.
,
IV. ONCLUSION We conditionally grant relator’s petition for writ of mandamus and direct the trial court to transfer venue to Harris County within fourteen days from the date of this opinion. The writ will issue only if the trial court fails to comply.
AL SCOGGINS Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Conditionally Granted
Opinion delivered and filed January 30, 2014
[OT06]
Notes
[1] In its petition, Circle X sued: (1) Wheeler in both her individual capacity and her capacity as successor trustee of the Wheelеr Family Trust; and (2) any other entities owning all or a portion of the affected properties. Moreover, exhibit “A,” which is attached to Circle X’s original petition, describes the property interests and references the most-recent transfer of the рroperty interests to relator’s husband, F.W. Bert Wheeler, as trustee.
[2] We also note that all of the authority relied upon by the Thirteenth Court of Appeals either
predates the 2007 amendments of Texas Property Code section 115.001 or does not recognize the 2007
amendments at all.
See In re Guardianship of Gibbs
,