*1 CORPORATION; MOBIL OIL Mobil
Producing Mexico, Inc.; Texas New Pipeline, Inc.;
Mobil Cortez
Pipeline Company; Pipe Shell Cortez Company;
line Company, Shell CO2
Ltd.; Company; Oil Shell Shell West- P, Inc.; LP,
ern E & and SWEPI
Appellants,
Gary SHORES, Barfield, H. John W. Gibson,
and Frank Represen- In Their Capacities
tative As Co-Trustees of Trust;
the Alicia L. Bowdle William Kemp Bench,
G. and Marie J. In Their
Representative Capacities As Co-
Trustees of the Bernard M. Bench
Family Trust; Lynn Whiteis, Bonnie
Individually; Armor, Jr., William C.
Individually; and the Class All
Overriding Royalty Interest Owners August 24,
from 1982 to Date Under Any Oil, Gas,
Leases to Defendants in Property
or Mineral that Became
Unitized Virtue the McElmo Agreement,
Dome Appellees. Unit
No. 2-00-430-CV. Texas,
Court of Appeals
Fort Worth.
Jan. *2 Feld, L.L.P., &
Gump Strauss Hauer Austin, Ratliff, for Appellant H. Shannon Mobil P.C., Berry, & Richard D.
Hayes, Coffey Denton, & Hayes, Morrison Heckler L.L.P., and J. Salzman Kent Sul- Matthew MO, livan, Appellant for Cor- City, Kansas tez.
Wood, P.C., Weatherly, R. & Thacker Weatherly, Den- Wood and Grace William L.L.P., ton, Elkins, Andrew Vinson & Jr., III, Dye, Phillip B. Gwen J. McCollam Samora, Smith, B. Catherine Sinead O’Carroll, Davidow, Houston, H. Jennifer Appellant for Shell. P.C., Campbell,
Rader Donovan Rader, Jr., E. Campbell and Robert Jr. Firm, Hartnett, J. Hartnett Law James Hartnett, Smith, McKool Jr. and Will F. Gary Cruciani, Cunningham, Rob- Charles Dallas, Perry, Maley, ert M. B. for Robert Appellees. WALKER, CAYCE, C.J.;
PANEL A: DAY, (Retired, J.; Sitting and SAM J. J. by Assignment).
OPINION ON REHEARING CAYCE, Chief Justice. JOHN
INTRODUCTION This appeals case involves from the court’s order statutory Reib, jurisdic- Griffin, Whitten, denying pleas to the appellants’ Jones & Mobil Corporation, Balagia, and Jack Jr. and tion and motions transfer venue. On Houston, motion, Taylor McGinnis, Snelling, opinion our own withdraw our Lo- we L.L.P., Engel, April follow- chridge Kilgore, Brian S. substitute Knisely, Kelley, ing.1 rehearing filed O. Richard Akin motion Marc orig. judgment April proceeding); Apr. Worth In We also withdraw our No. appeal. re Shell 02-01- appellants 2001 in this Two filed mandamus, (Tex.App.-Fort Apr. separate petitions 00075-CV Worth for writ of orig. proceeding). Neither relator with which we consolidated judgments in the April Oil moved to reconsider our denied on re Mobil therefore, long- original proceedings; (Tex.App.-Fort Corp., 02-01-00072-CV No. lants”).2 Pipeline Company, Shell Cortez Shell Appellees are overriding royalty C02 Ltd., Company, Company, Shell Oil Shell interest of a owners unitized carbon diox- Ine., (the Western E & P LP Unit, SWEPI pool, ide the McElmo Dome in Colo- *3 appellants”) “Shell and the motion for re- rado and claim appellants that since 1982 hearing for and en banc rehearing by filed have under-paid royalties for carbon diox- appellees are denied as moot. produced We will ide from pool. appeals part dismiss the for want of The Bowdle Trust is a Texas inter vivos
jurisdiction and vacate probate trust principal with place its business in part order for want of and situs of administration in Denton jurisdiction. County, Texas. The Family Bench Trust ais Colorado inter vivos and charitable AND FACTUAL PROCEDURAL trust with principal its office located in BACKGROUND County, Denver Colorado. is a Whiteis underlying The litigation is a suit to Texas citizen who resides Coun- Wichita under-paid recover royal- carbon dioxide ty, Texas. Armor is a citizen Florida appellees Shores, ties. The Gary are: County, who resides in Martin Florida. Barfield, Gibson, John and Frank in their County Denton not the location of any representative capacities as co-trustees of appellant’s principal Texas office. the Alicia L. (collectively Bowdle Trust Appellants pleas probate filed to the Trust”); “Bowdle Kemp William G. to and motions transfer Bench, Marie J. representative their asserting, County among venue to Harris capacities as co-trustees of the Bernard M. complaints, Family other that the Bench Bench Family Trust (collectively the Trust, Whiteis, improper- and Armor were Trust”); Family “Bench Lynn Bonnie joined ly in the lawsuit under former sec- Whiteis; Armor, (here- and William C. Jr. tion 15.003 of the Texas Civil Practice and inafter also collectively referred to as “ap- Remedies Code. pellees”). Appellees brought suit in the probate court of County, Denton Texas After a hearing, probate court against appellants Mobil Corporation, Oil signed a denying November 2000 order Mobil Producing Mexico, New appellants’ pleas to the Inc., (the and Mobil Pipeline, Cortez Inc. their to The motions transfer venue. appellants”), “Mobil the Shell appellants, court specify did not the basis rul- its (hereinafter Company ing. Appellants perfected their inter- then also referred to collectively “appel- as locutory appeals to this court.3 addition, er judg- Timothy appellees. reconsider our ber Richard denying petitions ments relators' for writ of Bradley were and Deborah Sue Hartsfield mandamus. suit, underlying named as defendants in the they appeal. but did file Conse- not notices Appellees also include "the class of all over- quently, appeal. they parties are to this not riding royalty interest August owners from TexR.App. 25.1(c). See P. date under leases to defendants in oil, gas, or property mineral that became 8, 1995, 3. See ofAct unitized virtue of McElmo Dome Unit 978, 979, 1995 Tex. Gen. Laws have, however, Agreement.” We vacated the amended Act of June trial court’s class certification order and dis- 2003 Tex. Gen. Laws missed the class certification case. Shell Cor- Shores, (current Pipeline Co. version at Tex. Civ. Prac. tez S.W.3d 286 15.003(c) (Vernon (Tex.App.-Fort pet.). Supp. Worth There- Rem.Code Ann. fore, 2004)). is moot as to the mem- class un- appellants’ pleas ON APPEAL
ISSUES 51.014(a)(8). der section Appellants assert court erred by denying their motions transfer is, however, Interlocutory appeal venue of the claims Bench 15.003(c) available under former Trust, Whiteis, they and Armor because from a civil and remedies code practice independently proper did not establish disallowing joinder ruling allowing or County and venue in Denton their independently plaintiff who unable improper. the Bowdle Trust was appealable venue.7 To be under establish appellants also that the Mobil contend *4 15.003(c), ruling former the venue section denying order the motions transfer ven- an interven “necessarily must determine” ue probate is no void because the court has joinder tion or this issue under section.8 subject over necessarily If the trial deter court’s order Trust, Whiteis, of Family the Bench issue, joinder mines an or we intervention cross-point, In a appellees Armor. con- conduct an de novo review of independent tend interlocutory appeals that the should the record the correctness of to ascertain be of dismissed for mootness and lack If, however, joined ruling.9 plaintiff that a or, jurisdiction, alternatively, abated legally cognizable has a properly asserted the probate remanded to court for case theory county venue supporting clarification. independently plaintiff, other suit trial denial of a mo review the APPELLATE COURT JURISDICTION concerning tion to that transfer venue reaching appellants’ complaints, Before plaintiff appeal wait until direct fol must we appellees’ must first address contention lowing judgment.10 a final appellate jurisdiction that this court lacks interlocutory over appellants’ appeals. us, on the record before we Based Generally, party Family a the Bench may appeal conclude that neither Trust, Whiteis, only judgment.4 pleaded any a or nor Armor final order An inter independently from a would es locutory appeal nonfinal order or venue facts that judgment only County in Denton permitted is author tablish venue proper when cognizable theory. ized venue by statute.5 Because under legally they “person[s] are denying plea Consequently, from order to the who proper is to establish venue” only [are] available statute unable 15.003(a) governmental agencies,6 agree ap- under and cannot with former section pellees’ juris joined contention that intervene be unless we have satisfy they each the four independently diction to review the court’s denial Clark, 96; Surgitek, Anglin Tipps, 8. B. Co. v. 842 S.W.2d S.W.3d at Bristol- Jack 38 1992). (Tex. Abel, 272 Myers Corp. v. 601 (Tex.1999). Ross, v. Water Co. 698 S.W.2d Cherokee (Tex.1985) (orig.proceeding). 9. Former & Civ. Prac. Rem.Code Ann. Tex. 15.003(c)(1); Squibb Bristol-Myers § v. Co. 51.014(a)(8) 6. Tex. Civ. Prac. & Rem.Code Ann. Goldston, (Tex.App.-Fort 983 S.W.2d Supp.2004); see Shell Cortez agr.). pet. Worth dism’d S.W.3d 286. 7. See Tex. Civ. Prac. Rem.Code Ann. former 15.064(a) 10. Tex. Crv. Prac. Rem.Code Clark, Corp. Prods. 15.003(c); Am. Home Clark, (Vernon 2002); at 96. (Tex.2000). joinder factors contained former Supreme The Texas Court and nu- 15.003(a).11 Furthermore, because the appeals merous courts of have ... re- probate court appellants’ denied peatedly motions recognized ap- when an to transfer as parties, venue to these pellate court granted jurisdiction probate court “necessarily determined” review an interlocutory order or judg- parties these did each independently ment, jurisdiction encompasses satisfy the or joinder intervention require- review of the validity the interlocu- 15.003(a). ments former section á tory As judgment.... order or In other result, we words, under former trial authority ju- 15.003(c) appellants’ over interlocu- risdiction appealable to enter the inter- tory appeals of the probate locutory court’s deter- judgment order or mination of the intervention or appellate is- along review with the merits relating Trust, sues to the Bench ruling “[sjimply put, because if Whiteis, and Armor. act, authority court has no it can hardly be said that the court’s action is *5 appellants Mobil contend that the valid.” order determining join- the intervention or Moreover, subject der a trial court’s mat- relating issues to the Bench Family Trust, Whiteis, jurisdiction ter presumed and is never and Armor should be va- jurisdiction cannot be waived. Our cated and over dismissed because the probate the subject appeal court merits of an extends fur- jurisdiction lacks no matter over ther than joined the that of the court from parties’ claims. which Appellees con- Thus, the tend taken. if the trial authority that we have no to review jurisdiction, only the court probate subject lacked we jurisdic- matter jurisdiction judg- tion the trial court’s in an set appeal brought 15.003(c).12 ment aside and cause.13 under dismiss the former section We dis- agree. Based on the binding precedent of our
In
Co.,
Pipeline
Shell Cortez
an interloc-
in
Pipeline
decision
Shell Cortez
Co. and
utory appeal from the probate court’s or-
the
of
longstanding Supreme Court
certifying
der
a class action in the
case,
same
on
decisions which we relied
case,
recently
we
observed:
clearly
we
have the
and au-
4, 1995,
11. Act of
decision.”
at
38 S.W.3d
96. The court in
1,
138,
978,
979,
1995 Tex. Gen. Laws
question presented
Clark did not
the
address
by
amended Act
of June
here:
whether
can review the trial court's
204,
3.03,
2003 Tex. Gen. Laws
subject
matter
an
determine
847,
(current
version at Tex. Civ. Peac. &
joinder
intervention
issue
an interlocu-
15.003(a) (Vernon
Supp.
Rem.Code
tory appeal brought under former section
2004)).
15.003(c).
According
appellees,
Clark limits our
13.Shell
127 S.W.3d at
review to
issues raised under former
(citations omitted);
see State v. Cook
Clark,
supreme
section 15.003. In
the
court
United, Inc.,
(Tex.1971);
464 S.W.2d
held that when the trial court's order does not
Tex. State Bd.
Optometry
v.
necessarily
Examiners
join-
determine an intervention or
of
Carp,
(1961);
15.003(a),
A statutory probate otherwise the terms of existing under over involving actions trusts is concurrent subtitle; or of trust instrument this Thus, with that of a district court.20 (9) require accounting by a trus- district court’s over actions in- fees, tee, and review trustee settle inter- volving trusts determines extent of a accounts; im or final statutory probate over (10) surcharge a trustee.21 such actions. 115.001(a) considering Texas section courts The trust actions which over a district predecessor, Trust Act arti- its court has are enumerated in 7425b-24(A),22 consistently cle held 115.001(a) Code, the Texas Trust those statutes the exclusive provide as follows: list of trusts” “concerning actions over (1) instrument; construe a trust jurisdiction.23 which a district court has (2) determine the applicable law to a No alleged by appellees cause of action instrument; trust specifically this case is enumerated (3) trustee; appoint or remove 115.001(a). Nevertheless, appel- (4) powers, responsibil- determine argue proceeding lees “con- ities, duties, liability trustee; of a Trust Code cerning trusts” under Texas *7 (5) beneficiaries; 115.001(a)(6) (a)(7), ascertain section because 5A(b); 19. Former Tex. Prob.Code pretations apply Ann. see In to Act also of the Trust SWEPI, L.P., 800, (Tex. re 85 S.W.3d 805 the trust code. 2002) (orig.proceeding). See, Hines, e.g., 23. v. 498 S.W.2d McCormick 5(d), §§ 20. Former Tex. Prob.Code Ann. 58, 1973, (Tex.Civ.App.-Amarillo 62 writ 5A(c)(2)-(3). dism’d) 7425b-24(A) (construing article (Vernon 115.001(a) holding specific 21. Tex. that action breach and Prop.Code. for Ann. Supp.2004). part The Texas performance Trust Code is a contract is not a matter Property §§ the Texas Code. Id. trusts); 111.001- concerning Mayflower v. Trust Co. Supp.2004). 117.012 &1995 Nowell, 783, (Tex.Civ.App.- 413 786 S.W.2d dism’d) 1967, (holding Houston writ that arti- Legislature adopted 22. The Texas the Texas cle 7425b-24 not cover a trust does part Trust Code in as of its nonsubstan- against alleging beneficiaries the trustee con- codifying tive relating revisions statutes to fraud, assets, torts); version of trust and other 26, 1983, property. Act Found., Hosp. v. & Clinic Smith Plainview 576, 1983 Tex. Gen. Laws 3475. 1965, (Tex.Civ.App.-Amarillo The trust code codified the former Texas Trust dism'd) (holding writ that article 7425b-24 originally Act April enacted in 1943. Act exclusively juris- enumerates a district court's 1943 Tex. trusts); concerning diction O.P. Leonard Trust code, adopting Gen. Laws 232. the trust Hare, (Tex.Civ.App.- 305 S.W.2d legislature provided that trust code dism’d) (same). Texarkana writ and the Texas Act Trust should be considered Accordingly, as one continuous statute. inter- any or that reduces legislature enacted under the power have the the trustees areWe surplusage.27 mere provision into mineral to to enter Texas Trust Code legisla- or undo the unwilling ignore a to against to contest claims of leases and essence, concerning that limiting contend matters appellees trust.24 In care ture’s powers, em- purposes by the trustees these jurisdictional because for trusts they party are a raises every suit to all-encompassing which construction bracing the administration, “affecting the questions urge here.28 appellees distribution, of a trust” and or duration above, hold stated For the reasons “arising the administration questions Whiteis’s, Trust’s, Family the Bench of a trust.”25 believe distribution We relating damages and Armor’s too much. argument proves at in this royalty payments issue every theory, lawsuit appellees’ Under statutory probate not within the case are party a trustee would come to which is statutory jurisdiction. limited no 115.001 matter what within section deny- Therefore, probate court’s order fact that a subject matter. The mere venue motions to transfer ing appellants’ trustee, however, happens be plaintiff appellees as to these void. “con- a case into one does not transform cerning trusts.”26 CONCLUSION
Moreover, construing section statutory Having determined that 115.001(a)(6)-(7) appellees suggest as juris- no probate court has remaining carefully draft would vitiate the Trust’s, Bench 115.001(a). diction over the It provisions ed Whiteis’s, claims, we vacate and Armor’s may court an axiom of Texas law denying appel- court’s order manner that not construe a statute of those transfer venue lees’ motions to give provisions fails effect all the Fowler, (Tex. §§ 27. Jones v. 24. Tex. 113.019 Prop.Code (Vernon 1995). 1998) (holding must construe court purpose giving effect and whole statute 115.001(a)(6), (7). §Id. every part). Arnold, Bank, Compare v. Austin Nat’l legislature's 1987 enactment 28. The (Tex.Civ.App.-FortWorth 5A(b) con- probate code reinforces the writ) (holding that a co-trustee’s suit *8 the legislature did extend power the not a had clusion that for declaration whether it the agreement liquidate appellees’ a suit jurisdiction under a trust to trust to the trial court’s By it held interests is money damages. asset in which also lien parties against for third 7425b) Cogdell by v. encompassed enactment, article legislature granted statu- the this 304, Bank, 537 306- Fort Worth Nat’l S.W.2d by jurisdiction "actions tory probate courts in 1976, (Tex.Civ.App.-Fort writ 07 Worth personal representative,” in against but a or dism'd) seeking (holding suit that a trustee's only ju- concurrent next clause conferred the the trustee had the to determine whether with courts actions risdiction the district capacity power that is encom- to continue in is, "involving trust[s]” ... inter vivos —that 7425b) Mayflower Trust passed article with in trust code sec- proceedings enumerated (holding at that article 413 S.W.2d 786 26, 1987, 115.001(a). Act of tion not a suit trust bene- 7425b-24 does cover 459, 1, § Laws 1987 Tex. Gen. ch. torts) alleging the trustee committed ficiaries 2043, legislature not did confer The Smith, (holding a S.W.2d at 427 393 "by against trus- jurisdiction in actions or hospital's against recover fees trustees to tees.” beneficiary trust to trust from for services trusts). concerning is not a matter funds 726 added); (emphasis
claims dismiss those causes.29 Id. We also Tex.R. see Civ. jurisdiction 87(6) “[tjhere for appeals dismiss want (providing P. shall be no from the court’s denying order interlocutory such appeals from [a venue] appellants’ pleas jurisdiction. to determination”).
WALKER,
opinion.
J. filed a dissenting
jurisdiction
An appellate court has
appeals
interlocutory
hear
from
orders and
WALKER, Justice, dissenting.
SUE
judgments
when
only
specifically author-
I respectfully dissent. This court does
Qwest
ized by statute.
Communications
jurisdiction
not possess
to review the trial
334,
Corp. v. AT T
24 S.W.3d
Corp.,
336
subject
matter
in a
(Tex.2000);
Star-Telegram
Fort
v.
Worth
joinder appeal brought under former civil Street,
704,
61
(Tex.App.-
S.W.3d
practice and remedies code section 15.003.
denied).
2001,
A
pet.
Fort Worth
statute
18, 1995,
See Act of May
Leg., R.S.,
such as civil
and remedies
practice
code
138, 1,
978,
§
Tex.
1995
Gen. Laws
15.003(c)(1) authorizing
interlocu-
amended,
by Act of June
78th tory
strictly
appeals is
construed because
2003 Tex. Gen.
it, is an
rule
exception
general
(current
Laws
version at Tex. Civ. only a final judgment
appealable.
Tex.
15.003
PRAC. Rem.Code Ann.
Valley,
Dep’t of Transp. City
v.
Sunset
Supp.2004)).1 The legislature has narrow-
(Tex.App.-Austin
ly
appellate jurisdiction
join-
defined our
pet.).
Strictly
construing
appeals.
der
Id. In
joinder
appeal, we 15.003(c)(1),
provision authorizing
“shall ...
joinder
determine whether the
here,
pro
interlocutory joinder appeal
proper
intervention is
based
an
on
inde-
vision
grants us
to decide
pendent determination from the record
joinder
single issue:
or inter
“whether the
and not under either an abuse of discretion
vention is
proper
independent
based on
or substantial evidence standard.” Id. The determination from
record.” Former
Supreme
Texas
explained
Court has
that Tex. Civ. Prac. & Rem.Code Ann.
interlocutory
this statute allows an
appeal
Clark,
at
15.003(c)(1);
see
38 S.W.3d
specific purpose:
one
to contest the
in the
citing
opinion
our
majority,
trial
allowing
court’s decision
denying
v.
class
Shell
Co.
Shores
joinder.
Pipeline
intervention or
Am.
Prods.
Home
(Tex.
Clark,
possess
certification
that we
Corp.
appeal,
holds
2000).
fact,
interlocutory
Supreme
Court
has
review the trial court’s
language
Legislature
held: “The
clearly
used
indicates
over the
assert-
its intent
limit
pleadings. Maj. Op.
ed in
at
appellate
plaintiffs’
review
trial
live
plain-
(citing
decision whether certain
Co. v.
Shell Cortez
may
Shores,
intervene or
join
(Tex.App.-
the suit.”
*9
tiffs
disposition
29.
applicable
Because of our
of
1.
the Bench
The 2003
not
to
amendments are
case;
Trust's, Whiteis’s,
they apply only
filed
this
to actions
on
and Armor’s claims
September
or
See Act of June
after
subject
jurisdiction grounds
on
matter
in this
23.02(d),
§
case,
light
disposition
and in
of
of the
our
Consequent-
2003 Tex. Gen. Laws
grounds
action
on
class
the same
in
ly,
of
all citations herein to section 15.003
the
Co.,
Pipeline
Shell
Unlike the sections trary plain language to the granted us 15.003(c)(1) 51.014(a)(8). however, to, 51.014, id. legislature chose See 15.003(c)(1), 51.014(a)(8). did, juris- I fear that appellate §§ limit our expressly majority’s ruling will be the effect of the joinder appeals diction determina- presented it joinder quagmire the exact has tion of the issue of whether inter- bogging down accelerated proper based on an inde- case: intervention locutory appeals to consider the joinder pendent determination from the record. vio- issue of Tex. Civ. Prao. Rem.Code Clark, express wishes 15.003(c)(1); legislature’s at 96. In lation be 15.003(c)(1), single proper issue in section that the unlike days of within 120 expeditiously us decided legislature grant did not *10 majority joinder appeal, the none- party requested has on rehear- diction in Although disposes of this original holding its own motion ing theless on that we reconsider our juris- on this basis. not would review the perfection of appeal. See id. 15.003(c)(2). reasons,
For these I dissent. COUNTY,
BRAZORIA
Texas, Appellant,
TEXAS COMMISSION ON ENVIRON- QUALITY,
MENTAL Texas f/k/a
Natural Resource Conservation Com-
mission; Transportation Com-
mission; Department and Texas
Transportation, Appellees.
No. 03-03-00121-CV. Texas,
Court of Appeals of
Austin.
Feb.