                             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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