### IN THE TENTH COURT OF APPEALS

No. 10 - 13 - 00402 - CV IN RE MAE DEAN WHEEL ER INDIVI DUALLY AND AS SUCCES SOR TRUSTEE OF THE WHEELER FAMIL Y TRUST
Original 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 admin istered. 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 “Purch ase and Sale Agreement,”In re Wheeler Page 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 comply 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 ROP
. C ODE A NN
. § 115.002 (West Supp. 2013). Relator argued that venue is mandatory in Harris County because 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 Prac tice and Remedies Code. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 15.011 (West 2002). Specifically, Circle X contended that venue is mandatory in Robertson County because that is where the “subject/basis 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 shou ld not be disturbed, even if venue is proper in more than one county.

1 In its petition, Circle X sued: (1) Wheeler in both her individual capacity and her capacity as successor trustee of the Wheeler 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 or iginal petition, describes the property interests and references the most

- recent transfer of the property interests to relator’s husband, F.W. Bert Wheeler, as trustee.In re Wheeler Page 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 venu e. 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 ade quate 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 arb itrary and unreasonable as to amount to a clear and prejudicial error or 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 an 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).
III. V ENUE As noted above, relator contends that the trial court e rred by failing to transfer venue from Robertson County to Harris County. Relator maintains that venue isIn re Wheeler Page 4

mandatory in Harris County based on the mandatory

- venue provisions found in section 115.002 of the Texas Property Code. See T EX
. P ROP
. C ODE A NN
. § 1 15.002. A. Applicable Law Section 115.002 of the Texas Property Code provides 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) of this section, a district court has original and exclusive jurisdiction over all proceedi ngs 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) appoint 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;In re Wheeler Page 5 (7) determine a question arising in the administration or distribution of a trust; (8) relieve a trustee from a ny 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) s urcharge 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 proc eeding 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 construction, administration, or interpretation of th e trust. Relying heavily on the Thirteenth Court of Appeals’ decision in In re J.P. Morgan Chase Bank, N.A. , 361 S.W.3d 703 (Tex. App.

— Corpus Christi 2011, orig. proceeding), Circle X argues that section 115.001 and 115.002 of the Texas Property Code do n ot apply to an action for breach of contract or specific performance. Instead, Circle X contends that the provisions of section 15.011 of the Texas Civil Practice and Remedies Code control venue in this case.
B. Discussion Essentially, in this proceeding, w e must determine whether section 15.011 of the Texas Civil Practice and Remedies Code or section 115.002 of the Texas Property CodeIn re Wheeler Page 6

controls. Because section 115.002 of the Texas Property Code originates from outside of chapter 15 of the Texas Civil Pract ices 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. , 373 S.W.3d 610, 613 (Tex. App.

— San Antonio 2012, orig. proceeding). “[I]f an action is governed by a separate mandatory venue provision, then the action shall be brought in the county required by the separate venue provision.” In re Tex. Dep’t of Transp. , 218 S.W.3d 74, 76 (Tex. 2007) (orig. proceeding). Section 115.002 of the Texas Property Code is a mandatory

- venue provision. See
T EX
. P ROP
. C ODE A NN
. § 115.002; see a lso 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 Code. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 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. , 373 S.W.3d at 613 (concluding that, based on section 15.016, the mandatory

venue provision in secti on 115.002 of the Texas Property Code prevails over the mandatory

- venue provision of section 15.011 of the Texas Civil Practice and Remedies Code); In re Adan Volpe Props. , 306 S.W.3d 369, 375 (Tex. App.

— Corpus Christi 2010,In re Wheeler Page 7

orig. proceeding) (concluding t hat, based on section 15.016, the mandatory

- venue provision in section 65.023 of the Texas Civil Practice and Remedies Code prevails over the mandatory

- venue provision in section 15.017 of the Texas Civil Practice and Remedies Code); In re Dole Food Co. , 2 56 S.W.3d 851, 856 (Tex. App.

— Beaumont 2008, orig. proceeding) (same). Therefore, based on the foregoing case law, we conclude that section 115.002 of the Texas Property Code prevails over section 15.011 of the Texas Civil Practice and Remedies Code; acco rdingly, we must now determine whether venue is proper in Harris County based on the provisions of sections 115.001 and 115.002 of the Texas Property Code. In the instant case, there is no dispute that relator is a non

- corporate trustee of the trust and th at the trust was administered in Harris County in the four years preceding this suit. See T EX
. P ROP
. C ODE A NN
. § 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) (apply ing 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. Ho wever, 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., ch.In re Wheeler Page 8

148, 2005 Tex. Gen. Laws 296 (amended 2007) (current version at T EX P ROP
. C ODE A NN
. § 115.001(a)); see In re J.P. Morgan Chase Bank, N.A. , 373 S.W.3d at 613

- 14. The Tex as 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 and common meaning of the statute’s words.’” MCI Sale s & Serv. v. Hinton , 329 S.W.3d 475, 500 (Tex. 2010) (quoting F.F.P. Operating Partners, L.P. v. Duenez , 237 S.W.3d 680, 683 (Tex. 2007)). “We first look at the statute’s language to determine that intent, as we consider it a fair assumption that the Legi slature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent.” Id. (internal citations omitted). “Thus, we consider the statute’s plain and common meaning, and do not look to extraneous matters f or an intent the statute does not state.” Id. (internal citation omitted). 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 agains t 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
. C ODE A NN
. §§ 115.001

- .002. The plain language of section 115.001 provides that it applies to all proceedings by or against a
t rustee. See T EX
. P ROP
. C ODE A NN
. § 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. , 361 S.W.3d at 703. In that case, the Court

a nalyzed the interplay between section 115.002 of the Texas Property Code and sectionIn re Wheeler Page 9

15.011 of the Texas Civil Practice and Remedies Code. Id. at 705

- 06. Ultimately, the Court concluded that section 115.001 of the Texas Property Code was inapplicable because the suit did not involve an action relating to the trust itself or the operation of a
trust. Id. at 706

- 07. However, while noting that section 115.001 of the Texas Proper ty Code was amended in 2007 by adding subsection (a

- 1), the Thirteenth Court of Appeals did not acknowledge that subsection (a) was also amended to include all proceedings by or against a trustee. See id. at 706

- 07. Thus, like the Fourth Court of Appeals , we find the amended language of subsection (a) to be controlling in this case. See In re J.P. Morgan Chase Bank, N.A. , 373 S.W.3d at 614. As such, we respectfully disagree with the Thirteenth Court of Appeals’ conclusion that a suit must “concern a tru st” for section 115.001 to apply. 2 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. , 361 S.W.3d at 704. Section 115.002 of the Texas Property Code is a manda tory

- venue statute; thus, it is enforceable by mandamus. See T EX
. P ROP
. C ODE A NN
. § 115.002; T EX
. C IV
. P RAC
. & R EM
.

2 We also note that all of the authority relied upon by the Thirteenth Court of Appeals either predates the 2007 amendment s of Texas Property Code section 115.001 or does not recognize the 2007 amendment s at all. See In re Guardianship of Gibbs , 253 S.W.3d 866, 872 (Tex. App.

— Fort Worth 2008, pet. dism’d) (op. on reh’g); Mobil Oil Corp. v. Shores , 128 S.W.3d 718, 724

- 25 (Tex. App.

— Fort Worth 2004, no pet.); In re Stark , 126 S.W.3d 635, 639 (Tex. App.

— Beaumont 2004, orig. proceeding); see also Retzlaff v. Deshay , No. 14

- 03

- 00833

- CV, 2004 Tex. App. LEXIS 8581, at **13

- 15 (Tex. App.

— Houston [14 th Dist.] Sept. 28, 2004, no pet.) (mem. op.).In re Wheeler Page 10

C ODE A NN
. §§ 15.016, 15.0642; see also 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 at 76; In re J.P. Morgan Chase Bank, N.A. , 361 S.W.3d at 705. Furthermore, “[i]n the case of mandatory venue, relators are not required to show that appeal is an inadequate remedy.” In re J.P. Morgan Chase Bank, N.A. , 361 S.W .3d at 705 (citing In re Transcon. Realty Investors , 271 S.W.3d at 271). Accordingly, we conclude that mandamus relief is appropriate in this

case. IV. C ONCLUSION We conditionally grant relator’s petition for writ of mandamus and direct the trial court t o 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]