NO. 12-0329 - Supreme Court of Texas

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					                                                                      FILED
                                                                      IN THE SUPREME COURT
                                                                      OF TEXAS
                                                                      12 April 30 A9:49
                                                                       BLAKE. A. HAWTHORNE
                                                                      CLERK

                     NO. 12-0329
                   ______________________________

                               IN THE
                      SUPREME COURT OF TEXAS
                    ______________________________

    IN RE LOUIS DORFMAN, K.I. HOLDINGS, LTD, SAM MYERS,
       J.M.D. RESOURCES, INC., BILLY COGDELL BOWDEN,
      BARBARA STANFIELD, STACEY DORFMAN-KIVOWITZ,
JULIA DORFMAN, MARK DORFMAN, DAVID PHILLIP COOK, CHERYL
             KING COOK, AND SAM Y. DORFMAN, JR.,
                                          Relators.
                 ______________________________

                    On Petition for Writ of Mandamus
From the Fourth Court of Appeals, San Antonio, Texas In re J.P. Morgan Chase
                      Bank, N.A., No. 04-12-00006-CV
                   ______________________________

           AMENDED PETITION FOR WRIT OF MANDAMUS
                ______________________________

                                  G. Michael Gruber
                                  Texas Bar No. 08555400
                                  Michael J. Lang
                                  Texas Bar No. 24036944
                                  John Franklin Guild
                                  Texas Bar No. 24041022
                                  Gruber Hurst Johansen Hail Shank LLP
                                  1445 Ross Avenue, Suite 2500
                                  Dallas, Texas 75202
                                  Telephone: (214) 855-6800
                                  Facsimile: (214) 855-6808

                                  Attorneys for Relators: Louis Dorfman, K.I.
                                  Holdings, Ltd., Sam Myers, J.M.D. Resources,
                                  Inc., Billy Cogdell Bowden, Barbara Standfield,
                                  Stacey Dorfman-Kivowitz, Julia Dorfman,
                                  Mark Dorfman, David Phillip Cook, Cheryl
                                  King Cook, and Sam Y. Dorfman, Jr.
                     IDENTITY OF PARTIES AND COUNSEL

Relators

Louis Dorfman, K.I. Holdings, Ltd., Sam Myers, J.M.D. Resources, Inc., Billy
Cogdell Bowden, Barbara Standfield, Stacey Dorfman-Kivowitz, Julia Dorfman,
Mark Dorfman, David Phillip Cook, Cheryl King Cook, and Sam Y. Dorfman, Jr.

Counselfor Relator
     G. Michael Gruber
     Texas Bar No. 08555400
     Mgruber@ghjhlaw.com
     Michael J. Lang
     Texas Bar No. 24036944
     mlang@ghjhlaw.com
     John Franklin Guild
     Texas Bar No. 24041022
     jguild@ghjhlaw.com
     Gruber Hurst Johansen Hail Shank LLP
     1445 Ross Avenue, Suite 2500
     Dallas, Texas 75202
     Telephone: (214) 855-6800
     Facsimile: (214) 855-6808

Trial Court

      The Honorable Donna S. Rayes
      Judge, 81st Judicial District Court
      Karnes County, Texas
      101 N. Panna Maria Avenue
      Karnes City, Texas 78118
      (830) 780-2562 (telephone)
      (830) 769-2841 (facsimile)

Respondent

      The Honorable Keith E. Hottle, Clerk
      The Fourth Court of Appeals Cadena-Reeves
      Justice Center 300 Dolorosa, Suite 3200 San
      Antonio, Texas 78205-3037




                                            i
Real Parties in Interest

      JPMorgan Chase Bank, N.A., as Trustee of the Red Crest Trust

      Orca Assets G.P., L.L.C.

Counselfor Real Parties in Interest

      JPMorgan Chase Bank, N.A., as Trustee of the Red Crest Trust,
      and Phillip Mettham

             Patrick K. Sheehan
             Kevin M. Beiter
             David Jed Williams
             Eduardo L. Morales
             HORNBERGER SHEEHAN FULLER & BEITER INCORPORATED
             The Quarry Heights Building
             7373 Broadway, Suite 300
             San Antonio, TX 78209
             Telephone: (210) 271-1700
             Facsimile: (210) 271-1730

             Robert B. Gilbreath
             HAWKINS, PARNELL, THACKSTON & YOUNG LLP
             Highland Park Place
             4514 Cole Avenue, Suite 500
             Dallas, TX 75205
             Telephone: (214) 780-5100
             Facsimile: (214) 780-5200

      Orca Assets G.P., L.L.C. Orca/ICI Development, Orca
      Petroleum, Ltd, and Allen Berry

             Don Jackson
             Jeffrey W. Chambers
             WARE, JACKSON, LEE & CHAMBERS, L.L.P.
             2929 Allen Parkway, 42nd Floor
             Houston, TX 77019
             Telephone: (713) 659-6400
             Facsimile: (713) 659-6262




                                      ii
                                                 TABLE OF CONTENTS

                                                                                                                                       Page

Identity of Parties and Counsel............................................................................................ i

Index of Authorities ............................................................................................................ v

Statement of the Case ........................................................................................................ xi

Statement of Jurisdiction ................................................................................................... xi

Issues Presented ................................................................................................................ xii

          1.       Whether the Fourth Court of Appeals erred in ordering the
                   district court to transfer this case from Karnes County where
                   venue was mandatory under TEX. Civ. PRAC. & REM. CODE §
                   15.011, to Tarrant County pursuant to TEX. PROP. CODE §
                   115.002, when the nature of this dispute does not invoke the
                   provisions of the Property Code

          2.       Whether the Fourth Court of Appeals erred in ordering the
                   transfer of this real property title dispute based on TEX. PROP.
                   CODE § 115.002, when venue was established pursuant to
                   TEX. CIV. PRAC. & REM. CODE § 15.005 ................................................... xii
                    ..................................................................................................................... xii

Mandamus Record ............................................................................................................ xii

Introduction ........................................................................................................................ 1

Statement of Facts .............................................................................................................. 2

Summary of the Argument ................................................................................................. 4

Argument and Authorities .................................................................................................. 5

          A.       The Trial Court Did Not Abuse Its Discretion In Declining To Transfer
                   This Case From Karnes County Where Venue Was Mandatory .................. 5




                                                                     iii
          B.         Because Venue of This Suit Is Mandatory in Karnes County as to Orca,
                     Venue is Proper in Karnes County as to the Bank ........................................ 6

          C.         The Fourth Court of Appeals Also Erred Because Section
                     115.001 of the Texas Property Code Does Not Apply
                     to Petrohawk’s Claims ................................................................................. 11

                     1.        Section 15.011 Does Not Apply Because Petrohawk Asserted
                               In Rem Claims Against the Property, Not In Personam Claims
                                 “Against a Trustee” or “Concerning a Trust.” ................................ 11

                     2.         The 2007 Amendment to Section 115 of the Texas Property
                                 Code Does Not Change the Analysis ............................................... 14

Prayer ................................................................................................................................. 16

Verification ........................................................................................................................ 17

Certificate of Service ......................................................................................................... 18

Appendix............................................................................................................................ 20




                                                                    iv
                                            INDEX OF AUTHORITIES

                                                                                                                            Page

Cases

Amoco Prod. Co. v. Texas Elec. Serv. Co.,
     614 S.W.2d 194 (Tex. Civ. App.—Houston [14th Dist.] 1981, no writ) ................. 8

Byrum v. Stacy,
     432 S.W.2d 590 (Tex. Civ. App.—Amarillo 1968, no writ) .................................... 8

In re Applied Chem. Magnesias Corp.,
       206 S.W.3d 114 (Tex. 2006) ........................................................................ 5, 11, 12

In re Cerberus Capital Mgmt., L.P.,
       164 S.W.3d 379 (Tex. 2005) (orig. proceeding) ...................................................... 6

In re County of Galveston,
       211 S.W.3d 879 (Tex. App.—Houston [14th Dist.] 2006, no pet.) ......................... 9

In re Evolution Petroleum Co.,
       Cause No. 04-11-00674-CV, 2011 WL 6076181 (Tex. App.—San Antonio
       Dec. 7, 2011, no pet. h.) ........................................................................................... 2

In re Guardianship of Gibbs,
       253 S.W.3d 866 (Tex. App.—Fort Worth 2008, pet. dism’d) ............................... 14

In re J.P. Morgan Chase Bank, N.A.,
        No. 13-11-00707-CV, 2011 WL 6098696 (Tex. App.―Corpus Christi Dec.
        5, 2011, no pet.) ....................................................................................................... 1

In re J.P. Morgan Chase Bank, N.A., ___ S.W.3d ___, 2012 WL 1194410
      (Tex. App.—San Antonio, April 11, 2012, orig. proceeding) passim

In re NationsBank, N.A.,
       01-98-00582-CV, 1999 WL 213100 (Tex. App.—Houston [1st Dist.]
       Apr. 14, 1999, no pet.) ........................................................................................... 14

In re Stark,
       126 S.W.3d 635 (Tex. App.—Beaumont 2004, no pet.) ....................................... 14

In re Texas Windstorm Ins. Ass’n,
       121 S.W.3d 821 (Tex. App.—Beaumont 2003, orig. proceeding) ......................... 10




                                                                 v
In re Transcon. Realty Investors, Inc.,
       271 S.W.3d 270 (Tex. 2008) (orig. proceeding) ...................................................... 6

Madisonville State Bank v. Canterbury, Stuber, Elder, Gooch & Surratt, P.C.,
      209 S.W.3d 254 (Tex. App.—Dallas 2006, no pet.) ................................................ 8

Mayflower Trust Co. v. Nowell,
      413 S.W.2d 783 (Tex. Civ. App.—Houston 1967, writ dism’d)............................ 14

Miller v. Howell,
       234 S.W.2d 925 (Tex. Civ. App.—Fort Worth 1950, no writ h.) ............................ 3

Mobil Oil Corp. v. Shores,
      128 S.W.3d 718 (Tex. App.—Fort Worth 2004, no pet.) ...................................... 14

O.P. Leonard Trust v. Hare,
      305 S.W.2d 833 (Tex. Civ. App.—Texarkana 1957, writ dism’d w.o.j.) ............. 14

Renwar Oil Corp. v. Lancaster,
     276 S.W.2d 774 (Tex. 1955) ................................................................................. 13

Shellberg v. Shellberg,
       428 S.W.2d 117 (Tex. Civ. App.—Fort Worth 1968, writ dism’d) ................. 12, 13

Smith v. Plainview Hosp. & Clinic Found.,
       393 S.W.2d 424 (Tex. Civ. App.—Amarillo 1965, writ dism’d).......................... 14

CONSTITUTION
TEX. CONST. art V, §3......................................................................................................... xi

STATUTES

TEX. CIV. PRAC. & REM. CODE § 15.002 ................................................................... passim

TEX. CIV. PRAC. & REM. CODE § 15.005 ................................................................... passim

TEX. CIV. PRAC. & REM. CODE § 15.011 .................................................................. passim

TEX. CIV. PRAC. & REM. CODE § 15.015 ................................................................... passim

TEX. CIV. PRAC. & REM. CODE § 15.062 ................................................................... passim

TEX. CIV. PRAC. & REM. CODE § 15.0642 .................................................................. x, 5, 6

TEX. GOV’T CODE ANN. §22.002 ........................................................................................ x


                                                               vi
TEX. PROP. CODE § 115.001 ....................................................................................... passim

TEX. PROP. CODE § 115.002 ....................................................................................... passim

OTHER AUTHORITIES

TEX. R. CIV. P. 39 ................................................................................................................ 3

TEX. R. APP. P. 52 .............................................................................................................. ix




                                                                 vii
                           STATEMENT OF THE CASE

Nature of the Case:       This is a dispute over title to real property, and in particular,
                          mineral interests, located in Karnes County, Texas. (R. 1-21).
                          Relators, Louis Dorfman, K.I. Holdings, Ltd., Sam Myers,
                          J.M.D. Resources, Inc., Billy Cogdell Bowden, Barbara
                          Standfield, Stacey Dorfman-Kivowitz, Julia Dorfman, Mark
                          Dorfman, David Phillip Cook, Cheryl King Cook, and Sam Y.
                          Dorfman, Jr. (collectively “Dorfman”) filed this lawsuit upon
                          discovering that Real Party in Interest J.P. Morgan Chase
                          Bank, N.A., as Trustee of the Red Crest Trust (“the Bank”),
                          granted an Oil, Gas and Mineral Lease to Real Party in
                          Interest Orca Assets, G.P., L.L.C. (“Orca”) covering the same
                          200 acres of property Relators previously leased to Petrohawk
                          Property LP (“Petrohawk”) (R. 1-21). Dorfman filed suit
                          against Orca in Karnes County to quit title to the property and
                          have the lease between Orca and the Bank declared void, and
                          joined the Bank as a necessary party to the action. (R. 13-15).
                          Dorfman asserted other claims against the Bank as well. (R.
                          15-19).

Trial Court:              The Honorable Donna S. Rayes of the 81st District Court of
                          Karnes County, Texas.

Trial Court’s             J.P. Morgan Chase Bank, N.A. filed a motion to transfer
Disposition:              venue of the proceedings to Tarrant County, Texas. (R. 22-
                          2282). The trial court denied the Bank’s motion. (R. 189);
                          (App. Tab A).

Parties in the Court of   Relator: J.P. Morgan Chase Bank, N.A.
Appeals:                  Respondent: The Honorable Donna S. Rayes,
                          The Honorable H. Paul Canales, Retired Judge,
                          Bexar County Court at Law
                          Real Parties in Interest: Louis Dorfman,
                          K.I. Holdings, Ltd., Sam Myers, J.M.D.
                          Resources, Inc., Billy Cogdell Bowden,
                          Barbara Standfield, Stacey Dorfman-
                          Kivowitz, Julia Dorfman, Mark Dorfman,
                          David Phillip Cook, Cheryl King Cook,
                          and Sam Y. Dorfman, Jr.; Orca Assets
                          G.P., LLC, Orca/ICI Development, Orca
                          Petroleum, Ltd, and Allen Berry


                                          viii
                                    Court ofAppeals: The Fourth Court of
                                    Appeals, San Antonio, Texas. The Panel
                                    deciding this case included Chief Justice
                                    Catherine Stone, Justice Sandee Bryan
                                    Marion, and Justice Phylis J. Speedlin.

Court ofAppeals’   J.P. Morgan Chase Bank, N.A., as Trustee of the Red Crest
Disposition:       Trust, filed a Petition for Writ of Mandamus in the Fourth Court
                   of Appeals. (R. 190-207). The Court of Appeals conditionally
                   granted the writ of mandamus in an opinion issued on April 11,
                   2012. (R. 364-371); (App. Tab B); see Cause No. 04-12-00006-
                   CV; In re J.P. Morgan Chase Bank, N.A., ___ S.W.3d ___, 2012
                   LEXIS 2814 (Tex. App.—San Antonio, April 11, 2012, orig.
                   proceeding). The Court of Appeals ordered the trial court to
                   transfer the case within fourteen days of the date of its opinion.
                   (R. 371).




                                     ix
                         STATEMENT OF JURISDICTION

      The Court has jurisdiction under Article V, Section 3 of the Texas Constitution,

Section 22.002 of the Texas Government Code, and Rule 52 of the Texas Rules of

Appellate Procedure to grant the writ of mandamus sought in this petition. See TEX.

CONST. art V, §3; TEX. GOV’T CODE ANN. §22.002; TEX. R. APP. P. 52. This Court also

has jurisdiction over this proceeding pursuant to Section 15.0642 of the Texas Civil

Practice and Remedies Code, which allows a party to seek mandamus relief in an appellate

court to enforce a mandatory venue provision. See TEX. CIV. PRAC. & REM. CODE §

15.0642.




                                           x
                               ISSUES PRESENTED

1.   Whether the Fourth Court of Appeals erred in ordering the district court to transfer
     this case from Karnes County where venue was mandatory under TEX. CIV. PRAC.
     & REM. CODE § 15.011, to Tarrant County pursuant to TEX. PROP. CODE § 115.002,
     when the nature of this dispute does not invoke the provisions of the Property Code.

2.   Whether the Fourth Court of Appeals erred in ordering the transfer of this real
     property title dispute based on TEX. PROP. CODE § 115.002, when venue was
     established pursuant to TEX. CIV. PRA. & REM. CODE § 15.005.




                                          xi
                                             MANDAMUS RECORD

      Accompanying this petition is a record which contains the following exhibits that
are incorporated herein by reference. The Mandamus Record will be cited as (R. [page
number]).

Tab                                                                                                                       MR#

1.    Plaintiffs’ Original Petition dated
      July 12, 2011 ........................................................................................................... 1

2.    Defendant J.P. Morgan Chase Bank, N.A.’s Motion to Transfer Venue
      and, Subject Thereto, Original Answer dated August 5, 2011 .............................. 22

3.    E-mail dated September 26, 2011, from the Court Coordinator of
      the 81st and 218th District Courts in Karnes County, Texas,
      confirming a setting on the non-jury docket for November 10, 2011 ....................27

4.    Plaintiffs’ Response to Defendant’s Motion
      To Transfer Venue dated September 27, 2011 .......................................................29

5.    Orca Assets, G.P., L.L.C.’s Response to
      Defendants’ Motion to Transfer Venue dated October 7, 2011............................111

6.    Defendant J.P. Morgan Chase Bank, N.A.’s Reply in Support of
      its Motion to Transfer Venue dated October 20, 2011 .........................................140

7.    Plaintiffs’ Reply to Defendant’ Response to Specific Denial of Venue Facts and
      Objection to Evidence dated October 25, 2011 .................................................. 180

8.    Order Denying Defendant’s Motion to Transfer Venue signed by the
      Judge of the 218th Judicial District Court of Karnes County, Texas
      on November 10, 2011 ........................................................................................ 189

9.    J.P. Morgan Chase Bank, N.A.’s Petition for Writ of Mandamus filed
      in the Fourth Court of Appeals on January 5, 2012 ..............................................190

10. Louis Dorfman, et al.’s Response to Petition for Writ of
    Mandamus filed in the Fourth Court of Appeals on January 23, 2012 .................279

11.    Orca Petroleum, Ltd., et al.’s Response to Petition for Writ of
       Mandamus filed in the Fourth Court of Appeals on January 23, 2012................. 237

12.    J.P. Morgan Chase Bank, N.A.’s Reply Brief in Support of Petition
       for Writ of Mandamus filed in the Fourth Court of Appeals on
       February 2, 2012 ................................................................................................... 357

                                                              xii
13.   Opinion issued by the Fourth Court of Appeals in San Antonio,
      Texas conditionally granting the Petition for Writ of Mandamus
      dated April 11, 2012 ............................................................................................. 364

14.   Louis Dorfman, et al.’s Emergency Motion to Stay Transfer of Venue
      filed in the 81st District Court of Karnes County, Texas on
      April 20, 2012 ....................................................................................................... 372

15.   Affidavit of Michael Lang, dated April 25, 2012 ................................................. 345




                                                            xiii
                                    INTRODUCTION

            This case presents two important issues concerning the interpretation and

application of the Texas venue rules as they pertain to lawsuits involving multiple

defendants and lawsuits involving trustees. First, this case involves the important question

of whether a suit by or against a corporate trustee must be brought in the county where the

trust is administered, regardless of the nature of the claims being asserted. At least one

other case involving this second issue is currently pending before this Court. See No. 12-

165, In re JPMorgan Chase Bank, N.A. Moreover, the opinion of the Court of Appeals here

is in direct conflict with a decision of the Thirteenth Courts of Appeals involving similar

facts and issues. See In re J.P. Morgan Chase Bank, N.A., No. 13-11-00707-CV, 2011 WL

6098696, ___ S.W.3d ___ (Tex. App.—Corpus Christi Dec. 5, 2011, orig. proceeding).

However, it was the Fourth Court of Appeals that reached the improper result, as its

decision not only relinquishes any consideration of the nature of the claims at issue, but

renders much of the statutory language at issue meaningless. Because both of these issues

have the potential to affect the determination of proper venue in every lawsuit involving

multiple parties and every lawsuit by or against a trustee, this Court should grant

mandamus relief.
                                STATEMENT OF FACTS

        This lawsuit arises out of a title dispute between Dorfman, Real Party in Interest,

Orca Assets, G.P., L.L.C. (“Orca”), and JP Morgan Chase Bank, N.A., in its capacity as

Trustee of the Red Crest Trust (“the Bank”). (R. 1-26).The parties claim conflicting

ownership and leasing rights in mineral interests in tracts of land located in the Eagle Ford

Shale, Karnes County, Texas. (R. 1). Dorfman filed this lawsuit in Karnes County,

2756034v1                                    1
Texas, the County where the property is located. (R. 1); see TEX. CIV. PRAC. & REM.

CODE § 15.011.

      Dorfman, or their predecessor, lease oil and gas interests on the Property to Petro-

Hunt, L.L.C. in December 2010. (R. 3-4). Petro-Hunt, L.L.C. previously obtained the

leases by assignment from Moffitt & Associates, Inc. in July 2010. (R. 4). In turn, Moffitt

& Associates had obtained its leases from the heirs and assigns of J.W. Moravits in 2009

(collectively, the “Petrohawk Lease”). (R. 3-5).

      On October 15, 2010, Orca recorded a Memorandum of Paid Up Oil And Gas Lease

giving notice that the Bank, as trustee of the Red Crest Trust, granted Orca a competing oil

and gas lease (the “Orca Lease”) covering the Property. (R. 12, 34, 66-69)).

      However, On April 6, 1944, in the case styled Mary Moravitz, et al. v. McMullen Oil

& Royalty Company, Inc., et al., Cause No. 4602, in the 81st District Court of Karnes

County, Texas, this Court declared the deed from which the Bank traces its title void,

ordered that it be “cancelled and held for naught,” and decreed that title in the mineral

interests in the 200.1 Acres was held by Mary Moravitz and her sons Frank and John S.

Moravitz, from whom Plaintiffs trace title (the “1944 Judgment”). (R. 334-35). The Bank

is in this suit because it claims, in its capacity as Trustee of the Red Crest Trust, to own an

interest in the real property at issue. (R. 1). The beneficiaries of the Red Crest Trust are the

heirs of H.J. McMullen. (R. 1)

       Dorfman filed this lawsuit against Orca in Karnes County, the County where the

property in dispute was located. (R. 3). Specifically, Dorman sued Orca and the Bank to

quiet title, and sought declaratory relief concerning the validity of Orca’s and the Bank’s


                                               2
claims in light of the prior judgment from the 81st District Court that invalidated a deed

from which they claim title. (R. 6-12).

      The Bank filed a motion for transfer of venue pursuant to Section 115.002 of the

Texas Property Code. (R. 22-27). The Bank claimed that Section 115.002 of the Texas

Property Code requires any action brought against a corporate trustee to be brought in the

county where the trust is administered. (R. 22, R. 140-79 ); see also TEX. PROP. CODE §

115.002. Dorfman and Orca both opposed the Bank’s motion on the basis that venue was

mandatory in the county where the property is located. (R. R. 29-110, R. 111-140, R. 180-

88). The Honorable Donna S. Rayes presides over the 81st District Court of Karnes

County, Texas. However, on October 28, 2011, the Honorable H. Paul Canales, a retired

judge, heard the Bank’s Motion to Transfer Venue and denied the motion. (R. 189) (App.

Tab 1).

       Presently, there are at least two other lawsuits pending involving the Red Crest

Trust in which the Bank is a party. One of the cases is pending in DeWitt County, Texas

(“DeWitt County Case”), and is styled Orca Assets, G.P., L.L.C. v. JPMorgan Chase

Bank, NA., et al., Cause No. 11-02-21,817; in the 24th Judicial District Court of DeWitt

County, Texas. The other case is pending in Karnes County, Texas, and is styled

Petrohawk Property, L.P. v. JPMorgan Chase Bank, N.A., et. al., Cause No. 11-6-00150

CVK; in the 81st Judicial District Court of Karnes County, Texas (“Petrohawk case”).

Both lawsuits concern disputes over oil and gas leases executed by the Bank on behalf of

the Red Crest Trust. In both cases, the Bank unsuccessfully attempted to transfer venue to

Tarrant County under Section 115.002 of the Property Code.


                                            3
      On December 5, 2011, the Thirteenth Court of Appeals denied the Bank mandamus

relief in the DeWitt County Case. See In re J.P. Morgan, 2011 WL 6098696, at *4. The

Court of Appeals held that Section 115.002 of the Texas Property Code did not mandate

transfer of the case to Tarrant County. Id. at *3. The Bank has since filed a Petition for

Writ of Mandamus in this Court, arguing the same issue as in this case. See No. 12-165, In

re JPMorgan Chase Bank, N.A., in the Supreme Court of Texas.

      Undeterred by the Thirteenth Court of Appeals’ rejection of its venue argument, the

Bank sought mandamus relief from the Fourth Court of Appeals on the same issue in both

this case and the Petrohawk Case. (R. 190-220, R. 257-363). On April 11, 2012, the

Fourth Court of Appeals conditionally granted the writ of mandamus in both cases,

allowing the trial courts just fourteen (14) days to execute orders transferring the two cases

to Tarrant County. (R. 364-71) (App. Tab 2). Because the trial court properly denied the

Bank’s motion to transfer venue, Dorfman asks that the Court grant this Petition for Writ

of Mandamus and direct the Court of Appeals to vacate its order requiring the district court

to transfer this case to Tarrant County.

                           SUMMARY OF THE ARGUMENT

      The Fourth Court of Appeals’ decision to conditionally grant the writ of

mandamus and order the transfer of this case to Tarrant County is contrary to the plain

statutory language of the Texas Civil Practice and Remedies Code. See In re J.P.

Morgan, 2012 WL 1194410 at *4. Dorfman established proper venue in Karnes

County as to all defendants—including the Bank—under section 15.005 of the Texas

Civil Practice and Remedies Code because it established proper venue as to Orca under

                                              4
section 15.011, the statute requiring suits involving real property to be brought in the

county where the property is located. TEX. CIV. PRAC. & REM. CODE §§ 15.005, 15.011.

Further, the Court of Appeals’ decision that section 115.001 of the Texas Property Code

controls over section 15.011, a mandatory venue provision, is also in error for the reason

that section 115.001 does not apply in this case. Section 115.001 of the Texas Property

Code does not encompass Petrohawk’s claims because they are in rem property claims

being brought against the land itself, not in personam claims being brought against the

trustee. The Court of Appeals’ interpretation of the scope of section 115.001 would not

only render most of the language in the statute meaningless, but also deprive trial courts

of the discretion to determine whether venue is proper based on the nature of the claims

being asserted by or against a corporate trustee. The Court of Appeals’ opinion also

directly conflicts with the Thirteen Court of Appeals’ resolution of this issue. Mandamus

is necessary because the trial court acted properly in declining to transfer venue of this

action to Tarrant County.

                            ARGUMENT AND AUTHORITIES

A.    The Trial Court Did Not Abuse Its Discretion In Declining To Transfer This
      Case From Karnes County Where Venue Was Mandatory.

      Mandamus is appropriate to enforce the mandatory venue provisions in Chapter 15

of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE §

15.0642; In re Applied Chem. Magnesias Corp., 206 S.W.3d 114, 116 (Tex. 2006) (orig.

proceeding). “A trial court abuses its discretion if it . . . clearly fails to correctly analyze or

apply the law.” In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005)

(orig. proceeding) (internal quotations omitted). The trial court acted within its sound
                                                5
discretion here in declining to transfer this case from a county of mandatory venue under

section 15.011 of the Texas Civil Practice and Remedies Code. See Scott v. Twelfth Court

of Appeals, 843 S.W.2d 439, 440 (Tex. 1992) (orig. proceeding) (when the Court reviews

the grant of a writ of mandamus by the court of appeals, the Court should focus on

whether the trial court abused its discretion).

      The Fourth Court of Appeals erred in deciding that the transfer of this case was

required under section 115.002 of the Texas Property Code, and granting mandamus relief.

In re J.P. Morgan, 2012 WL 1194410 at *6-124. The Court’s opinion not only disregards

the plain language of numerous controlling venue statutes, but it also renders much of the

language in Texas Property Code Section 115.002 meaningless, and directly conflicts with

the prior opinion of the Thirteenth Court of Appeals on this issue.

      Because the trial court did not abuse its discretion, the issuance of mandamus by the

Court of Appeals was improper and constituted an abuse of discretion. See Scott, 843

S.W.2d at 440. Further, as mandamus review is sought here pursuant to section 15.0642 of

the Texas Civil Practice and Remedies Code, “[n]o showing is required that appeal is an

inadequate remedy.” In re Transcon. Realty Investors, Inc., 271 S.W.3d 270, 271 (Tex.

2008) (orig. proceeding). Mandamus relief is necessary and warranted here.

B.    The Fourth Court of Appeals Also Erred Because Section 115.001 of the
      Texas Property Code Does Not Apply to Dorfman’s Claims.

      The Court of Appeals erred in determining that Section 115.001 of the Texas

Property Code was controlling here. In re J.P. Morgan, 2012 Tex. App. LEXIS 2814, at

*6-12. Because this suit involves title to real estate, and is not a suit relating directly to the

trustee’s administration of a trust, section 115.001 does not apply. The Court of Appeals’

                                                  6
conclusion to the contrary must be reversed.

      1.        Section 115.001 Does Not Apply Because Dorfman Asserted In Rem
               Claims Against The Property, Not In Personam Claims “Against A
               Trustee” or “Concerning a Trust.”

      The trial court’s refusal to transfer venue to Tarrant County was proper for the

additional reason that Dorfman’s claims against Orca and the Bank are controlled by

Section 15.011 of the Texas Civil Practice and Remedies Code, not Section 115.001 of the

Texas Property Code. The mandatory venue statute for real property claims provides:

               Actions for recovery of real property or an estate or interest in
               real property, for partition of real property, to remove
               encumbrances from the title to real property, for recovery
               of damages to real property, or to quiet title to real property
               shall be brought in the county in which all or a part of the
               property is located.

TEX. CIV. PRAC. & REM. CODE ANN. § 15.011 (West 2011) (emphasis added).

           “Section 15.011 of the Civil Practice and Remedies Code governs venue in suits

involving land disputes.” In re Applied Chem. Magnesias Corp., 206 S.W.3d 114, 117

(Tex. 2006) (orig. proceeding). It is undisputed that Dorfman brought a quiet title claim,

and a declaratory judgment claim concerning title to the Property against Orca to establish

that the Petrohawk Lease is superior to the Orca Lease, and to invalidate the Orca Lease.

(R. 13-15). Because this is a land dispute and all of Dorfman’s claims involve the

adjudication of an interest in real property located Karnes County, venue for this lawsuit is

mandatory in Karnes County. See In re Evolution Petroleum Co., No. 04-11-00674- CV,

2011 WL 6076181, at *3 (Tex. App.—San Antonio Dec. 7, 2011, no pet. h.).

      Nevertheless, the Court of Appeals decided that venue should be transferred to

Tarrant County under Section 115.002 of the Texas Property Code because Dorfman’s suit
                                               7
to quiet title constituted a proceeding against a trustee under Section 115.001 of the Texas

Property Code. In re J.P. Morgan, 2012 Tex. App. LEXIS 2814, at *6-12. The Court of

Appeals erred in reaching this decision because it failed to consider the nature of the

claims at issue in this lawsuit—an analysis that is not only required by common law, but

also required by Section 115.001 itself.

      It has long been the law that the nature or essence of the plaintiff’s claims must be

considered when determining the appropriate venue for a suit. In re Applied Chem., 206

S.W.3d at 119; Renwar Oil Corp. v. Lancaster, 276 S.W.2d 774, 775 (Tex. 1955); In re

Evolution Petroleum, 2011 WL 6076181, at *2. The core dispute here is over the title to

the property. The Bank is a party because the Trust is a necessary party given its claim to

an interest in the Property. Venue is properly maintained in Karnes County because the

primary claims Dorfman asserted in the lawsuit are in rem claims against the Property, not

in personam claims against the Bank.

      The fact that the nature of the claims can be dispositive of the venue issue was

addressed in Shellberg v. Shellberg, 428 S.W.2d 117, 121 (Tex. Civ. App.—Fort Worth

1968, writ dism’d). In that case, the plaintiffs were trustees seeking a declaratory judgment

in Tarrant County regarding their duties, rights, and the validity of a trust instrument. Id. at

118. The defendants sought to transfer venue to Moore County because they claimed it

involved land located in Moore County. Id. The trustees objected claiming that venue

should be maintained in Tarrant County, where the trust at issue was administered, under

the predecessor statute to Section 115.001 and .002. Id. The Court of Appeals concluded

that the venue question should turn on whether the claims being alleged were in personam

                                               8
claims against the trust or in rem claims against the property, and because the trustees’

claims were in personam claims, venue should remain in Tarrant County. The court

reasoned that the “character of [the] case” and the facts alleged was dispositive, and “the

suit was brought primarily to construe the written Trust Agreement, determine the rights

and duties of the various trustees and beneficiaries, and to require an accounting” relating

to the trustee’s actions. Id. at 121; also see Miller v. Howell, 234 S.W.2d 925 (Tex. Civ.

App.—Fort Worth 1950, no writ h.).

       The instant case presents the opposite situation. Unlike the plaintiffs in Shellberg,

this case is first and foremost a suit to quiet title, and declare title to Property, all of which

are in rem claims relating to real property.

       The error in the Court of Appeals’ decision to interpret section 115.001 as

encompassing Dorfman’s in rem property claims is further demonstrated by the fact that

such claims are not contemplated within the “laundry list” of claims provided in Section

115.001. See TEX. PROP. CODE § 115.001(a)(1)-(10). Dorfman has not asked the trial court

to construe the Red Crest Trust agreement, determine the rights and duties of the trustee

and beneficiaries of the Red Crest Trust, require an accounting from the Bank, or for any

other relief resembling the type of relief outlined in Section 115.001 of the Texas Property

Code. Thus, not only are Dorfman’s in rem claims not “against a trustee,” they also do not

“concern a trust,” precluding the application of Sections 115.001 and 115.002 to this case.

The Court of Appeals’ interpretation renders the “laundry list” meaningless. The trial court

properly exercised its discretion in refusing to transfer Dorfman’s in rem property claims

to Tarrant County.

                                                9
      2.     The 2007 Amendment to Section 115 of the Texas Property Code Does
             Not Change the Analysis.

      Since 1957, numerous appellate courts have rejected the Bank’s position that

Section 115.001 of the Texas Property Code applies to tort and other claims outside the

general scope of the interpretation, administration, or operation of a trust or trust

instrument. See In re Guardianship of Gibbs, 253 S.W.3d 866, 872 (Tex. App.—Fort

Worth 2008, pet. dism’d); In re Stark, 126 S.W.3d 635, 639 (Tex. App.—Beaumont 2004,

no pet.) (orig. proceeding); Mobil Oil Corp. v. Shores, 128 S.W.3d 718, 724–25 (Tex.

App.—Fort Worth 2004, no pet.); In re NationsBank, N.A., 01-98-00582-CV, 1999 WL

213100, at * 4-5 (Tex. App.—Houston [1st Dist.] Apr. 14, 1999, orig. proceeding);

Mayflower Trust Co. v. Nowell, 413 S.W.2d 783, 786 (Tex. Civ. App.—Houston 1967,

writ dism’d); Smith v. Plainview Hosp. & Clinic Found., 393 S.W.2d 424, 426 (Tex. Civ.

App.—Amarillo 1965, writ dism’d); O.P. Leonard Trust v. Hare, 305 S.W.2d 833, 836

(Tex. Civ. App.—Texarkana 1957, writ dism’d w.o.j.).

      Nevertheless, the Court of Appeals determined that these cases are inapplicable

because Section 115.001(a) of the Texas Property Code was amended in 2007 to apply to

“all proceedings by or against a trustee.” In re J.P. Morgan, 2012 Tex. App. LEXIS 2814,

at *9-11. The Thirteenth Court of Appeals rejected this argument, reasoning that “[w]hile

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.” In re J.P. Morgan, 2011 WL 6098696, at *3, 4.

                                            10
      The Fourth Court of Appeals’ reliance on the “all proceedings by or against a

trustee” language in section 115.001 erroneously assumes courts are no longer obligated to

consider the nature of the proceedings in deciding whether Section 115.001 should apply.

Such an interpretation would effectively render the majority of the statutory language

superfluous, and is contrary to basic principles of statutory constitution. Moreover, the

Court of Appeals’ rationale would lead to absurd results where multiple trustees are joined

as parties to a lawsuit, as is common in the case of oil and gas lease disputes. Each trustee

would claim venue in the place where the trust is administered, creating uncertainty and

conflicts among Texas district courts. To the extent the Court of Appeals’ decision holds

contrary to the Thirteenth Court of Appeals, it must be reversed.

C.     Because Venue of This Suit Is Mandatory in Karnes County as to Orca,
       Venue is Proper in Karnes County as to the Bank.
      The trial court also properly denied the Bank’s motion to transfer venue because

once Dorfman established that venue was mandatory in Karnes County for all of its claims

against Orca, venue there became proper for its claims against all other defendants—

specifically, the Bank. See TEX. CIV. PRAC. & REM. CODE §§ 15.005 and 15.011. Section

15.011 of the Texas Civil Practice and Remedies Code provides that a suit concerning an

interest in land and primarily involving a suit to quiet title to real property must be filed

where the property is located. See id. at § 15.011. The fact that this case involves claims

to real property is not in dispute. Similarly, Orca admits that venue is mandatory in

Karnes County. (R. 111-17).

      The Fourth Court of Appeals erroneously determined that “the mandatory venue

provisions in section 115.002 of the Texas Property Code” prevail over section 15.011 of
                                             11
the Texas Civil Practice and Remedies Code. In re J.P. Morgan, 2012 WL 1194410, at *3.

Section 115.002(c) of the Property Code provides that venue of an action involving a

corporate trustee “shall be brought in the county in which the situs of the administration of

the trust is maintained. . . .” See TEX. PROP. CODE § 115.002. The Court of Appeals based

its decision on Section 15.016 of the Texas Civil Practice and Remedies Code which

requires that “an action governed by any other statute prescribing mandatory venue shall

be brought in the County required by that statute.” See TEX. CIV. PRAC. & REM. CODE §

15.016; J.P. Morgan, 2012 WL 1194410 at *3.

      Under the plain language of section 15.005, the fact that venue has been

established as to Orca, establishes venue as to the Bank. Section 15.005 of the Code

provides that “[i]n a suit in which the plaintiff has established proper venue against a

defendant, the court also has venue of all the defendants in all claims or actions arising

out of the same transaction, occurrence, or series of transactions or occurrences.” TEX.

CIV. PRAC. & REM. CODE §15.005. The Bank has never disputed that it was properly

joined in the lawsuit, or that all of the claims Petrohawk alleges arose out of the same

transaction or occurrence. Petrohawk established that venue was proper in Karnes County

under Section 15.005, regardless of where the Bank administered the Trust.
      The purpose of Section 15.005 is to promote judicial economy and avoid a

multiplicity of suits by eliminating the need to establish proper venue as to all defendants

that have been properly joined in a case. See Amoco Prod. Co. v. Texas Elec. Serv. Co.,

614 S.W.2d 194, 196-97 (Tex. Civ. App.—Houston [14th Dist.] 1981, no writ). Thus,

once Petrohawk established that venue was proper as to one defendant, venue was proper


                                             12
as to all defendants facing claims that arose out of the same transaction or occurrence.

Madisonville State Bank v. Canterbury, Stuber, Elder, Gooch & Surratt, P.C., 209 S.W.3d

254, 257 (Tex. App.—Dallas 2006, no pet.) (“The plaintiff, by filing a lawsuit, is given

first choice regarding venue.”)

       The Fourth Court of Appeals’ decision that section 15.016 of the Texas Civil

Practice and Remedies Code should control the determination is in error, because it is

contrary to the Legislature’s intent that in cases involving multiple defendants facing

claims that arise out of the same transaction or occurrence, the plaintiff need only establish

proper venue as to one defendant. In re J.P. Morgan, 2012 WL 1194410 at *3. Section

15.005 is neither a permissive nor mandatory venue statute, but a joinder statute designed

to avoid a multiplicity of suits by allowing venue to be maintained against appropriately

joined defendants that would otherwise be improper. See e.g. Byrum v. Stacy, 432 S.W.2d

590, 592 (Tex. Civ. App.—Amarillo 1968, no writ).

      Texas courts have interpreted similar joinder statutes where proper venue is already

established to preclude venue changes based on mandatory venue provisions applicable to

additional defendants. For example, section 15.062 of the Texas Civil Practice and

Remedies Code provides that “[v]enue of the main action shall establish venue of a

counterclaim, cross claim, or third-party claim properly joined....” See TEX. CIV. PRAC. &

REM. CODE §15.062. The Fourteenth Court of Appeals recently resolved a similar conflict

between that statute and another mandatory venue statute. In re County of Galveston, 211

S.W.3d 879, 882-83 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding), involved

a case where Galveston County was joined in a lawsuit through a third party action for


                                             13
indemnity. Id. at 881. Galveston County filed a motion to transfer venue based on a

statute requiring an action against a county to be brought in that County. See TEX. CIV.

PRAC. & REM. CODE §15.015; In re County of Galveston, 211 S.W.3d at 881. The trial

court denied Galveston County’s motion, and the Fourteenth Court of Appeals affirmed,

finding that venue was proper in Harris County where the suit was filed based on section

15.062 because venue of the main action established venue of any third party claim. The

court reasoned that the two statutes had to be read together, and that Section 15.062

controlled because Galveston County did not contest that it had been joined properly in

the suit. Id. at 882-83.

      The same reasoning should be applied to the claims and parties in this case. Under

the court’s reasoning in In re Galveston County, 211 S.W.3d at 881, had Orca joined the

Bank in this suit, it is readily apparent that venue would be proper in Karnes County under

Section 15.062(a). TEX. CIV. PRAC. & REM CODE § 15.062(a). Further, venue would have

also been proper over claims Dofrman would have asserted against the Bank, as it is

undisputed that Dorfman’s claims arose out of the same transaction or occurrence as those

against Orca. Id. at § 15.062(b).

       The Fourth Court of Appeals erred in failing to apply the same rationale so as to

recognize the controlling effect Section 15.005. Section 15.005 should be construed to

allow venue to be maintained in a County where venue is mandatory as to one defendant,

despite the presence of another defendant to which a different mandatory venue statute is

claimed to apply. Such an interpretation would not only achieve the judicial economy the

statute was designed to promote, but would also be consistent with the Legislature’s


                                            14
decision to exclude the mandatory venue exception that is currently present in Section

15.004 from the text of Section 15.005 when the two statutes were amended in 1995.1

Indeed, to interpret Section 15.005 otherwise would lead to an absurd result—that venue

for Dorfman’s claims would be proper against the Bank if Orca had joined the Bank as a

third party defendant in the lawsuit, but not if Dorfman joined the Bank as an original

defendant. This Court should find that venue is proper against the Bank under Section

15.005, and that the trial court did not abuse its discretion in denying the Bank’s motion to

transfer venue.

                                                   PRAYER

        Dorfman respectfully requests that the Court grant this Petition for Writ of

Mandamus and require the Fourth Court of Appeals to vacate its April 11, 2012 Order

conditionally granting JPMorgan Chase Bank, N.A.’s Petition for Writ of Mandamus.

Dated: April 30, 2012.




1
  Prior to 1995, the provisions of §§ 15.004 and 15.005 were combined into a single statute, § 15.061, wherein the
exception for mandatory venue provisions was applied to multiple claim and multiple defendant scenarios. See In re
Texas Windstorm Ins. Ass’n, 121 S.W.3d 821, 824-25 (Tex. App.—Beaumont 2003, orig. proceeding). However,
when the Legislature revised Chapter 15 in 1995, it separated the multiple claim and multiple defendant concepts
into two provisions (§ 15.004 and § 15.005), and only placed the mandatory venue exception into § 15.004. Id. “Had
the legislature sought to mandate that the mandatory venue provision as to any one defendant would control as to all
defendants, it could have put a similar provision in Section 15.005.” Id. at 828 (Burgess, J. dissenting).
                                                        15
Respectfully submitted,
       /s/ Michael J. Lang
      G. Michael Gruber
      Texas Bar No. 08555400
      Michael J. Lang
      Texas Bar No. 24036944
      John Franklin Guild
      Texas Bar No. 24041022
      Gruber Hurst Johansen & Hail LLP
      1445 Ross Avenue, Suite 2500
      Dallas, Texas 75202
      Telephone: (214) 855-6800
      Facsimile: (214) 855-6808
   Attorneys for Relators: Louis Dorfman, K.I.
   Holdings, Ltd., Sam Myers, J.M.D.
   Resources, Inc., Billy Cogdell Bowden,
   Barbara Standfield, Stacey Dorfman-
   Kivowitz, Julia Dorfman,




  16
      RULE 52.3(j) CERTIFICATION OF FACTS AND VERIFICATION OF
                        APPENDIX AND RECORD

       Before me, the undersigned authority, on this day personally appeared Lauren Beck
Harris, the person whose name is subscribed below and who, on her oath, stated that (i)
she is attorney for Relator; (ii) she has reviewed Relator's Petition for Writ of Mandamus
and concluded that every factual statement in the petition is supported by competent
evidence included in the appendix and record, and (iii) the items in the appendix and
record are true and correct copies of the original documents.


                                                                   Michael J. Lang

Given under my hand and official seal of office this ____ day of April 2012.
____________________Notary Public




                                                   17
                              CERTIFICATE OF SERVICE
     I hereby certify that on April 30, 2012, a true and correct copy of the foregoing
document was filed electronically and served as follows:

Patrick K. Sheehan                            By electronic transmission
Kevin M. Beiter
David Jed Williams
Eduardo L. Morales
HORNBERGER SHEEHAN FULLER &
BEITER INCORPORATED
The Quarry Heights Building
7373 Broadway, Suite 300
San Antonio, TX 78209
(210) 271-1700 (telephone)
(210) 271-1730 (facsimile)

Attorneys for Real Party in Interest
JPMorgan Chase Bank, N.A., as Trustee
of the Red Crest Trust

Robert B. Gilbreath
HAWKINS, PARNELL, THACKSTON &                 By electronic transmission
YOUNG LLP
Highland Park Place
4514 Cole Avenue, Suite 500
Dallas, TX 75205
(214) 780-5100 (telephone)
(214) 780-5200 (facsimile)

Attorneys for Real Party in Interest
JPMorgan Chase Bank, N.A., as Trustee
of the Red Crest Trust

The Honorable Donna S. Rayes
Judge, 81st Judicial District Court           By regular mail
Karnes County, Texas
101 N. Panna Maria Avenue
Karnes City, Texas 78118
(830) 780-2562 (telephone)
(830) 769-2841 (facsimile)




                                         18
The Honorable Keith E. Hottle, Clerk
The Fourth Court of Appeals Cadena-                          By regular mail
Reeves Justice Center 300 Dolorosa,
Suite 3200 San Antonio, Texas
78205-3037

Respondent


Don Jackson
Jeffrey W. Chambers                                             By electronic
WARE, JACKSON, LEE & CHAMBERS,                                  transmission
L.L.P.
2929 Allen Parkway, 42nd Floor
Houston, TX 77019
(713) 659-6400 (telephone)
(713) 659-6262 (facsimile)

Attorneys for Orca Assets G.P., L.L.C., et al.




                                                 /s/ Michael J. Lang
                                                     Michael J. Lang




                                         19
                                 APPENDIX

Tab 1:   Order denying Defendant JP Morgan Chase Bank, N.A.’s Motion to Transfer
         Venue signed October 27, 2011

Tab 2:   Fourth Court of Appeals Opinion, Cause no. 04-12-00006-CV, In Re J.P.
         Morgan Chase Bank, N.A., in its Individual Capacity, and as Trustee of the
         Red Crest Trust.

Tab 3:   TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.004, 15.005

Tab 4:   TEX. CIV. PRAC. & REM. CODE ANN. § 15.011

Tab 5:   TEX. CIV. PRAC. & REM. CODE ANN. § 15.062

Tab 6:   CHAPTER 115. JURISDICTION, VENUE, AND PROCEEDINGS




                                       20
Appendix Tab 1
                                                                                30~75, CO).




                              CAUSE NO. 11-07-00165 CVK

LOUIS DORFMAN, K.I.                      §   IN THE DISTRICT COURT OF
HOLDINGS, LTD., SAM MYERS,               §
J.M.D. RESOURCES, INC., BILLY            §
COGDELL BOWDEN, BARBARA                  §
STANFIELD, STACEY                        §
DORFMAN-KIVOWITZ, JULIA                  §
DORFMAN, MARK DORFMAN,                   §
DAVID PHILLIP COOK, CHERYL               §
KING COOK, AND SAM Y.                    §
DORFMAN, JR.                             §
                                         §
       Plaintiffs,                       §
                                         §
v.                                       §   KARNES COUNTY, TEXAS
                                         §
JPMORGAN CHASE BANK, N.A.,               §
IN ITS INDIVIDUAL CAPACITY               §
AND AS TRUSTEE OF THE RED                §
CREST TRUST, PHILIP                      §
METTHAM, ORCAlICI                        §
DEVELOPMENT, ORCA                        §
PETROLEUM, LTD., ORCA                    §
ASSETS G.P. L.L.c., AND ALLEN            §
BERRY                                    §
                                         §
       Defendants.                       §   81 st JUDICIAL DISTRICT

        ORDER DENYING DEFENDANT JP MORGAN CHASE BANK, N.A.'S
                    MOTION TO TRANSFER VENUE

       On this day, the Court heard Defendant J.P. Morgan Chase Bank, N.A.'s Motion to

Transfer Venue. After reviewing the motion, the response, the evidence attached thereto, all

pleadings and evidence on file with the Court, and argument of counsel, the Court is of the

opinion that Defendant's Motion to Transfer Venue should be and is hereby DENIED.


                     FILED
              m THE OFFICE
        OF THE DISTRICT CLERK.

               OCT 2 7 20B
       AT /   () : o?~-~'ClOCK
        ROBBIE SHORTNER                                                               Page 1
71254KARNES COUNTY DISTRICf CLERK
Appendix Tab 2
* * *                                                                                        * * *

                                                  OPINION
                                            No.04-12-00006-CV

 IN RE J.P. MORGAN CHASE BANK, N.A., IN ITS INDIVIDUAL CAPACITY, AND AS
          TRUSTEE OF THE RED CREST TRUST, AND PHILIP METTHAM

                                      Original Mandamus Proceeding l

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: April 11,2012

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           In this original proceeding, relators J.P. Morgan Chase Bank, N.A., In Its Individual

Capacity, and as Trustee of the Red Crest Trust, and Philip Mettham, seek mandamus relief

directing the 81st Distric;t Court of Kames County to transfer venue to Tarrant County, Texas.

We conditionally grant mandamus relief.

                                              BACKGROUND

           This proceeding anses out of a suit filed by the Dorfmans 2 against Orca/ICI

Development, Orca Petroleum, Ltd., Orca Assets, G.P., L.L.C. (collectively "Orca"), J.P .



) This proceeding arises out of Cause No.  11-07-001 65-CVK, styled Louis Dorfman, et af. v. lP Morgan Chase
Bank, NA ., In Its Individual Capacity and As Trustee of the Red Crest Trust, et af., pending in the 8Ist Judicial
District Court, Kames County, Texas, the Honorable Donna Rayes presiding. However, the order complained of
was signed by the Honorable H. Paul Canales, visiting judge.
                                                                                                 04-12-00006-CV



    Morgan, as the sole trustee of the Red Crest Trust, and Philip Mettham (collectively "J.P.

 Morgan"). The suit involves a title dispute regarding the right to develop minerals in Karnes

    County. J.P. Morgan, as trustee of the trust, and Orca entered into a mineral lease effective

    October 5, 2010 (the "Red Crest Lease"). The Dorfmans claim a one-half mineral interest in part

 of the land the subject of the Red Crest Lease. The Dorfluans contend the deed J.P. Morgan

 relies on was declared void in 1944 by a Kames County court. The Dorfmans sued J.P. Morgan,

 Mettham, and Orca asserting the following claims: (1) suit to quiet title; (2) declaratory relief; (3)

 suit for slander of title; (4) fraud and fraudulent concealment; (5) tortious interference with

 prospective contractual relationships; (6) tortious interference with existing contractual

 relationships; (7) conspiracy to tortiously interfere with prospective contractual relationships;

 and (8) conspiracy to tortiously interfere with existing contractual relationships.

          In August of2011, J.P. Morgan and Mettham moved to transfer venue in accordance with

 section 115.002 of the Texas Property Code to Tarrant County, Texas because the suit is against

 a trustee and the trust is administered in Tarrant County. After a hearing on October 27,2011,

 the Honorable H. Paul Canales denied the motion to transfer venue. This petition for writ of

 mandamus ensued.

                              VENUE UNDER THE PROPERTY CODE

          J.P. Morgan contends the trial court erred in failing to transfer the suit from Kames

. County to Tarrant County. J.P. Morgan maintains that venue is mandatory in Tarrant County

based on the mandatory venue provisions found in section 115.002 of the Texas Property Code.

See TEX. PROP. CODE ANN. § 115.002 (West Supp. 2011). Section 115.002 provides that when

there is a corporate trustee, the venue of an action under section 115.001 of the Texas Property

2Relators collectively refer to the plaintiffs as "the Dorfmans," which include the following: Louis Dorfman, K.I.
Holdings, Ltd., Sam Myers, J.M.D. Resources, Inc., Billy Cogdell Bowden, Barbara Standfield, Stacey Dorfman-
Kivowitz, Julia Dorfman, Mark Dorfman, David Phillip Cook, Cheryl King Cook, and Sam Y. Dorfman, Jr.

                                                      -2-
                                                                                        04-12-00006-CV



Code "shall be brought in the county in which the situs of the 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,provided that an action against a corporate trustee as defendant may be brought in

the county in which the corporate trustee maintains its principal office in this state."             Id.

§ l1S .002(a), (c). Section 11S.00 1 lists the actions that fall under the alllbit of section 115.002 as

follows:

    (a) Except as provided by Subsection (d) of 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) appoint or remove a trustee;
                (4) determine the powers, responsibilities, duties, and
                    liability of a trustee;
                (S) 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 trustee 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-I) 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 (1)
      whether or not the proceeding is listed in Subsection (a).

Id. § IIS.001(a)-(a-I).

       J.P. Morgan contends that since the suit is against J.P. Morgan, as the sole trustee of the

trust, and it is undisputed that the trust was administered by J.P. Morgan from its offices in




                                                 -3-
                                                                                         04-12-00006-CV



Tarrant County during the past four years, venue is mandatory in Tarrant County.                See id.

§ 115.002(a), (c).

              VENUE UNDER THE CIVIL PRACTICE & REMEDIES CODE

        The Dorfmans and Orca contend venue is mandatory in Kames County, where the suit

was filed, in accordance with section 15.011 of the Texas Civil Practice and Remedies Code

because the suit is one that concerns an interest in land and is primarily a suit to quiet title to real

property. See TEX. CIv. PRAC. REM. CODE ANN. § 15.011 (West 2002). The Dorfmans and Orca

argue that since the Dorfmans joined two or more claims arising from the same transaction or

occurrence, and one of those claims is a claim to quiet title or other claim subject to the real

property mandatory venue provision, the suit must be brought in the county required by the

mandatory venue provision. See id. § 15.004 (providing that "[i]n a suit in which a plaintiff

properly joins two or more claims or causes of action. arising from the same transaction,

occurrence, or series of transactions or occurrences, and one of the claims or causes of action is

governed by the mandatory venue provisions of Subchapter B, the suit shall be brought in the

county required by the mandatory venue provision.").

                                           DISCUSSION

       We must determine whether section 15.011 of the Texas Civil Practice and Remedies

Code or section 115.002 of the Texas Property Code controls. Because section 115.002 of the

Texas Property Code originates from outside of Chapter 15 of the Texas Civil Practice and

Remedies Code, we look to section 15.016 of the 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." Id. § 15.016. "[1]f an action is governed by a

separate mandatory venue provision, then the action shall be brought in the county required by



                                                 -4-
                                                                                       04-12-00006-CV



the separate venue provision." In re Tex. Dep't ofTransp., 218 S.W.3d 74,76 (Tex. 2007) (orig.

proceeding). Section 115.002 of the Texas Property Code is such a mandatory venue provision.

Therefore, section 15.016 requires that the mandatory venue provisions in section 115.002 of the

Property Code prevail over section 15.011 of the Texas Civil Practice and Remedies Code. Id.

(concluding that based on section 15.016, the mandatory venue pro"ision in section lO1.102(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 (venue provision for actions against counties)); In

re Adan Volpe Props., 306 S.W.3d 369, 375 (Tex. App.-Corpus Christi 2010, orig. proceeding)

(concluding that based on section 15.016, the mandatory venue provision in section 65.023 of the

Texas Civil Practice and Remedies Code (venue provision for injunctions) prevails over the

mandatory venue provision in section 15.017 (venue provision for suits for libel, slander, or

invasion of privacy)); In re Dole Food Co., 256 S.W.3d 851, 856 (Tex. App.-Beaumont 2008,

orig. proceeding) (same).    Therefore, because section 115.002 of the Texas Property Code

prevails, we must now consider whether venue         IS   proper   III   Tarrant County based on the

provisions in sections 115.001 and 115.002.

       There is no dispute that J.P. Morgan is the sole corporate trustee of the trust and that

during the past four years the trust was administered in Tarrant County. See TEX. PROP. CODE

ANN. § 115.002. Instead, the Dorfmans and Orca argue the action does not fall within section

115.001 because the suit must "concern a trust" for section 115.001 to apply. See 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 fall within the ambit of section

115.001). Therefore, the Dorfmans and Orca contend that since the suit does not fall within

section 115.001, the venue provisions in section 115.002 are inapplicable.



                                               -5-
                                                                                       04-12-00006-CV



        However, we disagree with the Dorfmans and Orca's contention that the instant suit does

not fall within section 115 .001. In 2007, section 115.001 was amended 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. 148,

2005 Tex. Gen. Laws 296 (amended 2007) (current version at TEX. PROP. CODE ANN.

§ 115.001(a». The primary objective of statutory construction is to give effect to legislative

intent. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). In discerning that intent, we

begin with the '''plain and common meaning of the statute's words.'"           Id.   "If the statutory

language is unambiguous, we must interpret it according to its terms, giving meaning to the

language consistent with other provisions in the statute." Tex. Dep't of Transp. v. City of Sunset

Valley, 146 S.W.3d 637, 642 (Tex. 2004). Applying the plain language of the statute to the case

at hand, we conclude that since this is a proceeding against a trustee in accordance with section

115.001, the mandatory venue provisions in section 115.002 apply. Courts "must take statutes as

they find them." Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (1920). From the plain

wording of section 115.001, it applies to all proceedings by or against a trustee. See TEX. PROP.

CODE ANN. § 115.001(a).

       We acknowledge the recent case of In re JP. Morgan Chase Bank, NA., out of the

Corpus Christi Court of Appeals involving the same parties as those in the case at hand. No. 13-

11-00707-CV, 2011 WL 6098696, at *3 (Tex. App.-Corpus Christi, Dec. 5, 2011, orig.

proceeding). In that case, the court held that section 115.001 was inapplicable because the suit

did not involve an action relating to the trust itself or the operation of a trust. Id. We decline to

follow the Thirteenth Court of Appeals decision. While that court acknowledges that in 2007

section 115.001 was amended by adding subsection (a-I), which provides that the list of



                                                -6-
                                                                                       04-12-00006-CY



proceedings enumerated in the statute are not "exhaustive," the court does not acknowledge that

subsection (a) was also amended to include suits by or against a trustee. Id.           We find the

addition of that language controlling in this case; therefore, we respectfully disagree with the

court's conclusion that the suit must "concern a trust" in order for section 115.001 to apply.

        Finally, the Dorfmans briefly contend that because the litigation originates from the 1929

deed that was declared void by the 1944 Judgment in Kames County, the Kames County court

retained jurisdiction to enforce and interpret its judgments, orders, and decrees. See TEX. R. CIY.

PROC. 308. Rule 308 provides in part that " [t]he court shall cause its judgments and decrees to

be carried into execution." Id. However, this case involves numerous claims other than those

relating to the enforcement of a prior judgment. The Dorfmans provide no argument establishing

Kames County as the mandatory venue site when the underlying suit involves many more claims

than just claims that relate to enforcement of the 1944 judgment.

        We conclude mandamus relief is appropriate ,in this case. Chapter 15 authorizes parties

to seek mandamus relief to enforce its mandatory venue provisions. TEX. CIy. PRAC. REM. CODE

ANN. § 15.0642. Although section 115.002 of the Texas Property Code is found outside Chapter

15 of the Civil Practice and Remedies Code, it is still a mandatory venue provision for which

mandamus relief is available to enforce the provision. In re Transcon. Realty Investors, Inc., 271

S.W.3d 270, 271 (Tex. 2008) (orig. proceeding) (holding that section 21.013 of the Texas

Property Code is a mandatory venue statute and is enforceable by mandamus). "In seeking

mandamus under section 15.0642, a party need not prove the lack of an adequate appellate

remedy, but need only show that the trial court abused its discretion by failing to transfer the

case." In re Tex. Dep't oj Transp. , 218 S.W.3d at 76. Based on the foregoing, we conclude the

trial court abused its discretion by failing to transfer the case to Tarrant County.



                                                 -7-
                                                                                        04-12-00006-CV



                                         CONCLUSION

       Accordingly, we grant mandamus relief and order the trial court to transfer the suit to

Tarrant County, Texas . . The writ will issue only if we are notified the trial court has failed to

comply within fourteen days of this court's opinion.

                                                       Catherine Stone, Chief Justice




                                               -8-
* * *                                                                                                * *              *

                                                                    April 11, 2012

                                                                 No. 04-12-00006-CV

 IN RE J.P. MORGAN CHASE BANK, N.A., IN ITS INDIVIDUAL CAPACITY, AND AS
          TRUSTEE OF THE RED CREST TRUST, AND PHILIP METTHAM

                                                            Original Mandamus Proceeding l

                                                                       ORDER

       On January 5, 2012, relators J.P. Morgan Chase Bank, N.A. , In Its Individual Capacity,
and As Trustee of the Red Crest Trust, and Philip Mettham filed a petition for writ of mandamus.
The court has considered relators' petition, the responses and replies of the parties, and has
determined that relators are entitled to the relief requested. Accordingly, the petition for writ of
mandamus is CONDITIONALLY GRANTED. TEX. R. App. P. 52.8(c).

       The Honorable H. Paul Canales is ORDERED to transfer the suit to Tarrant County,
Texas. The writ will issue only if we are notified that Judge Canales has not done so within
fourteen days of the date of this order.

             It is so ORDERED on April 11,2012.




             IN WITNESS WHEREOF, I have hereunto set my hand a d affixed the seal of the said
court 0~~
        ,' ~'9!~~~~{ April, 2012.
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1 This proceeding arises out of Cause No. 11-07-00165-CVK, styled Louis Dorfman, et al. v. JP Morgan Chase
Bank, N.A., In Its Individual Capacity and As Trustee of the Red Crest Trust, et aI., pending in the 81 st Judicial
District Court, Kames County, Texas, the Honorable Donna Rayes presiding. However, the order complained of
was signed by the Honorable H. Paul Canales, visiting judge.
Appendix Tab 3
§ 15.003                                                                T RI A L JU DG E ME N T AN D A P P E A L
Note 11                                                                                                                              Title 2
S.W.3d 57, appeal decided, withdrawn and su-                            review the pleadings and affidavits, but consid-
perseded 999 S.W.2d 908, review granted, af-                            ers the entire record, including any evidence
firmed 38 S.W.3d 92, as modified.                                       presented at the hearing. Teen-Westinghouse
  Upon review of a joinder determination, the                           Motor Co. v. Gonzalez (App. 13 Dist. 2001) 54
Court of Appeals is not constrained solely to                           S.W.3d 910.


§ 15.004.              M a n d a t o r y V e n u e P r o v is i o n s G o v e r n s M u l t i p l e C l a i ms
  In a suit in which a plaintiff properly joins two or more claims or causes of
action arising from the same transaction, o ccurrence, or series of transactions or
occurrences, and one of the claims or causes of action is governed by the
mandatory venue provisions of Subchapter B,' the suit shall be brought in the
county required by the mandatory venue provision.
Added by Acts 1995, 74th Leg., ch. 138, § I , ell. Aug. 28, 1995.

   V.T.C.A., Civil Practice & Remedies Code § 15.011 et seq.


                                              Historical and Statutory Notes
  Section 11 of the 1995 Act provides:                                     " ( b ) V en u e u n d e r S e c t i o n 1 5 .0 1 8 , Civ i l P r a c-
                                                                        ti c e and R e me di es Cod e, as add ed b y th is A ct,
   " ( a) Ex c ep t as p r o v i d ed b y S u b s e ct io n ( b ) o f   appli e s onl y to a s uit co mme n c ed on or after
thi s s e ct ion, this Act appl i es onl y to a sui t co m-             J anu ar y I, 1996. Venu e und er th at s e ction for
me n ced on or aft er S ep t emb er I , 1995 . A su it                  sui t co mme n c ed b efor e J anuar y I , 1996 , is
co mme n c ed b efor e S ept emb er I , 1995 , is gov-                  gov ern ed b y the l a w appli c ab le t o th e suit i m-
ern ed b y the l aw appli c abl e to th e su it i mmed i-               med i at el y b efore th e eff e ctiv e d at e of this Act,
at el y b efor e the eff e ctiv e d at e of thi s Act , and             and th at l a w is continu ed in eff e ct for th at
th at l a w is continu ed in eff e ct for th at purpos e.               purpos e.''

                                                        Library References
  Venue 016.5.
  Westlaw Topic No. 401.
  C.J.S. Venue § 68.



§ 15.005.               M u l t i p l e D ef e n d a n t s
  In a suit i n which th e plaintiff has e stabli shed proper venue a gain st a
defendant, th e court also has venu e of all th e defe ndants.in all clai ms or ac tion s
arising out of the sa me transactio n, occurrence, or series o f transaction s or
occurrence s.
Added by Acts 1995, 74th Leg., ch. 138, § I , elf. Aug. 28, 1995.

                                               Historical and Statutory Notes
   Section 11 of the 1995 Act provides:                                 Janutuy I, 1996. Venue under that section for a
   " ( a) Ex cept as prov id ed b y Subs ect ion (b) of                 suit commenced before January 1, 1996, is
thi s s e ction , this Act appl i es onl y to a suit co m-              governed by the law applicable to the suit im-
me n c e d o n o r aft er S ep t e mb er 1 , 1 9 9 5 . A s u i t        mediately before the effective date of this Act,
c o mme n c ed b ef o r e S ep t e mb er I , 1 9 9 5 , i s g o v -      and that law is continued in effect for that
e rn ed b y th e l aw app li c abl e to th e suit i mme d i-            purpose."
at el y b efor e th e ef f e ctiv e d at e of this Act , and
th at l a w is continu ed in eff e ct for th at purpos e.               Prior Laws:
   " ( b ) Venu e und er S ection 15 .018, Civil Pr ac-                   Acts 1863, p. 10.
ti c e and R e me di es Cod e , as add ed b y thi s A c t,                P.D. 1423.
appli e s on l y to a suit co mme n ced on o r af t er                    Rev.Civ.St. I 879, art. 1198.
                                                                    134
Appendix Tab 4
VENUE                                                                                         § 15.011
Ch. 15
effect of a nonsuit depends upon the effect given        cy or representative or its principal office in
the venue facts alleged in the parties' pleadings by     county, was not sufficient to shift burden to
the applicable rules of procedure. Peysen v.             plaintiff to make prima facie proof of her pleaded
Dawson (App. 4 Dist. 1998) 974 S.W.2d 377.               venue facts. Peysen v. Dawson (App. 4 Dist.
                                                         1998) 974 S.W.2d 377.
2. Pleadings
  Defendant's properly pleaded venue fact is             3. Review
established as true if the plaintiff fails to specifi-
cally deny the pleaded fact before nonsuiting and          Whether a nonsuit fixes venue in the county in
refiling her case in another court. Peysen v.            which the nonsuited case was filed is a question
Dawson (App. 4 Dist. 1998) 974 S.W.2d 377.               of law that is reviewed de novo. Peysen v.
                                                         Dawson (App. 4 Dist. 1998) 974 S.W.2d 377.
  Defendants' denial that venue in personal in-
jury action was proper, without specific denial of         On review of venue transfer order, appellate
plaintiff's allegations that one defendant was           court reviews the entire record to determine
foreign corporation, joint stock company, or             whether there is any probative evidence that
association not incorporated by laws of this state       venue was proper in the county of suit. Peysen v.
and doing business in state, with an agen-               Dawson (App. 4 Dist. 1998) 974 S.W.2d 377.


§ 15.007. Conflict With Certain Provisions
  Notwithstanding Sections 15.004, 15.005, and 15.031, to the extent that venue
under this chapter for a suit by or against an executor, administrator, or guardian
as such, for personal injury, death, or property damage conflicts with venue
provisions under the Texas Probate Code, this chapter controls.
Added by Acts 1995, 74th Leg., ch. 138, § 1, eff. Aug. 28, 1995.

                                   Historical and Statutory Notes
  Section 11 of the 1995 Act provides:                "(b) Venue under Section 15.018, Civil Prac-
                                                   tice and Remedies Code, as added by this Act,
  "(a) Except as provided by Subsection (b) of applies only to a suit commenced on or after
this section, this Act applies only to a suit com- January 1, 1996. Venue under that section for a
menced on or after September 1, 1995. A suit suit commenced before January 1, 1996, is
commenced before September 1, 1995, is gov- governed by the law applicable to the suit im-
erned by the law applicable to the suit immedi- mediately before the effective date of this Act,
ately before the effective date 'of this Act, and and that law is continued in effect for that
that law is continued in effect for that purpose.  purpose."


                       [Sections 15.008 to 15.010 reserved for expansion]


                         SUBCHAPTER B. MANDATORY VENUE

                                             Cross References
Burden of establishing venue when determining motion to transfer, see Vernon's Ann.Rules Civ.Proc.,
      Rule 87.

§ 15.011. Land
Actions for recovery of real property or an estate or interest in real property,
 for partition of real property, to remove encumbrances from the title to real
   property, for recovery of damages to real property, or to quiet title to real
                                                                            137
§ 15.011                                                             TRIAL JUDGEMENT AND APPEAL
                                                                                               Title 2
property shall be brought in the county in which all or a part of the property is
located.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1995, 74th Leg., ch. 138, §
2, eff. Aug. 28, 1995.

                                           Historical and Statutory Notes
  The 1995 amendment inserted "for recovery of                           Rev.Civ.St.1879, art. 1198.
damages to real property,".                                              G.L. vol. 5, p. 664.
  Section 11 of the 1995 Act provides:                                   G.L. vol. 9, p. 1075.
                                                                         Acts 1889, p. 89.
  "(a) Except as provided by Subsection (b) of                           Rev.Civ.St.1895, art. 1194.
this section, this Act applies only to a suit com-                       Rev.Civ.St.1911, art. 1830.
menced on or after September 1, 1995. A suit                             Acts 1913, 33rd Leg., p. 424.
commenced before September 1, 1995, is gov-                              Acts 1919, 36th Leg., p. 138, ch. 93.
erned by the law applicable to the suit immedi-                          Acts 1927, 40th Leg., 1st C.S., p. 197, ch. 72, §§ 1,
ately before the effective date of this Act, and                           2.
that law is continued in effect for that purpose.                        Acts 1931, 42nd Leg., p. 251, ch. 150, § 1.
  "(b) Venue under Section 15.018, Civil Prac-                           Acts 1935, 44th Leg., p. 503, ch. 213, § 1.
tice and Remedies Code, as added by this Act,                            Acts 1943, 48th Leg., p. 350, ch. 228, § 1.
applies only to a suit commenced on or after                             Acts 1947, 50th Leg., p. 104, ch. 71, § 1. Acts
January 1, 1996. Venue under that section for a                          1947, 50th Leg., p. 739, ch. 366, § 1. Acts
suit commenced before January 1, 1996, is                                1953, 53rd Leg., p. 390, ch. 107, §§ I, 2. Acts
governed by the law applicable to the suit im-                           1955, 54th Leg., p. 1031, ch. 388, § 1. Acts
mediately before the effective date of this Act,                         1967, 60th Leg., p. 951, ch. 419, § 1. Acts
and that law is continued in effect for that                             1969, 61st Leg., p. 2009, ch. 687, § 1. Acts
purpose."                                                                1969, 61st Leg., p. 2606, ch. 864, § 1. Acts
                                                                         1973, 63rd Leg., p. 489, ch. 213, §§ 1, 2. Acts
Prior Laws:                                                              1977, 65th Leg., p. 856, ch. 322, § 1. Acts
  Acts 1863, p. 10.                                                      1983, 68th Leg., p. 2119, ch. 385, § 1.
  P.D. 1423.                                                             Vernon's Ann.Civ.St. art. 1995, § 2(a).

                                                 American Law Reports
 Venue of damage action for breach of real-
   estate sales contract, 8 ALR3d 489.

                                    Law Review and Journal Commentaries
 Mandatory venue under Section 15.011 of the aries and Procedures. A. Darby Dickerson and
Texas Civil Practice an Remedies Code: Bound- Stacy E. Jordan, 54 Tex.B.J. 162 (1991).

                                                     Library References
 Deed of partition , see Elliott & Leopold, 13                              §§233:133, 233:142; 12 Texas PI & Pr
   Texas Forms § 8.69.                                                      Forms, Venue §§234:31-234:34; 12 Texas P1
 Venue, see Elliott, 11 Texas Practice § 12.16                              & Pr Forms, Waste § 236:2.
   (2d ed.).
 Partition +43.                                                     Texts and Treatises
 Quieting Title C=:.28.
 Trespass to Try Title                                                    3 Texas Jur 3d, Agency § 209; 8 Texas Jur 3d,
 Venue C=>5.                                                                Auto §§417-419; 11 Texas Jur 3d, Carriers §
 Westlaw Topic Nos. 288, 318, 387, 401.                                     287; 17 Texas Jur 3d, Cred R § 251; 18
 C.J.S. Partition § 68.                                                     Texas Jur 3d, Crim L § 46; 29 Texas Jur 3d,
 C.J.S. Quieting Title § 47.                                                Dec Est §§107, 858; 40 Texas Jur 3d, Fam L
 C.J.S. Trespass to Try Title § 30.                                         §§169, 227, 381; 40 Texas Jur 3d, Fam L §
 C.J.S. Venue §§ 24 to 26, 37.                                              1167; 55 Texas Jur 3d, Oil & G §§35, 238,
 Tex.Prac., Civil Pre-Trial Procedure, Ch. 16.                              243, 270, 307; 61 Texas Jur 3d, Quiet T § 1;
 II Texas PI & Pr Forms, Quieting Title and                                 63 Texas Jur 3d, Real Est Sales § 429; 64
   D e t e r m i n i n g A d v e r s e C l a im s § § 2 0 9 : 4,            Texas Jur 3d, Receiv § 179; 72 Texas Jur
   209:11; 12 Texas PI & Pr Forms, Trusts                                   3d, Ven §§9-11, 29, 40,
                                                                   138
Appendix Tab 5
§ 15.061                                                       TRIAL JUDGEMENT AND APPEAL
Repealed                                                                             Title 2
§ 15.061. Repealed by Acts 1995, 74th Leg., ch. 138, § 10, eff.                              Aug. 28,
                     1995

                                    Historical and Statutory Notes
  The repealed section, relating to        joinder of        Acts 1973, 63rd Leg., p. 489, ch. 213, §§ 1,
defendants or claims, was derived from:                         2.
                                                            Acts 1977, 65th Leg., p. 856, ch. 322, § 1.
    Acts 1863, p. 10.
                                                            Acts 1983, 68th Leg., p. 2119, ch. 385, § 1.
    P.D. 1423.
                                                            Vernon's Ann.Civ.St. art. 1995, § 4(a). Acts
    Rev.Civ.St.1879, art.      1198.                        1985, 69th Leg., ch. 959, § 1.
    G.L. vol. 5, p. 664. G.L.
                                                             Section 11 of the 1995 repealing Act provides:
    vol. 9, p. 1075. Acts
    1889, p. 89.                                           "(a) Except as provided by Subsection (b) of
    Rev.Civ.St.1895, art.      1194.                     this section, this Act applies only to a suit com-
    Rev. Civ. St.1911, art. 1830.                        menced on or after September 1, 1995. A suit
    Acts 1913, 33rd Leg.,      p. 424.                   commenced before September 1, 1995, is gov-
    Acts 1919, 36th Leg.,      p. 138, ch. 93.           erned by the law applicable to the suit immedi-
    Acts 1927, 40th Leg.       , 1st C.S., p. 197, ch.   ately before the effective date of this Act, and
      72, §§ 1, 2.                                       that law is continued in effect for that purpose.
    Acts 1931, 42nd Leg., p. 251, ch. 150, § 1.            "(b) Venue under Section 15.018, Civil Prac-
    Acts 1935, 44th Leg., p. 503, ch. 213, § 1.          tice and Remedies Code, as added by this Act,
    Acts 1943, 48th Leg., p. 350, ch. 228, § 1.          applies only to a suit commenced on or after
    Acts 1947, 50th Leg., p. 104, ch. 71, § 1.           January 1, 1996. Venue under that section for a
    Acts 1947, 50th Leg., p. 739, ch. 366, § 1.          suit commenced before January 1, 1996, is
    Acts 1953, 53rd Leg.      , p. 390, ch. 107, §§ I,   governed by the law applicable to the suit im-
        2.                                               mediately before the effective date of this Act,
     Acts 1955, 54th Leg., p. 1031, ch. 388, § 1.        and that law is continued in effect for that
     Acts 1967, 60th Leg., p. 951, ch. 419, § 1.         purpose."
     Acts 1969, 61st Leg., p. 2009, ch. 687, § 1.          See, now, V.T.C.A., Civil Practice & Remedies Code
     Acts 1969, 61st Leg., p. 2606, ch. 864, § 1.        § 15.005.


§ 15.062. Counterclaims, Cross Claims, and Third-Party Claims
  (a) Venue of the main action shall establish venue of a counterclaim, cross
claim, or third-party claim properly joined under the Texas Rules of Civil
Procedure or any applicable statute.
   (b) If an original defendant properly joins a third-party defendant, venue shall
be proper for a claim arising out of the same transaction, occurrence, or series of
transactions or occurrences by the plaintiff against the third-party defendant if
the claim arises out of the subject matter of the plaintiff's claim against the
original defendant.
Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1995, 74th Leg., ch. 138, §
4, eff. Aug. 28, 1995.

                                    Historical and Statutory Notes
  The 1995 amendment designated subsec. (a),             ately before the effective date of this Act, and
and therein added "or any applicable statute";           that law is continued in effect for that purpose.
and added subsec. (b).
                                                           "(b) Venue under Section 15.018, Civil Prac-
  Section 11 of the 1995 Act provides:                   tice and Remedies Code, as added by this Act,
  "(a) Except as provided by Subsection (b) of           applies only to a suit commenced on or after
this section, this Act applies only to a suit com-       January 1, 1996. Venue under that section for a
menced on or after September 1, 1995. A suit             suit commenced before January 1, 1996, is
commenced before September 1, 1995, is gov-              governed by the law applicable to the suit im-
erned by the law applicable to the suit immedi           mediately before the effective date of this Act,
                                                    298
Appendix Tab 6
                 CHAPTER 115. JURISDICTION, VENUE,
                       AND PROCEEDINGS
                   SUBCHAPTER A. JURISDICTION AND VENUE
Section
115.001. Jurisdiction.
115.002. Venue.
                 [Sections 115.003 to 115.010 reserved for expansion]
           SUBCHAPTER B. PARTIES, PROCEDURE, AND JUDGMENTS
115.011. Parties.
115.012. Rules of Procedure.
115.013. Pleadings and Judgments.
115.014. Guardian Ad Litem.
115.015. Notice to Beneficiaries of Tort or Contract Proceeding.
115.016. Notice.
115.017. Waiver of Notice.


                SUBCHAPTER A. JURISDICTION AND VENUE

§ 115.001. Jurisdiction
  (a) Except as provided by Subsection (d) of this section, a district court has
original and exclusive jurisdiction over 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;
     (7) determine a question arising in the administration or distribution of a
  trust;
     (8) relieve a trustee from any or all of the duties, limitations, and restric-
  tions 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.
  (b) The district court may exercise the powers of a court of equity in matters
pertaining to trusts.
                                       101
§ 115.001                                                                                         TRUSTS
                                                                                                    Title 9
  (c) The court may intervene in the administration of a trust to the extent that
the court's jurisdiction is invoked by an interested person or as otherwise
provided by law. A trust is not subject to continuing judicial supervision unless
the court orders continuing judicial supervision.
  (d) The jurisdiction of the district court over proceedings concerning trusts is
exclusive except for jurisdiction conferred by law on a statutory probate court, a
court that creates a trust under Section 867, Texas Probate Code, or a court that
creates a trust under Section 142.005.
Amended by Acts 1983, 68th Leg., p. 3332, ch. 567, art. 2, § 2, eff. Jan. 1, 1984; Acts
1997, 75th Leg., ch. 1375, § 5, eff. Sept. 1, 1997; Acts 2005, 79th Leg., ch. 148, § 22,
eff. Jan. 1, 2006.

                                    Historical and Statutory. Notes
  Acts 1997, 75th Leg., ch. 1375, in subsec. (d),          Section 31 of Acts 2005, 79th Leg., ch. 148
inserted "or a court that creates a trust under          provides:
Section 867, Texas Probate Code".                          "(a) Except as otherwise provided by a will,
  Section 8 of Acts 1997, 75th Leg., ch. 1375            the terms of a trust, or this Act, the changes in
provides:                                                law made by this Act apply to:
  "This Act takes effect September 1, 1997, and            "(1) a trust existing or created on or after January
applies to all trusts created under Section 867,         1, 2006;
Texas Probate Code, as amended by this Act,                "(2) the estate of a decedent who dies before
regardless of the date on which the trusts were          January 1, 2006, if the probate or administra-
created."                                                tion of the estate is pending on or after January
  Acts 2005, 79th Leg., ch. 148 rewrote subsec.          1, 2006; and
(c); at the end of subsec. (d) added ", or a court         "(3) the estate of a decedent who dies on or after
that creates a trust under Section 142.005"; and         January 1, 2006."
made other nonsubstantive changes. Prior
thereto subsec. (c) read:                                Prior Laws:
  "(c) Unless specifically directed by a written order     Acts 1943, 48th Leg., p. 232, ch. 148, § 24.
of the court, a proceeding does not result in              Vernon's Ann.Civ.St. art. 7425b-24.
continuing supervision by the court over the               Acts 1983, 68th Leg., p. 3687, ch. 576, § 1.
administration of the trust."                              V.T.C.A., Property Code § 115.001.

                                             Cross References
Parties to action under this section, see V.T. C.A., Property Code § 115.011.

                              Law Review and Journal Commentaries
  Community property and the law of trusts.                Planning estate to avoid guardianships; ad-
Harvie Branscomb, Jr. and G. Ray Miller, Jr.,            vantages of trusts. Richard T. Davis, Jr., 47
20 Sw.L.J. 699 (1966).                                   Tex.L.Rev. 1146 (1969).

                                          Library References
  Trusts c=158, 254, 298, 363.                             C.J.S. Trusts §§ 291, 295 to 296, 555, 564 to 565,
  Westlaw Topic No. 390.                                     712 to 718.

                                          Research References
ALR Library                                              Encyclopedias
                                                         TX Jur. 3d Decedents' Estates § 526, Generally; Who
  15 ALR 2nd 610, Jurisdiction of Suit Involv-           May Object.
    ing Trust as Affected by Location of Res,            TX Jur. 3d Decedents' Estates § 801, Subject-Matter
    Residence of Parties to . Trust, Service, and        Jurisdiction.
    Appearance.                                          TX Jur. 3d Trusts § 51, Removal.
                                                     102
JURISDICTION, VENUE, PROCEEDINGS                                                      § 115.002
Ch. 115
v. George Staton Co., Inc. (App. 12 Dist. 1995)     general appearance that invoked jurisdiction of
908 S.W.2d 468, writ denied. Appearance C=          court and cured any alleged defect in parties, and
9(1)                                                thus, probate court's judgment ordering that
                                                    beneficiary take nothing was valid against
                                                    beneficiary as successor trustee; beneficiary's
                                                    general appearance waived service on him in his
                                                    capacity as trustee of trust, and beneficiary
9. Jurisdiction                                     participated in proceedings both in his individual
  District court had authority, pursuant to local   capacity and in his capacity as trustee. Dolenz v.
rule of administration, to transfer tort claims     Vail (App. 5 Dist. 2004) 143 S.W.3d 515,
asserted by son of decedent's husband to county     rehearing overruled, review denied, certiorari
court at law, which had jurisdiction over such      denied 125 S.Ct. 2910, 545 U.S. 1118, 162
claims against charitable trust established by      L.Ed.2d 301. Executors And Administrators c=
decedent and its officers and trustees; tort        244
claims did not fall under statute granting dis-
trict court exclusive jurisdiction over all pro-       Probate court had subject matter jurisdiction
ceedings concerning trusts or statute governing     to hear trust matter; at time beneficiary of inter
jurisdiction of actions involving a charitable      vivos trust brought claim against estate alleging
trust. In re Stark (App. 9 Dist. 2004) 126          that he had legal right to paintings and personal
S.W.3d 635, mandamus denied. Courts e=              property that were part of trust, and when judg-
472.4(7); Courts '(z. 484                           ment finding valid trust but ordering beneficiary
  Claims for royalty payments by plaintiffs         to take nothing was signed, probate court had
joined in probate court action did not "concern     concurrent jurisdiction with district court in all
trusts " as required for probate court to assert    actions involving inter vivos trust, trust that was
subject matter jurisdiction in plaintiffs' action   subject of appeal was an inter vivos trust, and
against energy companies; mineral leases was        thus, probate court had jurisdiction over benefi-
not an enumerated cause of action in statute        ciary's action involving disposition of trust as-
governing claims within probate court's juris-      sets in trust, and judgment was not void. Dolenz
diction. Mobil Oil Corp. v. Shores (App. 2 Dist.    v. Vail (App. 5 Dist. 2004) 143 S.W.3d 515,
2004) 128 S.W.3d 718. Trusts «254                   rehearing overruled, review denied, certiorari
                                                    denied 125 S.Ct. 2910, 545 U.S. 1118, 162
  Appearance of beneficiary of inter vivos trust,
who brought claim against estate alleging that      L.Ed.2d 301. Trusts C= 363
he had legal right to paintings and personal
property that were part of trust, before probate
court as successor trustee of trust constituted


§ 115.002.        Venue '
   (a) The venue of an action under Section 115.001 of this Act is determined
according to this section.
   (b) If there is a single, noncorporate trustee, an action 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.
   (c) If there are multiple trustees or a corporate trustee, an action shall be
brought in the county in which 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, provided that an action against a corporate
trustee as defendant may be brought in the county in which the corporate trustee
maintains its principal office in this state.
   (d) For just and reasonable cause, including the location of the records and
the convenience of the parties and witnesses, the court may transfer an action
from a county of proper venue under this section to another county of proper

                                                  105
venue:
§ 115.002                                                                                 TRUSTS
                                                                                             Title 9
    (1) on motion of a defendant or joined party, filed concurrently with or before
  the filing of the answer or other initial responsive pleading, and served in
  accordance with law; or
    (2) on motion of an intervening party, filed not later than the 20th day after
  the court signs the order allowing the intervention, and served in accordance
  with law.
  (e) Notwithstanding any other provision of this section, on agreement by all
parties the court may transfer an action from a county of proper venue under this
section to any other county.
  (f) For the purposes of this section:
    (1) "Corporate trustee" means an entity organized as a financial institution or a
  corporation with the authority to act in a fiduciary capacity.
    (2) "Principal office" means an office of a corporate trustee in this state
  where the decision makers for the corporate trustee within this state conduct
  the daily affairs of the corporate trustee. The mere presence of an agent or
  representative of the corporate trustee does not establish a principal office. The
  principal office of the corporate trustee may also be but is not necessarily the
  same as the situs of administration of the trust.
    (3) "Situs of administration" means the location in this state where the
  trustee maintains the office that is primarily responsible for dealing with the
  settlor and beneficiaries of the trust. The situs of administration may also be
  but is not necessarily the same as the principal office of a corporate trustee.
Amended by Acts 1983, 68th Leg., p. 3332, ch. 567, art. 2, § 2, eff. Jan. 1, 1984; Acts
1999, 76th Leg., ch. 344, § 4.026, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 933, § 1, eff.
Sept. 1, 1999.

                                 Historical and Statutory Notes
  Acts 1999, 76th Leg., ch. 344 and Acts 1999,       county in which the principal office of any of the
76th Leg., ch. 933 identically rewrote subsecs.      corporations is located.
(b), (c) and (d); and added subsecs. (e) and (1).
                                                     "(d) If there are two or more trustees, none of
Prior to amendment subsecs. (b), (c) and (d)
                                                       which is a corporation, venue is in the county
read:
                                                       in which the principal office of the trust is
  "(b) If there is a single, noncorporate trustee,     maintained."
venue is in the county in which the trustee's
residence is located.                                Prior Laws:
  "(c) If any trustee is a corporation, venue is       Acts 1943, 48th Leg., p. 232, ch. 148, § 24.
in the county in which the corporation's princi-       Vernon's Ann.Civ.St. art. 7425b-24.
pal office is located, or, if two or more corpora-     Acts 1983, 68th Leg., p. 3688, ch. 576, § 1.
tions are trustees of the trust, venue is in the       V.T.C.A., Property Code § 115.002.

                                        Library References
 Trusts c=:364.
 Westlaw Topic No. 390.
 C.J.S. Trusts § 719.



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