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In re Wheeler

Court of Appeals of Texas, Tenth District, Waco

January 30, 2014

IN RE MAE DEAN WHEELER INDIVIDUALLY AND AS SUCCESSOR TRUSTEE OF THE WHEELER FAMILY TRUST

For Appellant/Relator: Bryan F. Russ III, Palmos Russ McCullough & Russ LLP, Franklin, TX; Scott J. Scherr, Payne Malechek & Scherr Campbell & Moore, PC, Bryan, TX.

For Appellee/Respondent: C. Alfred Mackenzie, Attorney at Law, Waco, TX; Charles D. Olson, Haley & Olson PC, Waco, TX; Charles E. Fitch, Attorney at Law, Houston, TX.

Before Gray Chief Justice, Davis Justice, and Scoggins Justice.

OPINION

AL SCOGGINS Justice.

Page 431

Original Proceeding

In this mandamus proceeding, we are asked to determine whether the respondent, Judge Robert Stem of the 82nd Judicial District Court, abused his discretion by failing to transfer venue to Harris County, Texas--the county where the underlying trust was administered. For the reasons stated herein, we conditionally grant relator's petition for writ of mandamus.

Page 432

I. Background

It is undisputed that real party in interest, Circle X Camp Cooley, Ltd. (" Circle X" ), and relator, Mae Dean Wheeler, entered into a " Purchase and Sale Agreement," under which relator agreed to sell to Circle X certain property interests, including mineral interests, located in Robertson County, Texas. In June 2013, Circle X filed suit, seeking to enforce the " Purchase and Sale Agreement." [1] In its petition, Circle X asserted that relator refused to comply with the terms of the parties' agreement.

In response to the petition filed by Circle X, relator moved to transfer venue to Harris County, under section 115.002 of the Texas Property Code. See Tex. Prop. Code Ann. § 115.002 (West Supp. 2013). Relator argued that venue is mandatory in Harris County because that is the county where the Wheeler Family Trust (" Trust" ) was administered during the four years preceding the filing of the lawsuit and because that is the county of residence for relator as Trustee.

Circle X filed a response to relator's motion to transfer venue, wherein Circle X asserted that venue is mandatory in Robertson County, pursuant to section 15.011 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 15.011 (West 2002). Specifically, Circle X contended that venue is mandatory in Robertson County because that is where the " subject/basis of this suit is located and situated . . . ." Circle X also argued that: (1) the basis of its suit does not concern a trust; (2) its cause of action against relator " is for specific performance related to Defendant's breach of the contract entered into between the parties" ; and (3) its choice of venue should not be disturbed, even if venue is proper in more than one county.

On October 28, 2013, the trial court conducted a hearing on the venue issue. At the conclusion of the hearing, the trial court signed an order denying relator's motion to transfer venue. As a result, the case was ordered to remain in Robertson County.

Thereafter, on November 14, 2013, relator filed her petition for writ of mandamus in this Court, seeking review of the trial court's order denying her motion to transfer venue. We stayed the proceedings in the trial court and requested a response fro real party in interest, which was filed on December 11, 2013.

II. Standard of Review

Ordinarily, mandamus relief lies when the trial court has abused its discretion and a party has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion if it reaches a decision that is so arbitrary and unreasonable as to amount to a clear and prejudicial error or law, or if it clearly fails to correctly analyze or apply the law. See In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). In determining whether an appeal is an adequate ...


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