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In re Benge

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

February 27, 2018

IN RE DEBRA V. BENGE

         On Petition for Writ of Mandamus.

          Before Chief Justice Valdez and Justices Contreras and Hinojosa.

          MEMORANDUM OPINION

          LETICIA HINOJOSA Justice. [1]

         Relator Debra V. Benge filed a petition for writ of mandamus seeking to set aside (1) a July 5, 2017 order granting the plea to the jurisdiction filed by Harold Joe Adams and Harold Joe Adams, Jr. LLC, and (2) a July 11, 2017 order granting the plea to the jurisdiction filed by Thomas Ranches Oil and Gas Joint Venture d/b/a O&G Rocks. By three issues, relator contends that the trial court abused its discretion by granting these pleas to the jurisdiction thereby dismissing relator's (1) derivative breach of fiduciary claims brought on behalf of an executor of a trust and a trustee of a trust, (2) claims against third parties who knowingly participated in breaches of fiduciary duty, and (3) relator's claims for exemplary damages. By a fourth issue, relator asserts that she lacks an adequate remedy by appeal for these alleged abuses of discretion. This Court requested and received responses to the petition for writ of mandamus from: Harold Joe Adams and Harold Joe Adams Inc.; Margaret A. Thomas, individually, as independent executor of the estate of Anne Friar Thomas, and as trustee of the Thomas Family 2012 Trust; and Thomas Ranches Oil & Gas Joint Venture d/b/a O&G Rocks. Relator has further filed a reply in support of her petition for writ of mandamus.

         Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). Mandamus relief is proper to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Christus Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). The relator bears the burden of proving both of these requirements. In re H.E.B. Grocery Co., 492 S.W.3d at 302; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). An abuse of discretion occurs when the trial court's ruling is arbitrary and unreasonable or is made without regard for guiding legal principles or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding).

         The Court, having examined and fully considered the petition for writ of mandamus, the responses, the reply, and the applicable law, is of the opinion that the relator has not established her right to the extraordinary relief sought. Based on the record and briefing presented here, relator has not shown that the trial court abused its discretion in dismissing relator's derivative claims. See generally Davis v. First Nat'l Bank of Waco, 161 S.W.2d 467, 472 (Tex. 1942) ("An expectant heir has no present interest or right in property that he may subsequently inherit and consequently he cannot maintain a suit for the enforcement or adjudication of a right in the property."); In re XTO Energy, Inc., 471 S.W.3d 126, 137 (Tex. App.-Dallas 2015, orig. proceeding) (stating that "we have found no Texas case authority allowing a trust beneficiary to sue a trustee derivatively on behalf of a trust"); Moon v. Lesikar, 230 S.W.3d 800, 802-06 (Tex. App.-Houston [14th Dist.] 2007, pet. denied) (affirming trial court's ruling that plaintiff, who was "contingent beneficiary" of family trust "lacked standing to complain about the [trust's sale of stock] because she had no interest in it at the time of the sale"); Davis v. Davis, 734 S.W.2d 707, 709-10 (Tex. App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.) (concluding that appellant "did not have standing to sue based on his claim that he is a potential beneficiary of trust assets" and explaining that "[o]ne cannot maintain a suit for the enforcement or adjudication of a right in property that he expects to inherit, because he has no present right or interest in the property"). Further, assuming without deciding that the trial court abused its discretion with regard to the dismissal of relator's remaining claims, we conclude that relator has not established that she lacks an adequate remedy by appeal. See In re Essex Ins. Co., 450 S.W.3d at 528; In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. Accordingly, we lift the stay that we previously imposed in this case. See Tex. R. App. P. 52.10(b) ("Unless vacated or modified, an order granting temporary relief is effective until the case is finally decided."). We deny the petition for writ of mandamus.

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Notes:

[1] See Tex. R. App. P. 52.8(d) ("When granting relief, the court must hand down an opinion as in any other case, " but when "denying relief, the court may hand down an opinion but is not required to do so."); Tex.R.App.P. 47.4 (distinguishing ...


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