In Parker v. Filip, a trust owned a limited partnership interest and the partnership owned real property in Fayette County, Texas. No. 14-23-00372-CV, 2023 Tex. App. LEXIS 6976 (Tex. App.—Houston [14th Dist.] August 31, 2023, no pet. history). Several limited partners sued the general partner and other limited partners, including the trustee of the trust, regarding the operation of the partnership in Fort Bend County, Texas, where the defendants resided. The defendants filed a motion to transfer venue to Fayette County, Texas, due to the real estate existing there. The trial court denied the motion, and the defendants appealed.

The court of appeals discussed the competing venue statutes:

 Section 15.011 of the Civil Practice and Remedies Code provides that:

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 part of the property is located.

Tex. Civ. Prac. & Rem. Code § 15.011.

In its relevant parts, section 115.002 of the Property Code provides that:

The venue of an action under Section 115.001 of this Act is determined according to this section. If there is a single, noncorporate trustee, an action shall be brought in the county in which the trustee resides or has resided at any time during the four-year period preceding the date the action is filed.

Tex. Prop. Code § 115.002.

Section 115.002 of the Property Code is a separate statute from the Civil Practice and Remedies Code. Thus, we look to section 15.016 of the Civil Practice and Remedies Code for guidance because it provides that “[a]n action governed by any other statute prescribing mandatory venue shall be brought in the county required by that statute.” “[I]f an action is governed by a separate mandatory venue provision, then the action shall be brought in the county required by the separate venue provision.”

As shown above in the analysis of proper pleading, this action is governed by a separate mandatory venue provision. Therefore, section 15.016 of the Civil Practice and Remedies Code requires that the mandatory venue provisions in section 115.002 of the Property Code prevail over section 15.011 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 15.016. There is no dispute that Rebecca is a noncorporate trustee of the Parker Trust and that both Rebecca and Brian resided in Fort Bend County in the four years preceding this suit.

Id. Thus, the court held that Fort Bend County controlled under the Trust Code and that the Trust Code prevailed over the Texas Civil Practice and Remedies Code.

The court also addressed an argument that the trustee was not really an interested party to the suit:

Instead, appellants argue that appellees reliance on section 115.002 fails because appellees “failed to allege facts showing they are ‘interested persons'” under section 115.011. See Tex. Prop. Code § 115.011 (“Any interested person may bring an action under Section 115.001 of this Act.”). Appellants suggest that because the suit does not invoke jurisdiction under section 115.001, the venue provisions of section 115.002 are inapplicable. We disagree.

Property Code section 115.001(a-1) provides,

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 (a) whether or not the proceeding is listed in Subsection (a).

Id. at § 115.001(a-1)… Applying the plain language of section 115.001 to the case at hand, this section applies to “all proceedings by or against a trustee.” See Tex. Prop. Code § 115.001. This statutory language is neither vague nor ambiguous. See Am. Nat’l Ins., 410 S.W.3d at 853. We conclude that since this is a proceeding against a trustee in accordance with section 115.001, the mandatory venue provision of section 115.002 applies. Accordingly, we overrule appellants’ first and fifth issue.

Id. The court thus affirmed the trial court’s order denying the motion to transfer venue because the trustee lived in the county of suit and the Trust Code’s venue provision controlled.

Tags: Texas Trust Code Venue, Texas Trust Code Venue Provision Has Priority, venue, venue for trust disputes
Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of David Fowler Johnson David Fowler Johnson

[email protected]
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law Review, St. Mary’s Law Journal, South Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law
Read more about David Fowler JohnsonDavid's Linkedin Profile
Show more Show less
Related Posts
Court Reversed A Summary Judgment On Whether A Power Of Attorney Agent For A Settlor Had The Authority To Change The Designation Of A Successor Trustees In A Trust Document
October 10, 2024
Court Affirmed Order Reinstating Receivership While Case Was On Appeal
October 2, 2024
Court Affirmed A Judgment For An Estate Because The Personal Represented Participated In The Case
September 18, 2024