in Re: Patricia Stephens, Individually and as Trustee of the Walter H. Stephens Trust, the SSH Trust, the Sutton Elizabeth Stephens Trust, the Heather Love Stephens Irrevocable Trust, and Patco Energy, LTD.

CONDITIONALLY GRANT and Opinion Filed May 12, 2021

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00833-CV

IN RE PATRICIA STEPHENS, INDIVIDUALLY AND AS TRUSTEE OF
THE WALTER H. STEPHENS TRUST, THE SSH TRUST, THE SUTTON
ELIZABETH STEPHENS TRUST, AND THE HEATHER LOVE
STEPHENS IRREVOCABLE TRUST, AND PATCO ENERGY, LTD.,
Relators

Original Proceeding from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-03406

MEMORANDUM OPINION
Before Justices Osborne, Reichek, and Smith
Opinion by Justice Osborne
In this original proceeding, relator Patricia Love Stephens, Individually and

as Trustee of the Walter H. Stephens Trust, the SSH Trust, the Sutton Elizabeth

Stephens Trust, and the Heather Love Stephens Irrevocable Trust (collectively, the

Stephens Parties) and relator Patco Energy, Ltd. (Patco) complain of the trial court’s

order denying their motion to transfer venue. They contend venue is mandatory in

Reagan County under § 15.011 of the Texas Civil Practice and Remedies Code

because real parties in interest’s claims for an accounting and declaratory judgment
require adjudication of ownership rights to mineral interests located in Reagan

County.

We requested a response from real parties Frank and Michael Cass (together,

Real Parties) and respondent.1 Real Parties contend, inter alia, the motion was

mooted by their amending their pleading to drop their claims to quiet title, for

injunctive relief, and for the return of wrongfully taken property. After reviewing

the petition, response, reply, and mandamus record, we conclude (1) Real Parties’

suit fits within § 15.011 because it requires the adjudication of ownership rights to

mineral interests and, thus, will have an effect on an interest in land and (2) the

record evidences the mineral interests as being located, in part, in Reagan County

but not in Dallas County. Venue is, therefore, governed by § 15.011, and the trial

court clearly abused its discretion by denying the motion to transfer venue to Reagan

County. We conditionally grant the writ.

BACKGROUND

The following facts are supported by the mandamus record.

A. The Stephens Parties obtained a judgment against Real Parties in Reagan
County and executed on that judgment pending Real Parties’ appeal.

In 1997, the Stephens Parties obtained a multi-million-dollar judgment, which

included significant punitive-damages awards, against Real Parties in state court in

1
Respondent is the Honorable Aiesha Redmond, Judge of 160th Judicial District Court, Dallas County,
Texas.
–2–
Reagan County (the Reagan County Judgment).2 In 1999, while Real Parties’ appeal

was pending, the Stephens Parties executed on the Reagan County Judgment by

obtaining a turnover order in the 160th Judicial District Court of Dallas County (the

160th District Court) in Cause No. 98-04140, styled Patricia Love Stephens v. Frank

W. Cass et al. (the First Turnover Suit). The turnover order ordered Frank to

turnover and assign to a Dallas County constable certain mineral interests in which

Frank owned or claimed an interest (the 1999 Dallas Turnover Order).

In 1999, in purported compliance with the 1999 Dallas Turnover Order, Frank

executed an Assignment, Bill of Sale and Conveyance (the Assignment) wherein he

assigned to a Dallas County constable certain “oil, gas, and other mineral properties,

rights and interest” (the Mineral Interests).3 The constable held a sale where,

according to Real Parties, the Stephens Parties or their affiliates purchased the

Mineral Interests with a $25,000 credit bid applied against the Reagan County

Judgment (the Sale).4

2
The Reagan County Judgment awarded the Stephens Parties, inter alia, various sums against Frank
and Michael for damages and pre-judgment interest; several million dollars in punitive damages against
Frank and Michael each individually; significant monetary sanctions against Frank for discovery abuse;
attorney’s fees; and post-judgment interest.
3
The Assignment in the mandamus record appears to be missing page 2. Relators’ attorney verified
Relators’ appendix as including true and correct copies of documents filed in the underlying proceeding
that are material to the petition, indicating the Assignment was also filed in the trial court without page 2.
See TEX. R. APP. P. 52.7(a)(1). Real Parties rely upon Relators’ appendix in their response to the petition
for writ of mandamus. See TEX. R. APP. P. 52.7(b). We conclude the mandamus record is sufficient for
purposes of this petition.
4
Real Parties have alleged that the Stephens Parties or their affiliates acquired the Mineral Interests at
the Sale; Relators have stated that “Plaintiff Stephens” acquired the Mineral Interests. Evidence of the
transfer from the constable to the purchaser at the Sale is not in the record. A dispute, if any, about who
acquired the properties, however, is not material to the disposition of this original proceeding; we express
no opinion on who acquired the Mineral Interests at the Sale.
–3–
 In 2001, the El Paso Court of Appeals affirmed the Reagan County Judgment.

See Cass v. Stephens, No. 08-97-00582-CV, 2001 WL 28092 (Tex. App.—El Paso

Jan. 11, 2001), vacated by, 538 U.S. 1054 (2003). Real Parties subsequently filed a

petition for a writ of certiorari with the United States Supreme Court.

Meanwhile, the Stephens Parties filed a second turnover proceeding in the

160th District Court in Cause No. 02-6408-H, styled Patricia Love Stephens et al. v.

Frank W. Cass (the Second Turnover Suit). In 2002, the 160th District Court denied

that application without stating the grounds for its ruling (the 2002 Order Denying

Turnover Relief).

The United States Supreme Court granted certiorari and, in 2003, issued a

decision vacating the El Paso Court of Appeals’ judgment and remanding the case

back to the El Paso Court of Appeals for further consideration in light of State Farm

Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003)5 (the Supreme

Court’s Order).6 See Cass v. Stephens, 538 U.S. 1054 (2003).

The following month, Frank filed in the First Turnover Suit a Motion to

Dissolve Turnover Orders and for Return of Property Previously Turned Over. The

160th District Court denied that motion for lack of jurisdiction in July 2003.

5
In Campbell, the United States Supreme Court held an award of $145 million in punitive damages on
$1 million in compensatory damages violated the Due Process Clause of the Fourteenth Amendment. See
538 U.S. at 419–29.
6
As discussed below, Real Parties contend in the suit underlying this proceeding the Supreme Court’s
Order vacated the Reagan County Judgment. We express no opinion on the merits of Real Parties’ position.
–4–
 On remand in 2004, the El Paso Court of Appeals issued an opinion wherein

it reformed the Reagan County Judgment to provide for substantially lesser amounts

of punitive damages but otherwise affirmed the Reagan County Judgment, as

reformed, and signed a judgment accordingly (the Reformed Judgment).7 See Cass

v. Stephens, 156 S.W.3d 38, 79 (Tex. App.—El Paso 2004, pet. denied), cert. denied,

552 U.S. 819 (2007). Real Parties’ subsequent appeals were unsuccessful, and the

El Paso Court of Appeals issued its mandate on the Reformed Judgment on April

10, 2007 (the 2007 Mandate).

B. The Stephens Parties purportedly assigned the Reagan County Judgment
to Patco.

In 2016, the Stephens Parties purportedly executed an Assignment of

Judgment Liens, wherein, Real Parties contend, the Stephens Parties assigned “the

Reagan County Judgment and/or the [Reformed] Judgment” to Patco. Patco, in turn,

purportedly executed, inter alia, a Partial Assignment of Judgment and Judgment

Liens, wherein, Real Parties contend, Patco assigned “a portion of the Reagan

County Judgment and/or the [Reformed Judgment]” to Ferae Naturae, LLC (Ferae).8

In early 2020, Ferae filed suit in state court in Reagan County in Cause

No. CV02302, styled Ferae Naturae, LLC v. Arroyo Minerals, LLC, et al. (the Ferae

7
The Reformed Judgment reduced the multi-million-dollar-punitive-damage awards by providing for
the following punitive damages: “$300,000 against Frank Cass, and $300,000 against Frank Cass and
Michael Cass.”
8
We express no opinion about the identities of the parties to any purported assignment referenced in
the mandamus record, nor do we express any opinion on the scope of any such assignment.
–5–
Suit). Ferae sought judicial foreclosure of a purported judgment lien against an oil

and gas lease located in Reagan County (the Branch Lease). Mary Cass and Oli

Cass, who are defendants in the Ferae Suit, are Frank’s and Michael’s wives.9

C. Real Parties filed the underlying suit based on a theory that Frank Cass
never lost title to the Mineral Interests in 1999, and, thus, any proceeds
Relators have received from such properties should be applied against
the Judgments.10

1. Real Parties’ original petition
The month after Ferae filed suit, Real Parties filed the suit underlying this

original proceeding against Relators in the 160th District Court.11 Real Parties’

essential contention was that the Supreme Court’s Order vacated the Reagan County

Judgment, “making [the Reagan County Judgment] null and void and of no

consequence.” Real Parties alleged that because the now-void Reagan County

Judgment had supported issuance of the 1999 Dallas Turnover Order, that turnover

order also “became null and void, as if it never existed,” and the resulting Sale also

became “null and void.” Thus, Real Parties alleged, “title to those properties [sold

9
The defendants in the Ferae Suit (the Ferae Defendants) purportedly brought third-party claims against
the Stephens Parties and Patco (together, Relators) for an accounting/receivership, declaratory judgment,
and removal of cloud on title; these claims were purportedly based upon an assertion by the Ferae
Defendants that “royalty proceeds received by Stephens after her purchase of certain assets previously
belonging to [Frank and Michael] at a court-ordered constable’s sale should . . . be credited against the
outstanding amount of the Reformed Final Judgment.”
10
In their pleadings in the trial court, Real Parties refer to the Reagan County Judgment and the
Reformed Judgment as two “Judgments.” They take a similar position in this original proceeding. We
express no opinion on whether the Reagan County Judgment and Reformed Judgment are two distinct
judgments; we merely adopt Real Parties’ use of “Judgments” to describe Real Parties’ position.
11
Ferae subsequently nonsuited without prejudice Mary and Oli.
–6–
at the Sale] has always remained in Frank’s name, and he is the rightful owner of

those properties today.”

According to Real Parties, “[a]ll of the proceeds from those properties that

were paid to [Relators] belong to Frank, and all future proceeds from those properties

in [the] Sale belong to Frank.” They alleged, “[E]very dollar that the [Stephens

Parties] received from Frank’s properties pursuant to the void . . . Sale, from

October 1999 to April 10, 2007 [the date of the 2007 Mandate] was a credit on the

[Reformed] Judgment.”12 (Emphasis added.) Likewise, they alleged that “any

proceeds received by the [Stephens Parties] since April 10, 2007 should also be

applied to the [Reformed] Judgment.”

Real Parties further alleged generally that “all proceeds from any property of

Frank’s from October 1999 to the present should be applied as a credit to the

[Reformed] Judgment,” which they alleged is “the only valid judgment.” (Emphasis

added.) Those proceeds, they alleged, “were to be applied, dollar for dollar, to the

Judgments,” and when such credits are applied, the “Judgments have been paid in

full, or a relatively small amount is owed.”13

12
Real Parties also alleged that when they are given credit for the proceeds Relators received between
October 1999 and the date of the 2007 Mandate, the Reformed Judgment had been paid in full by that date.
If anything was left owing by that date, then, they alleged, it was only on this smaller amount that post-
judgment interest should have been calculated; and they alleged that post-judgment interest should have
been calculated from the date of the 2007 Mandate.
13
Real Parties also requested credit for unspecified personal property the constable allegedly took from
Frank’s home when executing the 1999 Dallas Turnover Order and for consideration paid to Relators in
connection with their assignments of the Judgments to third parties.
–7–
 Based on the above, Real Parties requested (1) an accounting and appointment

of a receiver; (2) a declaratory judgment Real Parties have fully satisfied the

Judgments; (3) removal of the cloud on title posed by Relators’ abstracts of judgment

and writs of execution, and a permanent injunction enjoining Relators and their

assignees from filing any further abstracts of judgment or writs of execution; (4) an

order requiring the return of wrongfully taken property, and the imposition of a

constructive trust; (5) a declaratory judgment that any assignments of judgment liens

are void or have no value; and (6) damages and punitive damages for tortious

interference, conversion, and abuse of process.

Real Parties alleged venue was proper in Dallas County for three reasons: all

or part of the causes of action accrued, in whole or in part, in Dallas County; the

matter required interpretation of Dallas County district court orders; and “the

Defendants and one Plaintiff” were Dallas County residents.

2. Relators’ motion to transfer venue

Relators filed a motion to transfer venue, objecting to suit in Dallas County

and requesting transfer to Reagan County.14 Relators argued, inter alia, venue is

14
In the same pleading, Relators also filed, subject to their motion to transfer venue, a plea in abatement;
they argued the first-filed Ferae Suit had dominant jurisdiction and Ferae is a necessary party whom Real
Parties needed to join in the suit. The trial court denied the plea in abatement in the order denying the
venue-transfer motion. Relators mention the ruling on their plea only once in their petition: “The trial
court committed error in denying the Motion to Transfer Venue. Alternatively, the Court below should
have abated this cause in favor o[f] the pre-existing action filed in Reagan County, because of the
interrelated subject matter of the two cases.” We need not address Relators’ alternative argument regarding
the plea-in-abatement ruling, assuming it was adequately briefed, in light of our conclusion the trial court
clearly abused its discretion by denying the venue-transfer motion. See TEX. R. APP. P. 47.1, 52.8(d).
–8–
mandatory in Reagan County under § 15.011 of the Texas Civil Practice and

Remedies Code because that “is where the real property is located that is subject to

[Real Parties’] . . . request to ‘recover’ and/or ‘quiet title’ to such real property.”

Relators also contended venue is mandatory in Reagan County under §§ 15.013 and

65.023(b) of the Texas Civil Practice and Remedies Code.15

3. Real Parties’ amended petition and response to the motion to
transfer venue
In apparent response to the motion, Real Parties filed an amended petition that

omitted claims and requests for relief explicitly asking the court to quiet title to any

real property, injunctive relief as to further enforcement of the Judgments, or for an

order requiring the return of any “wrongfully taken” property. The amended

petition, however, left entirely intact the substance of the original petition’s factual

allegations and remaining claims—changing none of the above-quoted allegations

from the original petition.16 The amended petition also did not amend Real Parties’

venue allegations, except it added a reference to an affidavit executed by Frank,

which Real Parties attached to their amended petition.

15
It is not necessary to address the parties’ arguments regarding §§ 15.013 and 65.023(b) in light of
our conclusion venue is mandatory in Reagan County under § 15.011. See TEX. R. APP. P. 47.1, 52.8(d).
16
The amended petition added allegations that (1) the Stephens Parties were paid on unspecified
properties of Frank’s that were not the subject of the 1999 Dallas Turnover Order, and Relators never gave
Real Parties credit for these monies either; (2) any writs of execution or abstracts of judgment filed after
the date of the Reformed Judgment were dormant; and (3) the 2002 Order Denying Turnover Relief
constitutes res judicata that the “Judgment” has been paid in full.
–9–
 Real Parties also filed a response to the venue-transfer motion. Among other

things, they argued their amended petition rendered the motion moot and venue was

both mandatory and permissive in Dallas County.

4. The trial court’s ruling
Relators filed a reply in support of their venue-transfer motion, arguing, inter

alia, the core of the claims and ultimate relief sought by Real Parties in their

amended petition remained the same and still required adjudication of ownership of

real property interests located in Reagan County and not Dallas County. Relators

also argued there was no allegation or evidence supporting mandatory venue in

Dallas County.

Real Parties filed a reply to Relators’ reply,17 and the trial court held a hearing

and denied the motion to transfer venue. Relators then brought this original

proceeding.

AVAILABILITY OF MANDAMUS RELIEF

“A party may apply for a writ of mandamus with an appellate court to enforce

the mandatory venue provisions of [Chapter 15 of the Texas Civil Practice and

17
The parties dispute whether the amended petition requests the imposition of a constructive trust. The
amended petition dropped the claim for the return of wrongfully taken property and the imposition of a
constructive trust but continued to request generally the imposition of a constructive trust “as set forth
above” in the prayer for relief. Real Parties argued in their reply that they had inadvertently left in the
request for a constructive trust in their prayer for relief. However, Real Parties filed their reply seven days
prior to the hearing on the venue-transfer motion without amending their petition to correct their purported
mistake. Regardless, in light of our conclusion venue is mandatory in Reagan County without reference to
the amended petition’s prayer for a constructive trust, a determination of whether Real Parties continue to
request the imposition of a constructive trust is not necessary for the disposition of this original proceeding.
–10–
Remedies Code].” TEX. CIV. PRAC. & REM. CODE ANN. § 15.0642. In mandatory-

venue cases, we look only to whether the trial court clearly abused its discretion

when ruling upon the motion. See In re Fox River Real Estate Holdings, Inc., 596

S.W.3d 759, 763 (Tex. 2020) (orig. proceeding). Trial courts have no discretion in

determining what the law is or in the application of the law to the facts. Id.

MANDATORY VENUE UNDER § 15.011

Section 15.011 states,

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. Section 15.011 is a mandatory-venue

provision. See In re Applied Chem. Magnesias Corp., 206 S.W.3d 114, 119 (Tex.

2006) (orig. proceeding).

Relators must demonstrate two venue facts were established in order to show

venue is mandatory in Reagan County under § 15.011: (1) the nature of the instant

suit fits within those listed in § 15.011 and (2) “all or a part” of the realty at issue is

located in Reagan County. See Airvantage, L.L.C. v. TBAN Props. # 1, L.T.D., 269

S.W.3d 254, 258 (Tex. App.—Dallas 2008, no pet.); see also TEX. R. CIV.

P. 87(2)(a). Relators met their burden.

–11–
A. The nature of Real Parties’ suit fits within § 15.011.

Relators argue the action is governed by § 15.011 because Real Parties’ claims

for an accounting, declaratory judgment, and conversion are based upon Real

Parties’ theory that Frank is the rightful owner of the Mineral Interests, which are

real property interests located in Reagan County. Thus, Relators contend,

adjudication of the ownership of the Mineral Interests is a necessary predicate to

Real Parties’ claims, and venue is mandatory in Reagan County under § 15.011.

Real Parties argue no mandatory-venue provision is applicable. They contend

they are simply seeking an accounting of what monies have been paid on the

Judgments and a declaratory judgment that the Judgments have been paid or

declaring what amount is still owed. That, they argue, “is the crux and the ‘true

nature’ of the trial court proceedings from which this mandamus arises.” Real

Parties contend their claims “have nothing to do with a determination of who is in

title to property in Reagan County,” arguing their amended petition “does not state

any cause of action, or request any relief, that would require the trial court to make

any determination of ownership of real property located in Reagan County” and does

not “request[] determination of ownership of property in Reagan County.” We reject

Real Parties’ arguments, which place form over substance, and agree with Relators.

–12–
 1. To determine venue, we review the substance of the factual
allegations, rights asserted, and relief sought in the last timely filed
pleading, not how the parties describe their claims.

To determine whether the suit fits within those listed in § 15.011, we examine

the last pleading that was timely filed. In re Hardwick, 426 S.W.3d 151, 157 (Tex.

App.—Houston [1st Dist.] 2012, orig. proceeding). A party may freely amend its

pleadings at least seven days prior to a hearing on a motion to transfer venue. See

Galindo v. Garner, No. 05-19-00061-CV, 2019 WL 2098689, at *4 (Tex. App.—

Dallas May 14, 2019, no pet.) (mem. op.); see also TEX. R. CIV. P. 63. Here, Real

Parties’ amended petition, filed several weeks before the hearing on Relators’

motion, is the operative pleading.

The “mandatory venue provisions may not be evaded merely by artful

pleading.” In re Kerr, 293 S.W.3d 353, 358 (Tex. App.—Beaumont 2009, orig.

proceeding) (per curiam). A court is required to “determine the venue of a suit based

on the facts existing at the time the cause of action that is the basis of the suit

accrued.” Id. at 358–59 (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 15.006).

Venue is determined “by the substance of the claim, not its form.” Id. at 356. How

the parties described a cause of action is not decisive. Id. at 360; see also Airvantage,

269 S.W.3d at 258.

The “true nature of the lawsuit depends on the facts alleged in the petition, the

rights asserted, and the relief sought.” Airvantage, 269 S.W.3d at 258. The

“ultimate or dominant purpose of a suit” determines whether it falls under the

–13–
mandatory-venue statute. Id. “[N]o special distinctions are made for real property

suits simply because they are couched in terms of a declaratory judgment.” Id.

“Once it is demonstrated that the court’s judgment would have some effect on an

interest in land, then the venue of the suit is properly fixed under the mandatory

venue statute [§ 15.011].” Id. at 259.

2. Real Parties’ suit fits within § 15.011 because their right to relief
requires proving Frank’s ownership rights to the Mineral
Interests.

As an initial matter, we note mineral interests are interests in real property. In

re Estate of Ethridge, 594 S.W.3d 611, 616 (Tex. App.—Eastland 2019, no pet.). A

right to future payments arising from mineral interests is an interest in land. See

Clyde v. Hamilton, 414 S.W.2d 434, 439 (Tex. 1967). Claims for past and accrued

proceeds from mineral interests, however, are claims to recover personal property.

See Ethridge, 594 S.W.3d at 616 (“[M]inerals become personal property when

severed or extracted from the land.”); In re Brin & Brin, P.C., No. 13-13-00324-CV,

2013 WL 3895365, at *5 (Tex. App.—Corpus Christi–Edinburg July 23, 2013, orig.

proceeding) (mem. op.) (stating accrued royalties are interests in personal property).

Nonetheless, “[w]hen rightful ownership of real property must be decided as

a prerequisite to the relief requested, the mandatory venue statute governs.” Kerr,

293 S.W.3d at 360. Thus, “[a] suit over the ownership of proceeds from mineral

interests must be filed in the county in which the real property is located even though

the cause of action is for a declaratory judgment over monies.” Madera Prod. Co.

–14–
v. Atl. Richfield Co., 107 S.W.3d 652, 660 (Tex. App.—Texarkana 2003, pet.

denied).

Just like the original petition, the principal theory of recovery alleged in Real

Parties’ amended petition is as follows: The Supreme Court’s Order vacated the

Reagan County Judgment, making the Reagan County Judgment null and void and

of no consequence. As a result, the 1999 Dallas Turnover Order and subsequent

Sale became null and void, as if they never existed, because the turnover order was

supported by the now-void Reagan County Judgment. Thus, Real Parties assert,

Frank owns, and has always owned, the rights to the Mineral Interests and is entitled

to all past, present, and future18 proceeds from the Mineral Interests. Consequently,

Real Parties are, and have been since October 1999, entitled to a dollar-for-dollar

credit against the Judgments for all proceeds Relators have received from “Frank’s”

Mineral Interests since the Sale in 1999.19 Real Parties allege “Frank has been

wrongfully without his property for almost 21 years.”

In terms of the relief requested, Real Parties request an accounting of “all of

the monies and proceeds received by any [Relator] that are related to any property

18
The amended petition continues to allege Frank “is the rightful owner of those properties today” and
“all future proceeds from those properties in that . . . Sale belong to Frank,” although it omits the original
petition’s explicit request for an order “that all future proceeds from such properties belong to Frank.”
19
As noted above, Real Parties’ amended petition alleges additional grounds for recovery, but their
contention that Frank never lost title to the Mineral Interests and, thus, Real Parties are entitled to a credit
for all proceeds Relators have received from the Mineral Interests is their principal theory of recovery. We
further note that “[i]f a mandatory venue provision applies to any claims or cause of action, then all claims
and causes of action arising from the same transaction must be brought in the county of mandatory venue.”
See Airvantage, 269 S.W.3d at 259 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 15.004). The other
grounds for relief requested in the amended petition meet this test.
–15–
owned by Frank,” from “October 1999 to the present and shall include all oil and

gas and mineral properties owned by Frank or any properties that were the subject

of the 1999 Dallas Turnover Order and the subsequent . . . Sale.” (Emphases added.)

Based on such accounting, Real Parties request declarations that the Judgments have

been paid and that any judgment liens are void or at least have no value “since the

Judgments at issue have been paid.” They also seek damages and punitive damages

for conversion, alleging, in relevant part, Relators “have wrongfully taken Plaintiffs’

property and kept it, despite knowing the 1999 Dallas Turnover Order is void.”

The ultimate or dominant purpose of the suit is to establish Frank never lost

title to the Mineral Interests in 1999—despite the 1999 Dallas Turnover Order, the

Assignment, and the Sale—because Real Parties want a credit against the Judgments

for all proceeds Relators have received from the Mineral Interests since 1999. Real

Parties’ entitlement to any of their above-requested relief will stand or fall based, in

large part, on whether the Supreme Court’s Order rendered the 1999 Dallas Turnover

Order, the Assignment, and/or the Sale null and void such that Frank remained the

true owner of the Mineral Interests all along.20 Real Parties’ suit will have an effect

on an interest in land because rightful ownership of the Mineral Interests, which are

real property interests, must be decided as a prerequisite to their requested

20
We express no opinion on the merits of Real Parties’ claims and theories of recovery.
–16–
accounting, declaratory judgment, and damages for conversion. See Airvantage, 269

S.W.3d at 259.

It is apparent Real Parties amended their petition in an attempt to avoid the

application of § 15.011. But such amendment did not change the nature or effect of

this suit: if Real Parties prevail, the suit will render the Assignment and the Sale

nullities; and it will render any claim by Relators to past, current, or future ownership

of the Mineral Interests or to any past, present, or future proceeds from such interests

likewise void. Real Parties’ suit is tantamount to a suit to quiet title 21 and for the

return of the Mineral Interests, despite Real Parties’ artfully amending their pleading

to couch it as a simple accounting and declaratory-judgment case. See Applied

Chem., 206 S.W.3d at 119 (holding real parties used declaratory-judgment

mechanism as indirect means of quieting title to a mineral estate when essence of

dispute was whether relator had a right to mine marble and, thus, had a mineral lease

on plaintiff’s land); Hardwick, 426 S.W.3d at 162 (holding action seeking forfeiture

of assigned mineral interests and overriding royalty interests as a remedy was suit to

recover real property interests subject to § 15.011); Airvantage, 269 S.W.3d at 259

21
A “cloud” on legal title includes any deed, contract, judgment lien, or other instrument, not void on
its face, that purports to convey an interest in or make any charge upon the land of the true owner, the
invalidity of which would require proof. Airvantage, 269 S.W.3d at 258. “A suit to quiet title relies on the
invalidity of the defendant’s claim to the property.” Farkas v. Aurora Loan Servs., L.L.C., No. 05-15-
01225-CV, 2017 WL 2334235, at *9 (Tex. App.—Dallas May 30, 2017, pet. denied) (mem. op.). To prevail
in a suit to quiet title, a claimant must prove three elements: (1) he has an interest in a specific property;
(2) title to the property is affected by a claim of the defendant; and (3) the defendant’s claim, although
facially valid, is invalid or unenforceable. Id. at *8. “The effect of a suit to quiet title is to declare invalid
or ineffective the defendant’s claim to title.” Suite 900, LLC v. Vega, No. 02-19-00271-CV, 2020 WL
2608394, at *7 n.12 (Tex. App.—Fort Worth May 21, 2020, pet. denied) (mem. op.) (citation omitted).
–17–
(holding conversion and conspiracy claims premised on allegedly wrongful lis

pendens required adjudication of validity of liens and, thus, affected an interest in

land); In re City Nat’l Bank, 257 S.W.3d 452, 455 (Tex. App.—Tyler 2008, orig.

proceeding) (holding suit requesting a permanent injunction to prevent foreclosure

of deed of trust lien based on allegation lien was procured by fraud would render

lien a nullity and, thus, was tantamount to a suit to remove an encumbrance from

title and judgment sought would affect an interest in land).

Accordingly, based on our examination of the factual allegations, rights

asserted, and relief requested in Real Parties’ amended petition, we conclude Real

Parties’ suit will require adjudication of ownership rights to the Mineral Interests

and, thus, will have an effect on an interest in land. See Kerr, 293 S.W.3d at 358

(“When the underlying issue that a plaintiff must prove to show its entitlement to

damages involves proof of the ownership rights to mineral interests, section 15.011

applies.”); see also Brin & Brin, 2013 WL 3895365, at *7 (holding § 15.011

controlled when resolution of plaintiff’s claim to monies depended on rightful

ownership of a royalty interest); Kerr, 293 S.W.3d at 359–60 (holding suit governed

by § 15.011 when the “heart of the controversy” was plaintiff’s assertion it had the

right to develop mineral interests for its own benefit despite plaintiff’s disclaimer of

an attempt to recover land or damages based on future production from the mineral

interests); Madera, 107 S.W.3d at 659–660 (holding suit fell within § 15.011 when

plaintiff had to prove ownership rights in a mineral lease to recover damages, despite

–18–
plaintiff’s amending its pleading to exclude issues of title or ownership to real

property). Thus, the suit fits within § 15.011, and venue is mandatory in the county

in which all or a part of the real property is located. See TEX. CIV. PRAC. & REM.

CODE ANN. § 15.011.

3. Real parties’ additional arguments as to why their suit does not fit
within § 15.011 are not persuasive.

Real Parties assert a number of additional reasons why they contend their suit

does not fit within § 15.011, but none are persuasive.

First, citing no authority, Real Parties argue the “factual background in the

Amended Petition is the least significant” factor to consider when determining

venue. But we must review factual allegations when making our venue

determination. See Airvantage, 269 S.W.3d at 258. As Real Parties acknowledge,

the factual background section “explain[s] the reasons why [they claim they] are

entitled to the relief they seek.” Here, that reason is because they intend to prove

Frank currently owns, and has owned, the rights to the Mineral Interests.

Second, Real Parties argue at length that Relators erroneously focus on the

original petition rather than the operative, amended pleading. They repeatedly

accuse Relators of attempting to mislead this Court about the true nature of this case

and of stating what they “wish the Amended Petition requested.” But this Court’s

conclusion that Real Parties’ suit fits within § 15.011 is based on the contents of the

amended petition. Relators’ references to the original petition demonstrate, as we

–19–
have also concluded, Real Parties’ pleading amendment was an attempt to avoid the

application of § 15.011.

Third, Real Parties cite Yzaguirre v. KCS Resources, Inc., 53 S.W.3d 368

(Tex. 2001), to argue their claims for accounting and declaratory judgment do not

require an adjudication of ownership of the real property in Reagan County because

their claims “merely require the trial court to apply simple math to whatever amounts

have been paid toward the Final Judgment and then issue a declaration as to what

amount if any, is still owed on the Final Judgment.” But Yzaguirre is

distinguishable. There, the substance of the dispute concerned how to calculate

royalties everyone agreed KCS Resources owed the owners. Id. at 369–71. The suit

involved no dispute over the boundaries of the leases or the percentages of royalties.

Id. at 371. Accordingly, the Supreme Court of Texas concluded § 15.011 did not

apply because ownership of real property was not in dispute. Id.

Here, by contrast, there is a key dispute over whether Frank is the rightful

owner of properties sold pursuant to the 1999 Dallas Turnover Order. Real Parties

ignore that calculating the “amounts [that] have been paid toward the Final

Judgment” first requires a determination as to who owns the Mineral Interests—

because Real Parties seek an accounting of, and credit for, past proceeds from the

Mineral Interests paid to Relators that Real Parties contend Frank should have

received, despite the Assignment and the Sale. Thus, the lawsuit’s outcome depends

on determining Frank’s interest in real property.

–20–
 Fourth, Real Parties argue their conversion claim is merely a “tangential

claim” that has “nothing to do with the ‘true purpose’ of this suit.” They contend

the claim is based on “personal property of Frank Cass taken from his Dallas County

home, or other property not the subject of the 1999 [Dallas] Turnover Order.” But

when describing their claim for conversion in the amended petition, Real Parties

incorporate by reference all preceding paragraphs “as if fully copied and set forth at

length” and allege, “[Relators] have wrongfully taken Plaintiffs’ property and kept

it, despite knowing the 1999 Dallas Turnover Order is void and despite knowing

they received proceeds from properties of Frank Cass that were not the subject of

the 1999 Dallas Turnover Order.” (Emphasis added.) The claim plainly

encompasses Relators’ alleged conversion of title to the Mineral Interests, even if

the conversion claim is also based, in part, on their alleged conversion of other

property.

Real Parties also cite no authority that supports their contention their claim

for conversion is “tangential” or ancillary to any other claims such that the

allegations asserted and relief requested in support of this claim cannot provide

grounds for mandatory venue under § 15.011. Cf. Fox River, 596 S.W.3d at 765–66

(“[W]henever it can properly be said from the pleadings that the issuance of an

injunction is merely ancillary to the primary relief sought, section 65.023(a) has no

application.”) (internal quotation marks and citation omitted); In re Zidan, No. 05-

20-00595-CV, 2020 WL 4001134, at *4 (Tex. App.—Dallas July 15, 2020, orig.

–21–
proceeding) (mem. op.) (holding request for receiver was an ancillary request for

relief that did not implicate mandatory-venue provisions). This claim requires a

determination of who owns the Mineral Interests conveyed pursuant to the 1999

Dallas Turnover Order, and, thus, is properly considered when determining venue

under § 15.011.

Fifth, Real Parties argue that at the hearing on the venue-transfer motion, their

counsel informed the trial court (1) the amended petition “is devoid of any claim for

an adjudication of title to real property” and (2) “if in the future, the Real Parties try

to bring any claim for a determination of title to real property located in another

county, the trial court is empowered to refuse to allow the Real Parties to do so.”22

These statements, they contend, are “clear evidence” there “is no claim for an

adjudication of title to real property at issue.” But counsel’s argument is not

evidence, and we have already concluded that, in substance, Real Parties do seek

adjudication of ownership of real property in the underlying suit. See Kerr, 293

S.W.3d at 358.

Finally, Real Parties argue that cases like Kerr and Madera, cited by Relators,

are distinguishable. See Kerr, 293 S.W.3d at 358–59; Madera, 107 S.W.3d at 659–

22
On the page of the record cited by Real Parties, Real Parties’ counsel stated,
The Court is well aware of the venue. I mean, the Court was well aware that we’re not
seeking injunctive relief or cloud on title removal or whatever, so the Court would not grant
us that relief even if we sought it later. We’re not seeking it. So he’s got a built-in
protection down the road if somehow he thinks that’s what this lawsuit is really about
because it’s not. Because we’re not seeking that relief.

–22–
60. Real Parties argue that in Kerr, “the plaintiff sought entitlement to damages and

had to prove he had ownership rights in a mineral lease in order to recover [those]

damages.” They contend that in their suit, however, “Real Parties are not seeking

damages, they are seeking an accounting and a declaratory judgment.” But our

analysis of the substance of a suit when determining venue includes reviewing

claims seeking relief other than monetary damages, such as declaratory relief. See

Renwar Oil Corp. v. Lancaster, 276 S.W.2d 774, 776 (Tex. 1955) (holding

plaintiffs’ request for adjudication that certain agreements conveying an interest in

realty are void and ineffective to them constitutes an effort to remove cloud from

title, even though plaintiffs alleged claim as a request to construe a contract). Real

Parties wholly fail to explain how they will prove entitlement to their requested relief

without first proving Frank’s ownership of the Mineral Interests.

Similarly, Real Parties argue that in Madera, “the plaintiff sought a

declaratory judgment over monies, which necessarily required a determination of

ownership of the mineral interests.” They contend that in their suit, “Real Parties

simply want the accounting and a declaratory judgment and have made no claim

they are entitled to the monies that would require a determination of who owns the

real properties.” But the premise of Real Parties’ request for an accounting and

declaratory judgment is their claim to ownership of the Mineral Interests and

resulting entitlement to the proceeds from the Mineral Interests. The fact Real

Parties ultimately seek an award of a credit against the Judgments in the form of

–23–
declaratory relief rather than monetary damages is not dispositive. Further, in their

conversion claim, they do request “recover[y of] all damages from the conversion of

their property,” and, as discussed above, such property includes the Mineral

Interests.

B. All or a part of the realty at issue is located in Reagan County.

As to the second venue fact, there is no dispute that at least some of the

Mineral Interests are located in part in Reagan County. This venue fact is readily

established by the mandamus record. Relators included the Assignment and its

attachments as an exhibit to their venue-transfer motion. These documents identify

the Mineral Interests Frank assigned to the constable and show Reagan County (but

not Dallas County) among the locations of the Mineral Interests. In Frank’s own

affidavit, which Real Parties attached to their amended petition and response to the

venue-transfer motion, he testified that the properties subject to the 1999 Dallas

Turnover Order include Mineral Interests located in Reagan County: “The properties

listed in Exhibit ‘A’ to the 1999 [Dallas] Turnover Order are oil and gas properties

located in numerous counties within the State of Texas,” including “Reagan, Upton,

Glasscock, Midland, Mitchell, Andrews, Ector, Ward, Gregg[,] and Harrison

Counties.”

Citing no authority, Real Parties argue that because Frank’s affidavit shows

the oil and gas properties at issue are located in numerous counties throughout the

State of Texas, their suit would need to be brought in each such county, requiring

–24–
multiple lawsuits all over the state, including Dallas County. This argument ignores

the plain language of § 15.011, which makes venue mandatory in a county where

“all or a part” of the property at issue is located. TEX. CIV. PRAC. & REM. CODE

ANN. § 15.011 (emphasis added). The statute makes clear that all the property need

not be located within a single county to trigger the mandatory-venue requirement.

Moreover, the mandatory-venue rules may designate multiple counties as proper.

See Perryman v. Spartan Tex. Six Capital Partners, Ltd., 546 S.W.3d 110, 130 (Tex.

2018). The plaintiff makes the first choice of venue by filing suit; if the plaintiff

files in a “proper” venue, that choice is honored absent a mandatory-venue statute

requiring transfer. See id.

Real Parties are also not clear about why they contend they would need to

bring suit in Dallas County. Real Parties cite nothing in the record demonstrating

that any real property at issue affected by this suit is located, in whole or in part, in

Dallas County, and we have found nothing. Although Real Parties argue they may

seek the return of property taken from them in Dallas County, they base this

argument on personal property the constable allegedly removed from Frank’s home

in Dallas County after issuance of the 1999 Dallas Turnover Order. Section 15.011,

however, does not apply to personal property. See TEX. CIV. PRAC. & REM. CODE

ANN. § 15.011.

–25–
 Accordingly, we conclude the mandamus record establishes that “all or a part”

of the realty at issue is located in Reagan County. See id.; Airvantage, 269 S.W.3d

at 258–59. Thus, transfer is mandatory to Reagan County under § 15.011.

C. Real Parties’ additional arguments for mandatory or permissive venue in
Dallas County are without merit.

Real Parties raise a few global arguments as to why they contend their suit

should remain in Dallas County. We address each argument in turn.

First, Real Parties argue Relators waived venue in Reagan County by bringing

the two turnover lawsuits in Dallas County. They reason there is no mandatory-

venue statute requiring venue in Reagan County and this case should be maintained

in Dallas County for comity, consistency of rulings, and convenience of the parties

and witnesses. They further contend Relators did not properly specifically deny Real

Parties’ venue allegations and, therefore, Real Parties were not required to offer

prima facie proof of their venue facts, which should be accepted as true.

This argument is without merit. If a plaintiff’s chosen venue rests on a

permissive-venue statute and the defendant files a meritorious motion to transfer

venue based on a mandatory-venue provision, the trial court must grant the motion.

See Brin & Brin, 2013 WL 3895365, at *5. Relators properly objected to venue in

Dallas County and asserted venue is mandatory in Reagan County under § 15.011.

Because we conclude Relators met their burden to prove venue is mandatory in

Reagan County, we need not address the merits of Real Parties’ permissive-venue

contentions. See TEX. R. CIV. P. 86(3)(b); In re R.R. Repair & Maint., Inc., No. 05-
–26–
09-01035-CV, 2009 WL 3531636, at *5–6 (Tex. App.—Dallas Nov. 2, 2009, orig.

proceeding) (mem. op.).

Second, Real Parties argue the 160th District Court is the only court that can

interpret its prior orders and give them their intended meaning, claiming such

authority is “tantamount to a mandatory venue provision.” They also contend the

Reagan County court’s interpreting the 160th District Court’s prior orders “would

be an ‘attack’ on those orders.”

Real Parties fail to explain how their suit requires an interpretation or

enforcement of any order of the 160th District Court or how such orders would be

“attacked” by the Reagan County court. Regardless, Real Parties’ argument

erroneously conflates the continuing jurisdiction of trial courts generally with venue.

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.002(a)(1). Moreover, the underlying

suit is not the same suit in which the 1999 Dallas Turnover Order or 2002 Order

Denying Turnover Relief were obtained roughly twenty years ago. The trial court’s

plenary power in those suits has long since expired.23 See TEX. R. CIV. P. 329b.

The only case Real Parties cite to support their position, Butron v. Cantu, 960

S.W.2d 91 (Tex. App.—Corpus Christi–Edinburg 1997, no writ), is inapposite. That

case concerned §§ 65.013 and .023, which relate to suits for an injunction to stay

execution of a judgment. See id. at 94–95; see also TEX. CIV. PRAC. & REM. CODE

23
In 2003, in the First Turnover Suit, the 160th District Court denied for lack of jurisdiction Frank’s
Motion to Dissolve Turnover Orders and for Return of Property Previously Turned Over, which he filed
the month after the Supreme Court’s Order was issued.
–27–
ANN. § 65.023(b) (“A writ of injunction granted to stay proceedings in a suit or

execution on a judgment must be tried in the court in which the suit is pending or

the judgment was rendered.”). But nothing in the amended petition explicitly or

implicitly seeks an injunction to stay execution of a judgment rendered by a court in

Dallas County. Real Parties cite no other authority to support mandatory venue in

Dallas County, and we have found none.24

CONCLUSION

We conditionally grant the writ of mandamus and direct the trial court to

(1) vacate the portion of its August 3, 2020 order denying relators’ motion to transfer

venue and (2) transfer venue to Reagan County. The writ will issue only if the trial

court fails to comply.

/Leslie Osborne//
200833f.p05 LESLIE OSBORNE
JUSTICE

24
Real Parties also accuse Relators of gamesmanship for various reasons but cite no authority stating
gamesmanship, if any, provides grounds for denying Relators’ meritorious venue-transfer motion. We
reject this argument.
–28–