law-venue | Houston venue cases | appellate review of rulings on motion to transfer venue |
Some Texas authorities hold that venue selection, in contrast to forum selection, cannot be the subject of
private contract, because an advance agreement regarding venue must not encroach on the statutory scheme
for fixing venue. See Fleming v. Ahumada, 193 S.W.3d 704, 712-713 (Tex. App.-Corpus Christi 2006, no pet.);
Bristol-Myers Squibb Co. v. Goldston, 957 S.W.2d 671, 674 (Tex. App.-Fort Worth 1997, pet. dism'd by agr.)
("Because venue is fixed by law, any agreement or contract whereby the parties try to extend or restrict venue
is void as against public policy.").
VENUE & MOTION TO TRANSFER VENUE
Motion to Transfer Venue - Venue mandamus
Although mandamus review is available to enforce the Civil Practice and Remedies Code’s mandatory
venue provisions, a party generally may not seek mandamus review of a permissive venue determination.
 See Tex. Civ. Prac. & Rem. Code Ann. § 15.0642 (Vernon 2002) (“A party may apply for a writ of
mandamus with an appellate court to enforce the mandatory venue provisions of [Chapter 15.]”); In re Mo. Pac.
R.R. Co., 998 S.W.2d 212, 215–16 (Tex. 1999) (“We reiterated in early 1995 that ‘Texas law is quite clear that
venue determinations are not reviewable by mandamus.’ But a few months later, the Legislature enacted
section 15.0642 authorizing parties to seek mandamus ‘to enforce the mandatory venue provisions,’ along with
a timetable for seeking mandamus.”) (quoting Polaris Inv. Mgmt. Corp. v. Abascal, 892 S.W.2d 860, 862 (Tex.
1995) (per curiam)).
The Texas Supreme Court has held that “venue determinations generally are incidental trial rulings that
are correctable on appeal.” Bridgestone/Firestone, Inc. v. Thirteenth Court of Appeals, 929 S.W.2d 440, 441
(Tex. 1996) (per curiam) (citing Montalvo v. Fourth Court of Appeals, 917 S.W.2d 1, 2 (Tex. 1995) (per
curiam)); see In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999) (“[V]enue determinations as a rule are
not reviewable by mandamus.”); see also In re Team Rocket, 256 S.W.3d at 261 (“The only remedy afforded by
the Legislature when a party loses a venue hearing is to proceed with trial in the transferee county and appeal
any judgment from that court on the basis of alleged error in the venue ruling.”). “[T]he mere fact that a trial
court’s erroneous order will result in an eventual reversal on appeal does not mean that a trial will be a ‘waste
of judicial resources’ . . . . To hold otherwise would mean that virtually any reversible error by a trial court
would be a proper subject for mandamus review.” In re City of Irving, 45 S.W.3d 777, 779 (Tex. App.—
Texarkana 2001, orig. proceeding).
The Texas Supreme Court has also held, however, that mandamus review of permissive venue
determinations is appropriate in “extraordinary circumstances.” In re Team Rocket, 256 S.W.3d at 262; see
also In re Masonite Corp., 997 S.W.2d at 197 (“But on rare occasions an appellate remedy, generally
adequate, may become inadequate because the circumstances are exceptional. Specifically, a trial court’s
action can be ‘with such disregard for guiding principles of law that the harm . . . becomes irreparable.’”)
(quoting Nat’l Indus. Sand Ass’n v. Gibson, 897 S.W.2d 769, 771 (Tex. 1995)); Bridgestone/Firestone, 929 S.W.
2d at 441 (noting that court had previously granted mandamus relief when trial court failed to afford venue
movant reasonable opportunity to supplement venue record). The court has “granted mandamus relief in the
context of Rule 87 venue rulings where . . . the trial court made no effort to follow the rule.” In re Team Rocket,
256 S.W.3d at 262; see also Woods v. Alvarez, 925 S.W.2d 119, 122 (Tex. App.—Corpus Christi 1996) (noting
that mandamus relief is available when “the trial court fails to follow the procedural requirements of Texas Rule
of Civil Procedure 87 concerning each party’s right to sufficient notice of the venue hearing”), overruled on
other grounds, Bridgestone/Firestone, 929 S.W.2d at 442; Cone v. Gregory, 814 S.W.2d 413, 414–15 (Tex.
App.—Houston [1st Dist.] 1991, orig. proceeding) (listing as exceptions to general rule of no mandamus relief
for venue determinations: (1) trial court has mandatory, ministerial duty to transfer, (2) trial court issues a void
order on venue, and (3) trial court violates mandatory notice procedure).
In Team Rocket, for example, the plaintiffs originally filed suit in Harris County for, among other things,
negligence arising out of a fatal plane accident that occurred in Fort Bend County. 256 S.W.3d at 258. Team
Rocket moved to transfer venue to Williamson County, its principal place of business, and the trial court
granted the motion. Id. at 259. The plaintiffs nonsuited and then immediately filed an identical suit in Fort Bend
County. Id. The Fort Bend County trial court denied Team Rocket’s motion to transfer venue to Williamson
County. Id. The Texas Supreme Court found that “extraordinary circumstances” for granting mandamus review
of a non-mandatory venue determination existed, and reasoned that when “a trial court improperly applied the
venue statute and issued a ruling that permits a plaintiff to abuse the legal system by refiling his case in county
after county, which would inevitably result in considerable expense to taxpayers and defendants, requiring
defendants to proceed to trial in the wrong county is not an adequate remedy.” Id. at 262; see also In re
Masonite Corp., 997 S.W.2d at 198 (finding “exceptional circumstances” present when trial court denied motion
to transfer venue to defendant’s requested county and “on its own motion” severed claims into sixteen different
cases and transferred cases to counties of plaintiffs’ residence).
REVIEW OF VENUE RULINGS ON APPEAL
We overturn a trial court’s ruling on a motion to transfer venue only if the trial court’s decision is an abuse of
discretion. In re Cont’l Airlines, Inc., 988 S.W.2d 733, 735 (Tex. 1998). In determining proper venue, the trial
court’s discretion is limited by the parties’ pleading and proof. In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 216
(Tex. 1999). The nature of the suit must be determined solely from the facts alleged in the plaintiff’s petition,
the rights asserted, and the relief sought. Renwar Oil Corp. v. Lancaster, 276 S.W.2d 774, 775 (Tex. 1955).
On review, though, if any evidence in the entire record supports the venue, then we must uphold the trial court’
s determination. Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b) (Vernon 2002); Bonham State Bank v. Beadle,
907 S.W.2d 465, 471 (Tex. 1995).
Beard v. Endeavor Natural Gas, LP (Tex.App.- Houston [1st Dist.] Dec. 19, 2008)(Bland)
(oil and gas law, royalties, declaratory judgment, attorney's fees)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Jennings, Hanks and Bland)
01-08-00180-CV Joseph Mitchell Beard v. Endeavor Natural Gas, L.P., and Tepee Petroleum Company
Appeal from 113th District Court of Harris County
Trial Court Judge: Hon. Patricia Hancock
Under § 15.011 of the Texas Civil Practice and Remedies Code, actions for recovery of real property or an
estate or interest in real property shall be brought in the county where the real property is located. Tex. Civ.
Prac. & Rem. Code Ann. § 15.011 (Vernon 2002). An oil and gas lease is an interest in real property, but this
provision applies only when ownership of the property is in dispute. Yzaguirre v. KCS Resources, 53 S.W.3d
368, 371 (Tex. 2001). As in Yzaguirre, the dispute here is not one over the boundaries of the lease or the
percentage of the royalty owners’ interest, thus the mandatory venue provision does not apply. See id.
It is an abuse of discretion for the trial court to rule on a motion to transfer venue without giving the parties
notice as required by the Rules of Civil Procedure. HCA Health Servs. of Tex., Inc. v. Salinas, 838 S.W.2d 246,
247-48 (Tex. 1992) (per curiam); Henderson v. O'Neill, 797 S.W.2d 905, 905 (Tex. 1990) (per curiam). A trial
court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding
rules or principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam).
In his first issue on appeal, Kelly argues that he was not given sufficient notice of the hearing on appellees'
separate motions to transfer venue. Kelly asserts that the trial court's order was granted and conveyed to him
only 29 days before the scheduled date of the hearing. As a result, he contends not only was he denied the
required 45 days' notice of the hearing, but it was impossible for him to timely file a response in opposition to
appellees' motions at least 30 days before the hearing. See Tex. R. Civ. P. 87(1).
Kelly v. American Interstate Insurance Co. (Tex.App.- Houston [14th Dist.] Nov. 25, 2008)(Brown)
(venue, motion to transfer venue, MTV, exhaustion of administrative remedies, plea to the jurisdiction, workers
comp, compensable injury, benefits denial, preauthorization, plea to the jurisdiction, workers comp,
compensable injury, benefits denial, preauthorization)
AFFIRMED: Opinion by Justice Jeff Brown
14-07-00083-CV Jimmy J. Kelly v. American Interstate Insurance Co., Hammerman & Gainer, Inc., and Sheryl
Butman--Appeal from 334th District Court of Harris County
Trial Court Judge: Sharon McCally
Liu v CiCi Enterprises LP (Tex.App.- Houston [14th Dist.] Jan. 9, 2007)(Opinion by Justice Guzman)
(venue, motion to transfer venue was untimely, venue vs. forum selection)
REVERSED AND REMANDED: Opinion by Justice Guzman
Before Justices Anderson, Hudson and Guzman
14-05-00827-CV Frank M. K. Liu and Edward R. Perry, Jr., Individually and on Behalf of IV Pizza, LLC v. CiCi
Enterprises, LP, Successor by Conversion to CiCi Enterprises, Inc.
Appeal from 125th District Court of Harris County (Judge John A. Coselli)
The trial court granted a motion to dismiss a Harris County suit based on a contractual provision stating that the
parties "irrevocably submit themselves to the jurisdiction of the State Courts of Dallas County, Texas . . . [and]
agree that venue for any proceeding relating to or arising out of this agreement shall be Dallas County, Texas .
. . ." Because the provision is not a mandatory forum selection clause requiring dismissal but is instead a
venue selection clause, and because venue was not timely challenged in accordance with the governing
procedural rules, we reverse and remand.
Conclusion: Because the trial court abused its discretion in granting CiCi's motion to dismiss, we reverse the
judgment of the trial court and remand for further proceedings consistent with this opinion.
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