IN RE ADAN VOLPE PROPERTIES, LTD.
| Decision Date | 12 February 2010 |
| Docket Number | No. 13-09-00443-CV.,13-09-00443-CV. |
| Citation | 306 SW 3d 369 |
| Parties | In re ADAN VOLPE PROPERTIES, LTD. and Maricela Volpe as General Partner. |
| Court | Texas Court of Appeals |
Juan A. Gonzalez, Ricardo G. Benavides, McAllen, for Relators.
Jesus Guillen, Luis Antonio Figueroa, Law Office of Luis Antonio Figueroa, Laredo, Julian C. Gomez, The Gomez Law Firm, PLLC, McAllen, Roel R. Trevino, Pharr, for Real Parties in Interest.
Before Justices RODRIGUEZ, GARZA, and VELA.
By petition for writ of mandamus, relators, Adan Volpe Properties, Ltd. ("AVP") and Maricela Volpe as general partner, challenge an order of the trial court transferring venue based on the mandatory venue provision governing suits for injunction. See TEX. CIV. PRAC. & REM.CODE ANN. § 65.023 (Vernon 2008). As stated herein, we conditionally grant the petition for writ of mandamus.
In approximately 2003, Donato Volpe Jr., represented by Eustorgio Perez, brought suit against AVP, Maricela Volpe, and Diana E. Volpe in the 111th District Court of Webb County. Donato sought rescission of a purchase and sale agreement wherein he sold his share of the AVP partnership to AVP. According to his first amended petition, Donato lacked the mental capacity to enter into the purchase and sale agreement, and the defendants, through constructive fraud and mental coercion, used their familial relationship and status as his partners to take advantage of him and force the sale. Ultimately, the parties agreed to have the matter arbitrated pursuant to the terms of the partnership agreement.
The trial court appointed Luis Antonio Figueroa to serve as arbitrator and dismissed the case by order signed on May 17, 2005. Nevertheless, the matter did not immediately proceed to arbitration. The 111th District Court of Webb County set this cause on its "dismissal docket" on October 7, 2005, despite the fact that the cause had already been dismissed. The parties appeared and discussed the procedural history of the case with the trial court, who instructed the court coordinator to remove the case from the court's docket.
More than three years later, on September 5, 2008, Figueroa sent the parties correspondence attempting to set the matter for arbitration. AVP and Maricela refused to recognize Figueroa's authority to serve as arbitrator and refused to participate in arbitration given the "long passage of time."
On January 20, 2009, AVP and Maricela filed suit against real parties in interest, Donato, Perez, and Figueroa, in the 332nd District Court of Hidalgo County, Texas, bringing causes of action for fraud, breach of fiduciary duty, conspiracy, defamation and libel, intentional infliction of emotional distress, invasion of privacy, and racketeering. The petition sought a declaratory judgment, a temporary restraining order, a temporary injunction, a permanent injunction, and actual and exemplary damages. AVP and Maricela alleged that:
Venue is proper in Hidalgo County, Texas as all or a substantial part of the events or omissions giving rise to the claim occurred herein. CPRC 15.002. Further, venue is proper as Hidalgo County is the principal place of business of Adan Volpe Properties, Ltd. and the residence of Maricela Volpe, its General Partner. Plaintiffs herein allege libel, slander and invasion of privacy. CPRC section 15.017. Further, venue is proper in Hidalgo County under the liberal venue provisions of 18 U.S.C. sec. 1961-68, the Civil RICO statute, as well as 18 U.S.C. sec. 1965(b). Finally, venue is proper in Hidalgo County, Texas as the injunctive relief sought is ancillary to the tort and other claims made in this suit.
Donato, Perez, and Figueroa each filed motions to transfer venue contending that mandatory venue exists in Webb County under section 65.023 of the civil practice and remedies code, which is the mandatory venue provision for suits seeking injunctive relief. See TEX. CIV. PRAC. & REM.CODE ANN. § 65.023. The trial court granted the motions to transfer and specifically transferred venue to the 111th District Court of Webb County. This original proceeding ensued.1
The general rule is that a venue ruling is not a final judgment ripe for appeal. See TEX. CIV. PRAC. & REM.CODE ANN. § 15.064(a) (Vernon 2002); TEX.R. CIV. P. 87(6) (). However, section 15.0642 of the civil practice and remedies code provides for mandamus relief to enforce a mandatory venue provision:
TEX. CIV. PRAC. & REM.CODE ANN. § 15.0642 (Vernon 2002); In re Transcon. Realty Investors, 271 S.W.3d 270, 271 (Tex.2008) (orig. proceeding); In re Tex. Dep't of Transp., 218 S.W.3d 74, 76 (Tex.2007) (orig. proceeding). In these circumstances, the relator is not required to show the lack of an adequate remedy by appeal. In re Mo. Pac. R.R., 998 S.W.2d 212, 215-16 (Tex.1999) (orig. proceeding). The only issue presented in such cases is the legal question regarding whether the trial court properly interpreted the mandatory venue provision. In re Transcon. Realty Investors, 271 S.W.3d at 271; In re Tex. Ass'n of Sch. Bds., Inc., 169 S.W.3d 653, 656 (Tex.2005) (orig. proceeding).
Real parties in interest contend that this Court lacks jurisdiction over this original proceeding. Citing In re Team Rocket, L.P., 256 S.W.3d 257, 260 (Tex. 2008) (orig. proceeding), real parties in interest argue that "after granting a motion to transfer venue, the transferring court and its corresponding court of appeals lose their jurisdiction thirty days after the order because a transfer order is a final order for the transferring court." Real parties further contend a motion for reconsideration does not affect this deadline and that relators have not timely filed their petition for writ of mandamus.
We disagree with real parties' application of Team Rocket to the facts herein. In Team Rocket, the Texas Supreme Court considered the narrow issue regarding "whether a plaintiff who was denied his initial venue of choice can nonsuit his case in the transferee county and refile in a third county." Id. at 258. The supreme court concluded that once a ruling is made on venue, that decision becomes final and cannot be vitiated by nonsuiting and refiling. See id. at 260. In reaching this conclusion, the supreme court considered the doctrine that while "a trial court's ruling transferring venue is interlocutory for the parties, and thus not subject to immediate appeal, the order is final for the transferring court as long as it is not altered within the court's thirty day plenary jurisdiction." Id. This doctrine is simply not applicable to the case herein, where we review a trial court's ruling based on mandatory venue by original proceeding, and not appeal, and moreover, where relators have been provided a specific statutory deadline for filing a petition for writ of mandamus. See TEX. CIV. PRAC. & REM.CODE ANN. § 15.0642. Accordingly, we proceed to review the merits of this original proceeding.
In a mandamus regarding the application of mandatory venue, the appellate court reviews the trial court's ruling on a motion to transfer for an abuse of discretion. In re Applied Chem. Magnesias Corp., 206 S.W.3d 114, 117 (Tex.2006) (orig. proceeding). A trial court has no discretion in determining what the law is or in applying the law to the facts. See In re Mo. Pac. R.R. Co., 998 S.W.2d at 216. A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig. proceeding) (per curiam); In re Fort Bend County, 278 S.W.3d 842, 843 (Tex.App.-Houston 14th Dist. 2009, orig. proceeding). The trial court has no discretion in determining the legal principles controlling its ruling or in applying the law to the facts. In re Mo. Pac. R.R. Co., 998 S.W.2d at 216. In determining whether venue was or was not proper, the appellate court reviews the entire record, including the trial on the merits, if applicable. See TEX. CIV. PRAC. & REM.CODE ANN. § 15.064(b) (Vernon 2002); Wilson v. Tex. Parks & Wildlife Dep't, 886 S.W.2d 259, 261 (Tex.1994).
Venue may be proper in more than one county under the general, mandatory or permissive venue rules. See GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 544 (Tex.1998). The plaintiff is given the first choice of the venue in which to file suit, but upon challenge by the defense, bears the burden to prove venue is maintainable in that county. TEX.R. CIV. P. 87(2)(a); see also GeoChem, 962 S.W.2d at 544; In re Masonite Corp., 997 S.W.2d 194, 197 (Tex.1999) (orig. proceeding). The plaintiff files suit in any permissible county or, in the case of mandatory venue provisions, in the county mandated by statute. Wilson, 886 S.W.2d at 260; Kshatrya v. Tex. Workforce Comm'n., 97 S.W.3d 825, 830 (Tex.App.-Dallas 2003, no pet.).
A defendant raises the question of proper venue by objecting to a plaintiff's venue choice through a motion to transfer venue. See TEX.R. CIV. P. 86. A defendant may move to transfer venue on grounds that mandatory venue lies in a different county. Id. 86(3)(b). A party must establish mandatory venue by prima facie proof. Id. 87(3)(c). If a plaintiff's chosen venue rests on a permissive venue statute and the defendant files a meritorious motion to transfer based on a mandatory venue provision, the trial court must grant the motion....
To continue reading
Request your trial