In re Regal Energy L.L.C.
| Decision Date | 19 September 2013 |
| Docket Number | NUMBER 13-13-00351-CV |
| Parties | IN RE REGAL ENERGY L.L.C., ET AL. |
| Court | Texas Court of Appeals |
On Petition for Writ of Mandamus.
MEMORANDUM OPINIONBefore Justices Rodriguez, Benavides, and Longoria
Relators, Regal Energy, L.L.C., Regal Energy Operating, L.L.C., Red River Securities, L.L.C., Brian Keith Hardwick, Terry P. Gray, Henry Jody Redlich III, John Michael Peddicord II, Scott Thomas Schaffer, Regal Nash #1 Joint Venture, Regal Nash #2 Joint Venture, Regal Boonesville #1 Joint Venture, Regal Bennett #1 Joint Venture, Regal Blessing #1 Joint Venture, and Paul Vaugh, filed a petition for writ of mandamus in the above cause on July 17, 2013, requesting that we direct the trial court to grant their motion to transfer venue of the underlying case from Nueces County to Collin County, Texas. We deny the petition for writ of mandamus.
Clifford L. Zarsky passed away on June 18, 2011. His family filed an application to probate his estate in Nueces County Court at Law Number Four, and the probate of his estate remains pending in that court. In the probate proceeding, Joyce C. Zarsky, individually and in her capacity as co-executrix of the estate, Robin Perrone, individually and in her capacity as co-executrix of the estate, and Zarsky General Partner, L.L.C. (collectively the "Zarsky parties"), brought suit against relators for alleged violations of the Texas Securities Act and the Texas Deceptive Trade Practices Act, fraud, negligence, and negligent misrepresentation. The Zarsky parties alleged that the relators induced the decedent, prior to his death, to purchase joint venture units in order to receive working interests and revenue interests in oil and gas wells in the Barnett Shale, which is located in North Texas. According to the original petition, relators "purposefully disguised the transactions as . . . joint ventures in order to evade the rules and regulations pertaining to the sale of securities in Texas," but the "substance of these transactions compared with Texas securities laws dictates that [relators were] selling securities." The Zarsky parties alleged that relators fraudulently induced the decedent to enter into the investments and transactions; however, the joint venture agreements were void due to violations of the laws regarding securities.
The "Jurisdiction and Venue" section of the Zarsky parties' petition states:
Venue is proper and this Court has jurisdiction over this matter because the matters alleged in this suit relate to a probate and estate proceeding originally filed and currently pending in this same Court. This Court has personal jurisdiction over the Defendants because they are residents of the State of Texas. This Court has subject matter jurisdiction over the claims stated herein because the damages are within the jurisdictional limits of this Court. Venue for this suit under the Deceptive Trade Practices Act (DTPA) and the other causes of action listed herein is properin Nueces County, Texas under Texas Business and Commerce Code section 17.56 and Civil Practice and Remedies Code sections 15.002, 15.033, and 15.035 in that all or a substantial part of the events or omissions giving rise to the events or omissions giving rise to the claims occurred in Nueces County, Texas.
See TEX. BUS. & COM. CODE ANN. § 17.56 (West 2011) (); TEX. CIV. PRAC. & REM. CODE ANN. § 15.002 (West 2002) (); id. § 15.033 (West 2002) (); id. § 15.035 (West 2002) ().
Relators filed a motion to transfer venue to Collin County as a "permissive and/or proper county of venue." Relators alleged that venue was permissive or proper in Collin County pursuant to the "general venue rules in Section 15.002(a) of the Texas Civil Practice and Remedies Code." See id. § 15.002. Relators specifically contended that venue was proper in Collin County because it is the county where all relators' principal offices and places of business are located, all of the relators do business there, and all actions complained of occurred there. Relators further alleged that the contractual joint venture agreements underlying their causes of action provide:
Section 12.4—Applicable Law. This Agreement and the application or interpretation hereof shall exclusively be governed by and construed in accordance with the laws of the State of Texas. This Agreement shall be deemed to be performable in and venue shall be mandatory in Plano, Texas.
Relators thus argued that "this case should be transferred to Collin County because the Plaintiffs have pled no venue facts to support venue of this suit in Nueces County, and Collin County is a permissive and/or proper county of venue." Relators supported theirmotion to transfer venue with copies of the joint venture agreements and an affidavit executed by Brian Hardwick, one of the relators.
The Zarsky parties filed a response to the motion to transfer venue which substantially reiterated the allegations in their petition regarding jurisdiction and venue. They supported their response with affidavits, pleadings, stipulations, and assorted documentation pertaining to the joint venture investments.
The trial court denied the motion to transfer venue and this original proceeding ensued. By four issues, which we address out of order, relators contend: (1) the trial court clearly abused his discretion by denying the motion to transfer venue; (2) the trial court does not have exclusive jurisdiction over this matter; (3) the mandatory venue provision of section 15.020(b) of the civil practice and remedies code requires the case to be transferred to Collin County; and (4) the mandatory venue provision in the agreement between the parties requires the case to be transferred to Collin County. The Court requested and received a response to the petition for writ of mandamus from the Zarsky parties.
Under normal standards for mandamus review, mandamus will issue only to correct a clear abuse of discretion for which the relator has no adequate remedy at law. In re Columbia Med. Ctr. of Las Colinas Subsidiary, L.P., 290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). However, section 15.0642 of the Texas Civil Practice and Remedies Code provides for mandamus relief to enforce "the mandatory venue provisions of thischapter." TEX. CIV. PRAC. & REM. CODE ANN. § 15.0642 (West 2002). When a trial court fails to grant a motion to transfer venue pursuant to mandatory venue statutes, mandamus is an available remedy and the relator is not required to show the lack of an adequate remedy by appeal. See id.; In re Transcontinental Realty Investors, Inc., 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 re Mo. Pac. R.R. Co., 998 S.W.2d 212, 215-16 (Tex. 1999) (orig. proceeding). In contrast, as a general rule, permissive venue determinations are not reviewable by mandamus. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding); see TEX. CIV. PRAC. & REM. CODE ANN. § 15.0642; In re Mo. Pac. R.R. Co., 998 S.W.2d at 215-16; In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999) (orig. proceeding). Mandamus review of permissive venue determinations is appropriate only in "extraordinary circumstances." In re Team Rocket, L.P., 256 S.W.3d at 262; In re Reynolds, 369 S.W.3d 638, 647 (Tex. App.—Tyler 2012, orig. proceeding).
We first address the Zarsky parties' assertion that relators' delay in filing this original proceeding precludes mandamus relief. Real parties assert that the trial court denied the motion to transfer venue on october 16, 2012, more than nine months ago, yet the petition for writ of mandamus was not filed until July 17, 2013.
Although mandamus is not an equitable remedy, its issuance is controlled largely by equitable principles. In re Int'l Profit Assocs., Inc., 274 S.W.3d 672, 676 (Tex. 2009) (orig. proceeding) (per curiam). one such principle is that "[e]quity aids the diligent and not those who slumber on their rights." Rivercenter Assocs. v. Rivera, 858 S.W.2d 366,367 (Tex. 1993) (orig. proceeding) (quoting Callahan v. Giles, 137 Tex. 571, 576, 155 S.W.2d 793, 795 (1941) (orig. proceeding)). To invoke the equitable doctrine of laches, the moving party ordinarily must show an unreasonable delay by the opposing party in asserting its rights and also the moving party's good faith and detrimental change in position because of the delay. In re Laibe Corp., 307 S.W.3d 314, 318 (Tex. 2010) (orig. proceeding); Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 80 (Tex. 1989). Under certain circumstances, a delay in the filing of a petition for writ of mandamus may be justified. In re Int'l Profit Assocs., Inc., 274 S.W.3d at 676; see In re SCI Tex. Funeral Servs., Inc., 236 S.W.3d 759, 761 (Tex. 2007) (orig. proceeding) ( that a delay of slightly less than six months did not constitute laches because the time was required to obtain records of numerous discovery hearings and brief issues for court).
Real parties do not assert that they have suffered a detrimental change in their position due to relators' delay. Accordingly, while we view the nine-month period of delay in this case with a jaundiced eye, we conclude that the delay alone does not preclude mandamus review. See In re Laibe Corp., 307 S.W.3d at 318. We therefore reject real parties' argument that equitable considerations bar the granting of relief on this petition for writ of mandamus. We now turn to the merits of this original...
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