In re Rigney Constr.
| Decision Date | 06 February 2018 |
| Docket Number | NO. 12-17-00370-CV,12-17-00370-CV |
| Parties | IN RE: RIGNEY CONSTRUCTION & DEVELOPMENT, LLC, RELATOR |
| Court | Texas Court of Appeals |
ORIGINAL PROCEEDING
MEMORANDUM OPINION
Rigney Construction and Development, LLC seeks mandamus relief from the trial court's orders refusing to transfer venue and severing the case against Brooks County Independent School District (BCISD).1 We deny the writ.
In 2014, Rigney entered into a contract (the general contract) with BCISD to construct a new school building, known as the Lasater project. This general contract contained a mandatory venue provision that required any "action" resulting from the contract be brought in the county where BCISD's administrative offices are located. Acting in its capacity as general contractor, Rigney entered into a subcontract (the subcontract) with Red Dot Building Systems for construction of a steel building. Rigney contends that the subcontract incorporated by reference the mandatory venue provision from the general contract.
On January 5, 2015, Red Dot sued Rigney in Henderson County alleging Rigney breached the subcontract by failing to pay Red Dot for its materials and work on BCISD's steel building. On February 6, Rigney sued Red Dot in Hidalgo County alleging Red Dot breached the subcontract. Red Dot and Rigney each filed motions to transfer venue. Rigney maintained thatthe Henderson County lawsuit should be transferred to Brooks County or, alternatively, to Hidalgo County. On October 22, the Henderson County court overruled Rigney's motion. The Hidalgo County court also denied Red Dot's motion to transfer venue to Henderson County. Following a petition for writ of mandamus, on December 2, 2016, the Texas Supreme Court determined that Henderson County was the court of dominant jurisdiction, and the Hidalgo County lawsuit was abated.2
In January 2016, Rigney filed a third-party petition against BCISD in the Henderson County lawsuit. The third-party petition alleged that BCISD breached the general contract by providing vague plans and specifications for construction of the school. Rigney also asserted a counterclaim against Red Dot for violations of the Deceptive Trade Practices Act, breach of contract, and accord and satisfaction.
BCISD filed a motion to transfer venue, plea to the jurisdiction, and original answer. In its motion to transfer, BCISD sought transfer of the case to Brooks County under the mandatory venue provision found in section 15.0151 of the Texas Civil Practice and Remedies Code and the terms of the general contract. BCISD argued that "Brooks County is the mandatory venue for any cause of action arising out of the Lasater Project and the parties' AIA Contracts." In the alternative, BCISD requested the third party action be severed and transferred to Brooks County.
In September 2017, the trial court granted BCISD's motion to transfer with respect to Rigney's claims against BCISD and ordered that the third party action against BCISD be severed and transferred to Brooks County. In its order on BCISD's motion to transfer, the trial court stated, "this order transferring venue in no way affects Plaintiff Red Dot Building System, Inc.'s cause of action against Defendant Rigney Construction & Development, LLC, which action shall remain in this Court under the existing cause number." This original proceeding followed.
Mandamus will issue only to correct a clear abuse of discretion for which the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court has no discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion by failing to analyze or apply the law correctly.Id. As the party seeking relief, the relator bears the burden of demonstrating entitlement to mandamus relief. Id. at 837.
An appellate remedy is adequate when any benefits to mandamus review are outweighed by the detriments. In re Prudential, 148 S.W.3d at 136. When the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate. Id. This determination is not "abstract or formulaic," but rather is a practical and prudential determination. Id. Flexibility is the principal virtue of mandamus relief and rigid rules are "necessarily inconsistent" with that flexibility. Id. Thus, the supreme court has held that "an appellate remedy is not inadequate merely because it may involve more expense or delay" than a writ of mandamus, however, the word "merely" must be carefully considered. Id. Appeal is not an adequate remedy when the denial of mandamus relief would result in an "irreversible waste of judicial and public resources." Id. at 137. The decision whether there is an adequate remedy on appeal "depends heavily on the circumstances presented." Id. The decision is not confined to the private concerns of the parties but can extend to the impact on the legal system. Id.
In its first issue, Rigney contends the trial court abused its discretion when it refused to transfer the entire lawsuit, including the claims by and against Red Dot, to Brooks County.3 Rigney argues that transfer to Brooks County is required under the terms of the mandatory venue provision in the general contract and incorporated in the subcontract.4
Rule 87 of the Texas Rules of Civil Procedure, which governs motions to transfer venue, provides that if venue has been sustained against a motion to transfer, no further motions shall be considered unless the new motion is based on a mandatory venue provision. TEX. R. CIV. P. 87(5). Therefore, the general rule is that only one venue determination may be made in a single proceeding in the same trial court. Van Es v. Frazier, 230 S.W.3d 770, 775 (Tex. App.—Waco2007, pet. denied); see also Fincher v. Wright
, 141 S.W.3d 255, 263-64 (Tex. App.—Fort Worth 2004, no pet.); In re Shell Oil Co., 128 S.W.3d 694, 696 (Tex. App.—Beaumont 2004, orig. proceeding); Marathon Corp. v. Pitzner, 55 S.W.3d 114, 137 n.6 (Tex. App.—Corpus Christi 2001), rev'd on other grounds, 106 S.W.3d 724 (Tex. 2003) (per curiam). In addition, a subsequent motion to transfer venue asserting a claim of mandatory venue is not permitted unless that claim was not available to the original movant. See TEX. R. CIV. P. 87(5); Frazier, 230 S.W.3d at 775.
A party may petition for a writ of mandamus with an appellate court to enforce mandatory venue provisions. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.0642 (West 2017); see also In re Hannah
, 431 S.W.3d 801, 806 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding) (per curiam). A party seeking to enforce a mandatory venue provision is not required to prove the lack of an adequate appellate remedy, but is required only to show that the trial court abused its discretion. In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex. 1999).
A forum-selection clause provides parties with an opportunity to contractually preselect the jurisdiction for dispute resolution. Pinto Tech. Ventures, L.P. v. Sheldon, 526 S.W.3d 428, 436 (Tex. 2017) (citing In re AIU Ins. Co., 148 S.W.3d 109, 111 (Tex. 2004) (orig. proceeding)). Forum-selection clauses are generally enforceable and presumptively valid. In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (orig. proceeding) (per curiam); In re Int'l Profit Assocs., Inc., 274 S.W.3d 672, 675 (Tex. 2009) (orig. proceeding) (per curiam). Failing to give effect to contractual forum-selection clauses and forcing a party to litigate in a forum other than the contractually chosen one amounts to "'clear harassment' . . . injecting inefficiency by enabling forum-shopping, wasting judicial resources, delaying adjudication on the merits, and skewing settlement dynamics...." In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010) (orig. proceeding) (quoting In re AutoNation, Inc., 228 S.W.3d 663, 667-68 (Tex. 2007) (orig. proceeding)). A party attempting to show that such a clause should not be enforced bears a heavy burden. In re Lyon Fin. Servs., Inc., 257 S.W.3d 228, 232 (Tex. 2008) (orig. proceeding) (per curiam) (citing In re AIU Ins. Co.
, 148 S.W.3d at 113); In re Laibe Corp., 307 S.W.3d at 316; In re ADM Inv. Servs., Inc., 304 S.W.3d 371, 375 (Tex. 2010) (orig. proceeding). A trial court abuses its discretion in refusing to enforce a forum-selection clause unless the party opposing enforcement meets its heavy burden of showing that (1) enforcement would be unreasonable or unjust, (2) the clause is invalid for reasons of fraud or overreaching, (3) enforcement wouldcontravene a strong public policy of the forum where the suit was brought, or (4) the selected forum would be seriously inconvenient for trial. In re ADM Inv. Servs., Inc., 304 S.W.3d at 375; M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15-17, 92 S. Ct. 1907, 1916-17, 32 L. Ed. 2d 513 (1972). Mandamus relief is available to enforce forum-selection agreements because there is no adequate remedy by appeal when a trial court abuses its discretion by refusing to enforce a valid forum-selection clause that covers the dispute. In re Int'l Profit Assocs., Inc., 274 S.W.3d at 675.
However, although the terms are not always used with precision, forum and venue are not synonymous. Forum pertains to the jurisdiction, generally a nation or State, where suit may be brought. See, e.g., Michiana Easy Livin' Country
, Inc. v. Holten, 168 S.W.3d 777, 784 (Tex. 2005) () (emphasis added). In contrast, venue concerns the geographic location within the forum where the case may be tried. See, e.g., Boyle v. State, 820 S.W.2d 122, 139-40 (Tex....
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