In re Wildcat Midstream Holdings Ii, LLC
| Decision Date | 15 November 2017 |
| Docket Number | NUMBER 13-17-00522-CV |
| Parties | IN RE WILDCAT MIDSTREAM HOLDINGS II, LLC, WMH CORPUS I, LLC, WMH CORPUS LAND ACQUISITION I, LLC, WMH CORPUS LAND ACQUISITION II, LLC, AND WMH CORPUS LAND ACQUISITION III, LLC |
| Court | Texas Court of Appeals |
On Petition for Writ of Mandamus.
MEMORANDUM OPINIONBefore Chief Justice Valdez and Justices Contreras and Hinojosa
1
Relators Wildcat Midstream Holdings II, LLC, WMH Corpus I, LLC, WMH Corpus Land Acquisition I, LLC, WMH Corpus Land Acquisition II, LLC, and WMH Corpus Land Acquisition III, LLC filed a petition for writ of mandamus seeking relief from the trial court's denial of their motion to transfer venue from Nueces County to San Patricio County based on mandatory venue regarding land. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.011 (West, Westlaw through 2017 1st C.S.).2 We conditionally grant mandamus relief.
Plaintiff and real party in interest Express Midstream Services, LLC (Express) brought suit against relators, Prairie Dog Partners LLC, and Jeff Reynolds alleging multiple causes of action relating to three tracts of land.3 Express had planned to construct an oil terminal and related infrastructure on the properties and it contacted these defendants to propose investment in and development of the project. Ultimately, the project fell through and Express sued these defendants for, inter alia, breach of contract, tortious interference with contract, breach of fiduciary duty, fraud, conversion, and civil conspiracy. Express sought title to the three tracts of land, or alternatively, compensation including punitive and exemplary damages. Express filed this suit in Nueces County, Texas based on allegations that a substantial part of the acts or omissions giving rise to its claims occurred there. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.002 (West, Westlaw through 2017 1st C.S.).
Relators filed a motion to transfer venue to Dallas County on the grounds that the majority of the meetings and discussions between the parties occurred there, and that was where a defendant's principal office was located. Express filed an amended response and a supplemental response to the motion to transfer venue. On March 27, 2017, the motion to transfer venue was set for hearing on May 17, 2017. On May 10, 2017, relators filed an amended motion to transfer venue to San Patricio County on grounds that the land at issue in the lawsuit was located there, and thus venue was mandatory in that county. See id. § 15.011. In the alternative, relators sought transfer of the case to Dallas County on grounds that their principal offices were located there. Relators specifically denied all of Express's venue facts pertaining to Nueces County. Also on May 10, 2017, relators filed a memorandum of law in support of their amended venue motion.
The trial court held a non-evidentiary hearing on the motion to transfer venue on May 17, 2017. On May 23, 2017, Express submitted a post-submission brief in opposition to the relators' motion to transfer venue. On May 26, 2017, relators filed a reply in support of their amended motion to transfer venue. On June 1, 2017, Express filed a post-submission reply to relators' reply. That same day, the trial court sent an email to the parties which stated that it "appears . . . that the real property is incidental to the business dispute" and there were "enough contacts in Nueces County for this court to maintain venue of the matter." The trial court stated that the motions to transfer venue were denied and requested that the parties submit an order to the court. On June 2, 2017, the trial court denied relators' request to transfer venue by written order.
This original proceeding ensued. By one issue, relators assert that the trial court abused its discretion by denying their motion to transfer venue to San Patricio County. This Court requested and received a response to the petition for writ of mandamus from Express and further received a reply from relators to Express's response. See TEX. R. APP. P. 52.2, 52.4, 52.8.
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) (West, Westlaw through 2017 1st C.S.); TEX. R. CIV. P. 87(6) (). Section 15.0642 of the civil practice and remedies code, however, provides for mandamus relief to enforce certain mandatory venue provisions. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.0642 (West, Westlaw through 2017 1st C.S.); In re Transcon. Realty Inv'rs, 271 S.W.3d 270, 271 (Tex. 2008) (orig. proceeding) (per curiam); In re Tex. Dep't of Transp., 218 S.W.3d 74, 76 (Tex. 2007) (orig. proceeding); In re Freestone Underground Storage, Inc., 429 S.W.3d 110, 113 (Tex. App.—Texarkana 2014, orig. proceeding). When a relator seeks to enforce a mandatory venue provision, the relator is not required to prove that it lacks an adequate appellate remedy and is only required to show that the trial court clearly abused its discretion by failing to transfer the case. See In re Lopez, 372 S.W.3d 174, 176 (Tex. 2012) (orig. proceeding) (per curiam); In re Mo. Pac. R.R., 998 S.W.2d 212, 215-16 (Tex. 1999) (orig. proceeding); In re Signorelli Co., 446 S.W.3d 470, 473 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding). The only issue presented in such cases is whether the trial court properly interpreted the mandatory venue provision. In re Transcon. Realty Inv'rs, 271 S.W.3d at 270; In re Tex. Ass'n of Sch. Bds., 169 S.W.3d 653, 656 (Tex. 2005) (orig. proceeding).
In an original proceeding 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); In re Signorelli Co., 446 S.W.3d at 473. 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., 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 Cty., 278 S.W.3d 842, 843 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding).
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); In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999) (orig. proceeding); GeoChem Tech Corp., 962 S.W.2d at 544 The plaintiff may file suit in any permissible county or, in the case of mandatory venue provisions, in the county mandated by statute. Wilson v. Tex. Parks & Wildlife Dep't, 886 S.W.2d 259, 260 (Tex. 1994); Kshatrya v. Tex. Workforce Comm'n & Riddle Techs., 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. R. 86(3)(b). A party must establish mandatory venue by prima facie proof. Id. R. 87(3)(a). "Prima facie proof is made when the venue facts are properly pleaded and an affidavit, and any duly proved attachments to the affidavit, are filed fully and specifically setting forth the facts supporting such pleading." Id. This prima facie proof is not subject to rebuttal, cross-examination, impeachment, or disproof. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993); Shamoun & Norman, LLP v. Yarto Int'l Grp. LP, 398 S.W.3d 272, 287 (Tex. App.—Corpus Christi 2012, pet. dism'd) (op. on reh'g). 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. Wichita Cty. v. Hart, 917 S.W.2d 779, 781 (Tex. 1996); Spin Doctor Golf, Inc. v. Paymentech, LP, 296 S.W.3d 354, 357 (Tex. App.—Dallas 2009, pet. dism'd); Morris v. Tex. Parks & Wildlife Dep't, 226 S.W.3d 720, 723 (Tex. App.—Corpus Christi 2007, no pet.).
In the instant case, Express asserts that relators did not seek a transfer of venue based on mandatory venue regarding land in their original motion to transfer venue and their amended motion to transfer venue, which included this new and different ground for transfer, was not filed until seven days prior to the date of hearing on venue. Express asserts that the amended motion was untimely because Rule 87(1) requires forty-five days' notice of the hearing on the motion to transfer venue; thus the amended motion was not properly before the trial court for consideration.
We disagree with Express's contention. It is true that each party is entitled to at least forty-five days' notice of a hearing on the motion to transfer. See TEX. R. CIV. P. 87(1) (). However, the venue scheme expressly contemplates that motions to transfer may be amended, and further contemplates that the movant may file a reply and additional affidavits "not later than seven days prior to the hearing date." See id. R. 86(3) (); id. R. 87(1) (...
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