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In re Philadelphia Indemnity Insurance Co.

Court of Appeals of Texas, Twelfth District, Tyler

May 24, 2017

IN RE: PHILADELPHIA INDEMNITY INSURANCE COMPANY, RELATOR
v.
HON. DAN MOORE, Respondent

         ORIGINAL PROCEEDING

         Appeal from the 173rd District Court of Henderson County, Texas (Tr.Ct. No. CV15-0009-173)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          BRIAN HOYLE, JUSTICE

         Philadelphia Indemnity Insurance Company seeks mandamus relief from the trial court's order denying its motion to transfer venue.[1] We conditionally grant the writ.

         Background

         In 2014, Red Dot Buildings and Rigney Construction and Development, L.L.C. entered into a subcontract related to the construction of a school in Brooks County, Texas. Red Dot secured a payment bond from Philadelphia for the project in accordance with Chapter 2253 of the Texas Government Code.

         When a dispute subsequently arose between Red Dot and Rigney, Red Dot sued for breach of contract. Rigney moved to transfer venue to Hidalgo County. The trial court denied the motion. Red Dot also made a payment bond claim with Philadelphia. In its first amended petition, Red Dot brought Philadelphia into the lawsuit under Chapter 2253 of the Texas Government Code. Philadelphia filed a motion to transfer venue with its original answer, asserting that the case must be transferred to Brooks County under section 2253.077 of the government code. Citing that venue had been determined before Philadelphia was a party, the trial court denied Philadelphia's motion to transfer. This original proceeding followed.

         Availability of Mandamus

         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.

         In this case, Philadelphia seeks the enforcement of section 2253.077 of the Texas Government Code, which is mandatory in nature. See Poth Corp. v. Marble Falls Indep. Sch. Dist, 673 S.W.2d 648, 651 (Tex. App.-Austin 1984, no writ). 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).

         Abuse of Discretion

         In its only issue, Philadelphia contends that the trial court abused its discretion when it denied the motion to transfer venue. Philadelphia argues that the transfer to Brooks County is mandatory under section 2253.077 of the government code.[2]

         Rule 87 of the Texas Rules of Civil Procedure governs motions to transfer venue. See Tex. R. Civ. P. 87. It 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-Waco 2007, 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 ...


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