Court of Appeals of Texas, Ninth District, Beaumont
IN RE BESTEST, INC. AND JOSHUA ALAN JORDAN
Submitted on December 4, 2017
Proceeding 136th District Court of Jefferson County, Texas
Trial Cause No. D-199, 594
McKeithen, C.J., Horton and Johnson, JJ.
original mandamus proceeding, we must decide whether the
trial court clearly abused its discretion by refusing to rule
on a defendant's motion to transfer venue until after the
parties complete discovery and mediation. We hold that the
trial court clearly abused its discretion. Because no
adequate appellate remedy exists, we conditionally grant
Jarod Johnson Jr. died in a motor vehicle collision on June
17, 2016. Holly D. Johnson filed a wrongful death suit in
Jefferson County, Texas, against BesTest, Inc., Joshua Alan
Jordan, Jarod Lawrence Johnson and Refractory Construction
Services Co., LLC. Her pleadings allege that at the time of
the collision Jordan was in the scope of his employment with
BesTest and Johnson was in the scope of his employment with
Refractory. She alleged that venue is proper in Jefferson
County pursuant to section 15.002(a)(3) of the Civil Practice
and Remedies Code. See Tex. Civ. Prac. & Rem.
Code Ann. § 15.002(a)(3) (West 2017).
March 31, 2017, BesTest and Jordan jointly filed a motion to
transfer venue. They alleged that the accident occurred in
Liberty County, the plaintiff resides in Liberty County,
Jordan resides in Hardin County, BesTest has its principal
place of business in Lee County, and Refractory has its
corporate office in Galveston County. They specifically
denied the plaintiff's contention that Refractory
Construction Services Co., LLC does business in Jefferson
County, Texas at their corporate offices in Nederland, Texas.
They requested that the case be transferred to Galveston
County. On June 20, 2017, a deposition was taken of Thomas
Vaughn, the Beaumont Area Manager for Refractory.
to the parties, the trial court initially heard the motions
to transfer on July 10, 2017. On October 5, 2017, BesTest and
Jordan filed a motion for a ruling on their motion to
transfer venue. They alleged no further venue discovery was
required and argued that Rule 87 of the Texas Rules of Civil
Procedure requires that the trial court determine a motion to
transfer venue promptly. Holly Johnson filed a response and
moved for entry of a docket control order. Citing excerpts
from Vaughn's deposition, she argued in part that
Refractory has a principal office in Jefferson County.
Additionally, she argued that additional time was required
for discovery, including the deposition of the corporate
representative/venue witness for BesTest, and to review venue
relevant documentation. The proposed docket control order
would require alternative dispute resolution to conclude by
February 1, 2018, and set a trial date of April 9, 2018.
October 17, 2017, the trial court conducted a hearing on the
motion for a ruling. The trial court discussed setting the
case for a trial in May 2018. Refractory's counsel agreed
to having the trial court keep Refractory's motion to
transfer under advisement, and requested time to submit
additional briefing concerning transferring an entire case to
a county of proper venue. The trial court suggested,
"I'm willing to kind of, I guess, grant some leeway
or latitude if everybody is on board with that and then see
how the rest of the discovery unfolds." The trial court
suggested that after mediation they could ask for a status
conference and obtain a ruling on the motion to transfer at
that time. During the October hearing, counsel for BesTest
and Jordan did not voice an objection to the trial
court's decision to delay ruling on their motion to
hearing held November 13, 2017, BesTest and Jordan requested
a ruling on their motion to transfer. Counsel explained that
the trial court had not considered their motion for a ruling
during the October 17 hearing. The trial court explained that
he decided to postpone ruling on the motion to transfer
because one of the defendants had waived venue and additional
discovery would assist the court in determining whether to
sever the case and send the defendants to different counties.
Reasoning that the best time for mediation was after
discovery was complete, the trial court ruled that it would
not rule on the motion to transfer until after the parties
submitted to mediation. Counsel for Refractory reminded the
trial court that he had obtained permission to submit
additional briefing and informed the trial court that he had
filed the brief.
response to the mandamus petition, Holly Johnson suggests a
delay of four to six months is not unreasonable, that the
trial court properly considered Relators' silence and
Refractory's consent to delaying a ruling in the October
17 hearing, and that delaying a ruling on the motion to
transfer until after discovery and mediation is completed is
neither arbitrary nor unreasonable because an immediate
ruling on the motion to transfer venue "had the
potential to create a procedural and logistical nightmare
caused by two different trials in two different counties
regarding the conduct of the same parties in the same motor
court commits a clear abuse of discretion when it refuses to
rule on a pending motion within a reasonable amount of time.
See In re Greenwell, 160 S.W.3d 286, 288 (Tex.
App.-Texarkana 2005, orig. proceeding) (mandamus relief
conditionally granted when trial court refused to rule on a
motion for partial summary judgment before trial). What is
considered a reasonable amount of time is dependent upon the
circumstances of each case. In re Shredder Co.,
L.L.C., 225 S.W.3d 676, 679 (Tex. App.-El Paso 2006,
orig. proceeding) (mandamus relief conditionally granted when
motion to compel arbitration was left pending approximately
considering what is considered a reasonable time under the
circumstances of this case, it is significant that the matter
under the trial court's advisement is a motion to
transfer venue. "The determination of a motion to
transfer venue shall be made promptly by the court and such
determination must be made in a reasonable time prior to
commencement of the trial on the merits." Tex.R.Civ.P.
87.1. Three months after the parties submitted their venue
affidavits and after the trial court took the matter under
advisement, BesTest and Jordan complained that the trial
court had failed to determine their motion to transfer
promptly. On November 13 when BesTest and Jordan requested a
ruling, it appears the trial court had before it all the
information required to consider the merits of the venue
issue, which concerned whether Refractory had a principal
office in Jefferson County. The trial court's stated
reason to further delay its decision on the motion to
transfer venue for several additional months does not concern
the merits of the venue issue. Rather, it is based solely on
speculation that one of the defendants might settle or be
non-suited from the case. Under the record before us, we
conclude that the trial court abused its discretion by
failing to determine venue promptly, as required by the
applicable rule. See id.; see also Walker v.
Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).
In re Masonite Corporation, Holly Johnson argues
that Relators have not established that they lack an adequate
remedy by appeal because permissive venue determinations are
properly reviewed on appeal following judgment on the merits.
See In re Masonite Corp., 997 S.W.2d 194, 197 (Tex.
1999) (orig. proceeding). In Masonite Corporation,
the appellate court acknowledged that permissive venue
rulings are typically reviewed on appeal, but granted
mandamus relief because the trial court's erroneous venue
ruling burdened other courts. Id. at 198-99.
Nevertheless, mandamus may properly be employed to correct
improper venue procedure. In re Shell Oil Co., 128
S.W.3d 694, 696 (Tex. 2004). The trial court's refusal to
rule promptly, as required by Rule 87, is an error of venue
procedure. See Tex. R. Civ. P. 87.1. In ...