in Re Newpark Mats and Integrated Services, LLC and Tom Joines

• Court: Court of Appeals of Texas
• Decided: January 19, 2015
• Docket: 09-14-00518-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-14-00518-CV ____________________

IN RE NEWPARK MATS AND INTEGRATED SERVICES, LLC AND TOM JOINES

_______________________________________________________ ______________

Original Proceeding ________________________________________________________ _____________

MEMORANDUM OPINION

Newpark Mats and Integrated Services, LLC and Tom Joines (collectively,

Newpark) filed a petition for a writ of mandamus to compel the 60th District Court

to transfer venue of the underlying case to Harris County, Texas. See Tex. Civ.

Prac. & Rem. Code Ann. § 15.0642 (West 2002). Newpark contends the trial court

abused its discretion by failing to enforce a mandatory venue agreement found in

its contract with the plaintiff, Kilgore Construction, LLC, d/b/a Kilgore Industrial.

According to Newpark, the venue provision in the parties’ agreement is

enforceable under the major transaction statute. See id. § 15.020 (West Supp.

1 2014) (“In this section, ‘major transaction’ means a transaction evidenced by a

written agreement under which a person pays or receives, or is obligated to pay or

entitled to receive, consideration with an aggregate stated value equal to or greater

than $1 million.”).

The record before the trial court indicates that Kilgore Construction signed

an application for extension of credit in favor of Newpark to allow Kilgore to rent

equipment, oil field mats. The contract does not expressly state how much credit

the parties contemplated that Newpark might extend to Kilgore under the

agreement. The parties’ contract includes a venue provision, fixing venue for

disputes arising out of the agreement in Harris County.

Newpark concedes that Kilgore owed it less than one million dollars when

Kilgore filed its suit, but it contends that all of Kilgore’s credit transactions with

Newpark after the parties entered into contract should be aggregated in calculating

the value of the contract. According to Newpark, the parties’ dispute qualifies as a

major transaction because between September 2012 and September 2013, Kilgore

paid Newpark $1,024,204.24, and Kilgore owed Newpark an additional

$658,857.54 when Kilgore filed suit. Thus, Newpark contends the aggregate value

of the contract is approximately $1,683,000.

2 In response to the petition, Kilgore contends the business that it did with

Newpark under the agreement at issue does not qualify as a “major transaction.”

According to Kilgore, the credit application that it signed in Newpark’s favor does

not expressly require Newpark to loan it one million dollars, nor does the

agreement contain a provision expressly stating the aggregate value of the credit

that Kilgore was entitled to receive. According to Kilgore, the agreement at issue

contains no “aggregate stated value;” it concludes that given the Legislature’s

definition for a “major transaction,” its various transactions with Newpark do not

qualify under the statute as a “major transaction.” See id. § 15.020.

After carefully reviewing the petition, the mandamus record, the response,

and the reply, we conclude that Newpark has not established the trial court clearly

abused its discretion in the manner it applied the definition the Legislature gave the

term “major transaction” to Newpark’s motion challenging Kilgore’s choice of

venue. See In re Fisher, 433 S.W.3d 523, 530 (Tex. 2014) (utilizing a common

sense analysis to determine whether section 15.020 applies); In re Togs Energy,

Inc., No. 05-09-01018-CV, 2009 WL 3260910, at *1 (Tex. App.—Dallas Oct. 13,

2009, orig. proceeding) (mem. op.) (providing that the aggregate stated value of

the consideration must be stated in the agreement for section 15.020 to apply).

Accordingly, we deny the petition for writ of mandamus.

3 PETITION DENIED.

PER CURIAM

Submitted on December 15, 2014 Opinion Delivered January 15, 2015

Before Kreger, Horton, and Johnson, JJ.