In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-22-00225-CV
IN RE NOBEL LEAF HOLDINGS, LLC, RELATOR
ORIGINAL PROCEEDING
January 3, 2023 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
In this original proceeding, Relator, Nobel Leaf Holdings, LLC (“Nobel”), seeks a
writ of mandamus ordering Respondent, the Honorable Danah Zirpoli, judge of the 64th
District Court of Castro County, Texas, to vacate an order denying Nobel’s motion to
transfer venue and to render an order transferring the case to Lubbock County. At our
request, Real Party in Interest, First United Bank, filed a response. Nobel filed a reply.
As an additional issue, the Bank argues we lack mandamus jurisdiction because
Nobel’s petition was not timely filed and because Respondent did not rule on Nobel’s
motion to transfer venue. We disagree with the Bank’s jurisdictional challenge. Because we conclude the record does not establish a clear abuse of discretion by Respondent, we
deny Nobel’s petition.
Background
This case, pending in Castro County district court, involves the Bank’s efforts to
collect on notes claimed to be in default and to recover equipment said to be subject to a
perfected security interest made in favor of the Bank. On March 30, 2022, the Bank
amended its pleading to add Nobel as a party, although issuance of citation was not
requested at that time.1
At some point not established in the record before us, the Bank had moved for
Respondent to issue a temporary injunction, consideration of which was set for hearing
on April 21, 2022. Two days before the hearing, Nobel filed an objection and motion to
transfer venue in a document that also included its original answer and counterclaim.
Nobel alleged that venue was mandatory in Lubbock County pursuant to Texas Civil
Practice and Remedies Code section 15.011 because some of the equipment claimed to
be collateral constituted fixtures.2 Nothing in the mandamus record indicates that Nobel
filed a motion to continue the injunction hearing.
At the commencement of the temporary injunction hearing, Nobel’s counsel
announced his appearance and told Respondent he had a “preliminary matter.” For the
first time, counsel orally requested a setting on Nobel’s objection to venue and asked
1 The Bank alleged its rights in the equipment are superior to Nobel’s and that Nobel intentionally
interfered with the Bank’s contracts with the borrower. 2 Nobel also alleged the Bank’s lawsuit was between a landlord and tenant arising under a lease, although that argument is not advanced in this proceeding.
2 “that this matter be delayed or reset until we can make a determination on venue.” After
hearing argument about the due order of hearing the matters and whether Nobel’s “venue
motion” was supported by verification or proof, Respondent ruled:
THE COURT: Okay. Thank you. Okay. Counsel, I will deny that motion at this time. We will move forward for the hearing on the temporary injunction.
On May 11, 2022, Respondent signed an order granting temporary injunctive relief and
set the case for trial for September 22, 2022. The same day, Nobel filed a notice of
interlocutory appeal seeking review of the temporary injunction. The interlocutory appeal
was later voluntarily dismissed,3 but Nobel initiated the present original proceeding
petition in this Court in July 2022.
Analysis
Jurisdiction
We begin with the Bank’s argument that we lack jurisdiction because Nobel’s
petition for mandamus was not timely filed and because its complaint was not preserved
by a trial court ruling.
Section 15.0642 of the Texas Civil Practice and Remedies Code allows a party to
challenge a mandatory venue determination by mandamus. TEX. CIV. PRAC. & REM. CODE
ANN. § 15.0642. The petition must be filed before the later of “the 90th day before the
date the trial starts” or the tenth day after the date the party receives notice of the trial
3 See Nobel Leaf Holdings, LLC v. First United Bank, No. 07-22-00145-CV, 2022 Tex. App. LEXIS 5317 (Tex. App.—Amarillo July 27, 2022, no pet.) (per curiam) (mem. op.) (granting Nobel’s motion for voluntary dismissal of interlocutory appeal).
3 setting. Id. The Bank interprets this section to mean that trial “starts” on the date included
in the trial setting order, meaning Nobel should have sought mandamus relief on or before
June 24, 2022 (90 days before September 22, 2022). We disagree with the Bank’s
position that the trial court’s setting order affixes a deadline for Nobel’s petition. Moreover,
even if the Bank’s position was correct, we have no indication that trial began on
September 22.
The Bank also contends Respondent never ruled on Nobel’s motion to transfer
venue.4 However, the reporter’s record from the April 21, 2022 hearing indicates the trial
court expressly referred to the “venue motion” in its discussion with the attorneys and
before ruling it was denying “that motion at this time.” We find suitable support in the
record that Respondent knew what she was considering when denying “that motion at
this time,” and therefore reject the Bank’s jurisdictional arguments.
Nobel’s Petition
Nobel asserts Respondent possessed no discretion to refuse to transfer the suit
from Castro County to Lubbock County pursuant to section 15.011 of the Civil Practice
and Remedies Code. A writ of mandamus generally issues only to (1) correct a clear
abuse of discretion (2) for which the relator has no adequate appellate remedy. See In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
However, when a party brings a mandamus petition to seek to enforce a mandatory venue
determination, it must only prove that the respondent abused its discretion. See TEX. CIV.
4In the same section of its responsive brief, the Bank also contends Nobel failed to “preserve a complaint for appellate review.” The Bank fails to present any authority showing how this alleged failure somehow implicates this Court’s jurisdiction.
4 PRAC. & REM. CODE ANN. § 15.0642; In re Missouri Pac. R.R. Co., 998 S.W.2d 212, 216
(Tex. 1999) (orig. proceeding) (“adequacy of an appellate remedy is not a requisite of a
mandatory venue mandamus under section 15.0642.”).
Motions to transfer venue are governed by Texas Rule of Civil Procedure 87.1. It
states in relevant part:
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. The movant has the duty to request a setting on the motion to transfer. Except on leave of court each party is entitled to at least 45 days notice of a hearing on the motion to transfer.
TEX. R. CIV. P. 87.1. When a court grants a motion to transfer without giving the
responding party sufficient notice under the rules, it abuses its discretion. Henderson v.
O’Neill, 797 S.W.2d 905 (Tex. 1990). The mandamus record plainly reflects, and Nobel
conceded in the trial court’s hearing, that less than forty-five days had passed before
Nobel sought to have the motion to transfer heard. We therefore disagree with Nobel’s
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-22-00225-CV
IN RE NOBEL LEAF HOLDINGS, LLC, RELATOR
ORIGINAL PROCEEDING
January 3, 2023 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
In this original proceeding, Relator, Nobel Leaf Holdings, LLC (“Nobel”), seeks a
writ of mandamus ordering Respondent, the Honorable Danah Zirpoli, judge of the 64th
District Court of Castro County, Texas, to vacate an order denying Nobel’s motion to
transfer venue and to render an order transferring the case to Lubbock County. At our
request, Real Party in Interest, First United Bank, filed a response. Nobel filed a reply.
As an additional issue, the Bank argues we lack mandamus jurisdiction because
Nobel’s petition was not timely filed and because Respondent did not rule on Nobel’s
motion to transfer venue. We disagree with the Bank’s jurisdictional challenge. Because we conclude the record does not establish a clear abuse of discretion by Respondent, we
deny Nobel’s petition.
Background
This case, pending in Castro County district court, involves the Bank’s efforts to
collect on notes claimed to be in default and to recover equipment said to be subject to a
perfected security interest made in favor of the Bank. On March 30, 2022, the Bank
amended its pleading to add Nobel as a party, although issuance of citation was not
requested at that time.1
At some point not established in the record before us, the Bank had moved for
Respondent to issue a temporary injunction, consideration of which was set for hearing
on April 21, 2022. Two days before the hearing, Nobel filed an objection and motion to
transfer venue in a document that also included its original answer and counterclaim.
Nobel alleged that venue was mandatory in Lubbock County pursuant to Texas Civil
Practice and Remedies Code section 15.011 because some of the equipment claimed to
be collateral constituted fixtures.2 Nothing in the mandamus record indicates that Nobel
filed a motion to continue the injunction hearing.
At the commencement of the temporary injunction hearing, Nobel’s counsel
announced his appearance and told Respondent he had a “preliminary matter.” For the
first time, counsel orally requested a setting on Nobel’s objection to venue and asked
1 The Bank alleged its rights in the equipment are superior to Nobel’s and that Nobel intentionally
interfered with the Bank’s contracts with the borrower. 2 Nobel also alleged the Bank’s lawsuit was between a landlord and tenant arising under a lease, although that argument is not advanced in this proceeding.
2 “that this matter be delayed or reset until we can make a determination on venue.” After
hearing argument about the due order of hearing the matters and whether Nobel’s “venue
motion” was supported by verification or proof, Respondent ruled:
THE COURT: Okay. Thank you. Okay. Counsel, I will deny that motion at this time. We will move forward for the hearing on the temporary injunction.
On May 11, 2022, Respondent signed an order granting temporary injunctive relief and
set the case for trial for September 22, 2022. The same day, Nobel filed a notice of
interlocutory appeal seeking review of the temporary injunction. The interlocutory appeal
was later voluntarily dismissed,3 but Nobel initiated the present original proceeding
petition in this Court in July 2022.
Analysis
Jurisdiction
We begin with the Bank’s argument that we lack jurisdiction because Nobel’s
petition for mandamus was not timely filed and because its complaint was not preserved
by a trial court ruling.
Section 15.0642 of the Texas Civil Practice and Remedies Code allows a party to
challenge a mandatory venue determination by mandamus. TEX. CIV. PRAC. & REM. CODE
ANN. § 15.0642. The petition must be filed before the later of “the 90th day before the
date the trial starts” or the tenth day after the date the party receives notice of the trial
3 See Nobel Leaf Holdings, LLC v. First United Bank, No. 07-22-00145-CV, 2022 Tex. App. LEXIS 5317 (Tex. App.—Amarillo July 27, 2022, no pet.) (per curiam) (mem. op.) (granting Nobel’s motion for voluntary dismissal of interlocutory appeal).
3 setting. Id. The Bank interprets this section to mean that trial “starts” on the date included
in the trial setting order, meaning Nobel should have sought mandamus relief on or before
June 24, 2022 (90 days before September 22, 2022). We disagree with the Bank’s
position that the trial court’s setting order affixes a deadline for Nobel’s petition. Moreover,
even if the Bank’s position was correct, we have no indication that trial began on
September 22.
The Bank also contends Respondent never ruled on Nobel’s motion to transfer
venue.4 However, the reporter’s record from the April 21, 2022 hearing indicates the trial
court expressly referred to the “venue motion” in its discussion with the attorneys and
before ruling it was denying “that motion at this time.” We find suitable support in the
record that Respondent knew what she was considering when denying “that motion at
this time,” and therefore reject the Bank’s jurisdictional arguments.
Nobel’s Petition
Nobel asserts Respondent possessed no discretion to refuse to transfer the suit
from Castro County to Lubbock County pursuant to section 15.011 of the Civil Practice
and Remedies Code. A writ of mandamus generally issues only to (1) correct a clear
abuse of discretion (2) for which the relator has no adequate appellate remedy. See In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
However, when a party brings a mandamus petition to seek to enforce a mandatory venue
determination, it must only prove that the respondent abused its discretion. See TEX. CIV.
4In the same section of its responsive brief, the Bank also contends Nobel failed to “preserve a complaint for appellate review.” The Bank fails to present any authority showing how this alleged failure somehow implicates this Court’s jurisdiction.
4 PRAC. & REM. CODE ANN. § 15.0642; In re Missouri Pac. R.R. Co., 998 S.W.2d 212, 216
(Tex. 1999) (orig. proceeding) (“adequacy of an appellate remedy is not a requisite of a
mandatory venue mandamus under section 15.0642.”).
Motions to transfer venue are governed by Texas Rule of Civil Procedure 87.1. It
states in relevant part:
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. The movant has the duty to request a setting on the motion to transfer. Except on leave of court each party is entitled to at least 45 days notice of a hearing on the motion to transfer.
TEX. R. CIV. P. 87.1. When a court grants a motion to transfer without giving the
responding party sufficient notice under the rules, it abuses its discretion. Henderson v.
O’Neill, 797 S.W.2d 905 (Tex. 1990). The mandamus record plainly reflects, and Nobel
conceded in the trial court’s hearing, that less than forty-five days had passed before
Nobel sought to have the motion to transfer heard. We therefore disagree with Nobel’s
position that granting the motion to transfer was required by law.
Nobel argues in its reply that any failure to comply with Rule 87.1’s notice
requirement should be excused due to the Bank’s delay in bringing Nobel into the case.
Although Rule 87.1 contemplates leave of court as an alternative to forty-five days of
notice, such relief was not requested from Respondent; we therefore do not consider it
here. In re Am. Optical Corp., 988 S.W.2d 711, 714 (Tex. 1998) (orig. proceeding) (per
5 curiam). See also In re Bank of Am., N.A., No. 01-02-00867-CV, 2003 Tex. App. LEXIS
8722, at *8–9 (Tex. App.—Houston [1st Dist.] Oct. 9, 2003, orig. proceeding) (mem. op.).5
Conclusion
Nobel’s petition for writ of mandamus is denied.
Lawrence M. Doss Justice
5 “Equity is generally not served by issuing an extraordinary writ against a trial court on a ground
that was never presented to the court and that the court thus had no opportunity to address. Moreover, the standard of review on mandamus is whether the trial court clearly abused its discretion. It would be hard to conclude, without circumstances that were highly unusual or that made a trial court’s ruling void, that a trial court could abuse its discretion in making a ruling for a reason that was never presented to the court.”