NUMBER 13-15-00608-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE RED DOT BUILDING SYSTEM, INC.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Benavides Per Curiam Memorandum Opinion1
Relator, Red Dot Building System, Inc. (“Red Dot”), filed a petition for writ of
mandamus requesting that this Court direct respondent, the Honorable Sergio Valdez,
Presiding Judge of Hidalgo County Court-at-Law Number 7, to withdraw his order denying
relator’s motion to transfer venue and motion to abate. In addition, relator requests that
this Court issue immediate temporary relief staying the upcoming trial date of January 7,
2015 in this matter. See TEX. R. APP. P. 52.10 (“Temporary Relief”).
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). The Court, having examined and fully considered the petition for writ of mandamus
and the applicable law, is of the opinion that the petition for writ of mandamus and
companion motion for temporary relief should both be denied. See TEX. R. APP. P.
52.8(d).
I. BACKGROUND
On January 5, 2015, Red Dot filed suit in Henderson County against the real party
in interest, Rigney Construction & Development, LLC (“Rigney Construction”), related to
alleged money owed under a purchase order contract entered into by Red Dot and Rigney
Construction (“the Henderson County lawsuit”). On February 6, 2015, Rigney
Construction filed a lawsuit in Hidalgo County against Red Dot alleging causes of action
for breach of contract, violations of the Texas Deceptive Trade Practices Act (“DTPA”),
and accord and satisfaction related to a contract for work on a construction project (“the
Hidalgo County lawsuit”).
On March 2, 2015, Red Dot filed a motion to transfer venue, original answer,
verified denial, and motion to abate in the Hidalgo County lawsuit asserting that the
pending Henderson County lawsuit involves the same parties and the same claims, and
as such, requesting that either the trial court transfer venue of the Hidalgo County lawsuit
to Henderson County or abate the Hidalgo County lawsuit. On July 24, 2015, the Hidalgo
County trial court denied Red Dot’s motion to transfer venue and motion to abate.
On August 10, 2015, Rigney Construction filed a motion to transfer venue, plea in
abatement, and original answer in the Henderson County lawsuit alleging that venue was
not proper in Henderson County, but that venue was instead proper in Hidalgo County.
On October 12, 2015, the Henderson County trial court denied Rigney Construction’s
motion to transfer venue.
2 On October 30, 2015, Rigney Construction filed an application for anti-suit
injunction in the Hidalgo County lawsuit, which asserted that the injunction was necessary
in order to “prevent Red Dot from robbing [the Hidalgo County court] of dominant
jurisdiction . . . .” On November 3, 2015, Rigney Construction applied for an ex-parte
temporary restraining order and request for temporary injunction in the Hidalgo County
trial court to enjoin Red Dot from “prosecuting, requesting any relief, attempting to depose
any party in the cause of action or taking any further action in the Henderson County
Lawsuit. . . .” That same day, the trial court granted the temporary restraining order. On
November 5, 2015, the Hidalgo County trial court extended the temporary restraining
order for fourteen days, scheduled the injunction hearing for November 18, 2015, ordered
the parties to mediation, and set the case for a jury trial on January 11, 2016. On
November 12, 2015, the Henderson County trial court set the Henderson County lawsuit
for a jury trial on January 11, 2016.
On November 19, 2015, the Hidalgo County trial court granted Rigney
Construction’s request for temporary injunction until 5 p.m. on November 30, 2015 and
reset the trial in the case to January 5, 2016. This original proceeding ensued. In its
petition for writ of mandamus, Red Dot requests that we direct the trial court to withdraw
its order denying Red Dot’s motion to transfer venue and/or motion to abate and instruct
the trial court to transfer the Hidalgo County lawsuit to Henderson County. In its
corresponding motion for temporary relief, Red Dot moves that we issue a temporary
order staying the January 5, 2016 trial court date for the Hidalgo County lawsuit “until
such time as the Court has had an opportunity to review and consider [Red Dot’s] request
for mandamus relief. . . .”
3 II. STANDARD OF REVIEW
To be entitled to mandamus relief, a petitioner must show that the trial court clearly
abused its discretion and that the relator has no adequate remedy by appeal. In re
McAllen Med. Ctr., Inc., 275 S.W.3d 458, 468 (Tex. 2008) (orig. proceeding). A trial court
clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to
amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding). With respect to resolution of factual issues or matters
committed to the trial court's discretion, for example, the reviewing court may not
substitute its judgment for that of the trial court. Id. The relator must establish that the
trial court could reasonably have reached only one decision. Id. at 840. Even if the
reviewing court would have decided the issue differently, it cannot disturb the trial court's
decision unless it is shown to be arbitrary and unreasonable. Id. A trial court has no
“discretion” in determining what the law is or applying the law to the facts. Id. Thus, a
clear failure by the trial court to analyze or apply the law correctly will constitute an abuse
of discretion, and may result in appellate reversal by extraordinary writ. Id.
The party seeking relief has the burden to present the appellate court with a record
sufficient to establish the right to mandamus relief. Walker, 827 S.W.2d at 837.
Mandamus is intended to be an extraordinary remedy, available only in limited
circumstances. Id. at 840. The writ will issue only in situations involving manifest and
urgent necessity and not for grievances that may be addressed by other remedies. Id.
The requirement that persons seeking mandamus relief establish the lack of an adequate
appellate remedy is a “fundamental tenet” of mandamus practice. Id.
4 III. MOTION TO TRANSFER VENUE
Red Dot first asks this Court to vacate the trial court’s order denying its motion to
transfer venue. Generally, venue determinations as a rule are not reviewable by
mandamus. In re Mendoza, 83 S.W.3d 233, 236 (Tex. App.—Corpus Christi 2002, no
pet.) (orig. proceeding) (citing In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999)
(orig. proceeding). However, a party may apply for a writ of mandamus with an appellate
court to enforce the mandatory venue provisions under the civil practice and remedies
code. TEX. CIV. PRAC. & REM. CODE ANN.
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NUMBER 13-15-00608-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE RED DOT BUILDING SYSTEM, INC.
On Petition for Writ of Mandamus.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Benavides Per Curiam Memorandum Opinion1
Relator, Red Dot Building System, Inc. (“Red Dot”), filed a petition for writ of
mandamus requesting that this Court direct respondent, the Honorable Sergio Valdez,
Presiding Judge of Hidalgo County Court-at-Law Number 7, to withdraw his order denying
relator’s motion to transfer venue and motion to abate. In addition, relator requests that
this Court issue immediate temporary relief staying the upcoming trial date of January 7,
2015 in this matter. See TEX. R. APP. P. 52.10 (“Temporary Relief”).
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions). The Court, having examined and fully considered the petition for writ of mandamus
and the applicable law, is of the opinion that the petition for writ of mandamus and
companion motion for temporary relief should both be denied. See TEX. R. APP. P.
52.8(d).
I. BACKGROUND
On January 5, 2015, Red Dot filed suit in Henderson County against the real party
in interest, Rigney Construction & Development, LLC (“Rigney Construction”), related to
alleged money owed under a purchase order contract entered into by Red Dot and Rigney
Construction (“the Henderson County lawsuit”). On February 6, 2015, Rigney
Construction filed a lawsuit in Hidalgo County against Red Dot alleging causes of action
for breach of contract, violations of the Texas Deceptive Trade Practices Act (“DTPA”),
and accord and satisfaction related to a contract for work on a construction project (“the
Hidalgo County lawsuit”).
On March 2, 2015, Red Dot filed a motion to transfer venue, original answer,
verified denial, and motion to abate in the Hidalgo County lawsuit asserting that the
pending Henderson County lawsuit involves the same parties and the same claims, and
as such, requesting that either the trial court transfer venue of the Hidalgo County lawsuit
to Henderson County or abate the Hidalgo County lawsuit. On July 24, 2015, the Hidalgo
County trial court denied Red Dot’s motion to transfer venue and motion to abate.
On August 10, 2015, Rigney Construction filed a motion to transfer venue, plea in
abatement, and original answer in the Henderson County lawsuit alleging that venue was
not proper in Henderson County, but that venue was instead proper in Hidalgo County.
On October 12, 2015, the Henderson County trial court denied Rigney Construction’s
motion to transfer venue.
2 On October 30, 2015, Rigney Construction filed an application for anti-suit
injunction in the Hidalgo County lawsuit, which asserted that the injunction was necessary
in order to “prevent Red Dot from robbing [the Hidalgo County court] of dominant
jurisdiction . . . .” On November 3, 2015, Rigney Construction applied for an ex-parte
temporary restraining order and request for temporary injunction in the Hidalgo County
trial court to enjoin Red Dot from “prosecuting, requesting any relief, attempting to depose
any party in the cause of action or taking any further action in the Henderson County
Lawsuit. . . .” That same day, the trial court granted the temporary restraining order. On
November 5, 2015, the Hidalgo County trial court extended the temporary restraining
order for fourteen days, scheduled the injunction hearing for November 18, 2015, ordered
the parties to mediation, and set the case for a jury trial on January 11, 2016. On
November 12, 2015, the Henderson County trial court set the Henderson County lawsuit
for a jury trial on January 11, 2016.
On November 19, 2015, the Hidalgo County trial court granted Rigney
Construction’s request for temporary injunction until 5 p.m. on November 30, 2015 and
reset the trial in the case to January 5, 2016. This original proceeding ensued. In its
petition for writ of mandamus, Red Dot requests that we direct the trial court to withdraw
its order denying Red Dot’s motion to transfer venue and/or motion to abate and instruct
the trial court to transfer the Hidalgo County lawsuit to Henderson County. In its
corresponding motion for temporary relief, Red Dot moves that we issue a temporary
order staying the January 5, 2016 trial court date for the Hidalgo County lawsuit “until
such time as the Court has had an opportunity to review and consider [Red Dot’s] request
for mandamus relief. . . .”
3 II. STANDARD OF REVIEW
To be entitled to mandamus relief, a petitioner must show that the trial court clearly
abused its discretion and that the relator has no adequate remedy by appeal. In re
McAllen Med. Ctr., Inc., 275 S.W.3d 458, 468 (Tex. 2008) (orig. proceeding). A trial court
clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to
amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992) (orig. proceeding). With respect to resolution of factual issues or matters
committed to the trial court's discretion, for example, the reviewing court may not
substitute its judgment for that of the trial court. Id. The relator must establish that the
trial court could reasonably have reached only one decision. Id. at 840. Even if the
reviewing court would have decided the issue differently, it cannot disturb the trial court's
decision unless it is shown to be arbitrary and unreasonable. Id. A trial court has no
“discretion” in determining what the law is or applying the law to the facts. Id. Thus, a
clear failure by the trial court to analyze or apply the law correctly will constitute an abuse
of discretion, and may result in appellate reversal by extraordinary writ. Id.
The party seeking relief has the burden to present the appellate court with a record
sufficient to establish the right to mandamus relief. Walker, 827 S.W.2d at 837.
Mandamus is intended to be an extraordinary remedy, available only in limited
circumstances. Id. at 840. The writ will issue only in situations involving manifest and
urgent necessity and not for grievances that may be addressed by other remedies. Id.
The requirement that persons seeking mandamus relief establish the lack of an adequate
appellate remedy is a “fundamental tenet” of mandamus practice. Id.
4 III. MOTION TO TRANSFER VENUE
Red Dot first asks this Court to vacate the trial court’s order denying its motion to
transfer venue. Generally, venue determinations as a rule are not reviewable by
mandamus. In re Mendoza, 83 S.W.3d 233, 236 (Tex. App.—Corpus Christi 2002, no
pet.) (orig. proceeding) (citing In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999)
(orig. proceeding). However, a party may apply for a writ of mandamus with an appellate
court to enforce the mandatory venue provisions under the civil practice and remedies
code. TEX. CIV. PRAC. & REM. CODE ANN. § 15.0642 (West, Westlaw through 2015 R.S.);
see also In re Mendoza, 83 S.W.3d at 236 (recognizing the exception). Additionally, on
rare occasions, an appellate remedy, generally adequate, may become inadequate
because the circumstances are exceptional. In re Masonite Corp., 997 S.W.2d at 197.
Under Texas venue law, the plaintiff has the first choice to fix venue in a proper
county by filing the suit in the county of his choice. See id. If a defendant, through a
motion to transfer venue, objects to the plaintiff’s venue choice, the plaintiff must prove
that venue is proper in the county of suit or face a transfer of his suit to a county of proper
venue. Id. If the plaintiff meets the burden, the trial court must maintain the lawsuit in
the county where it was filed. Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259,
260–61 (Tex. 1994).
In this case, Red Dot does not assert in its petition for writ of mandamus that the
mandatory venue provisions of the civil practice and remedies code are at issue in this
case, and confirm this fact in its motion to transfer venue, to trigger the mandatory venue
exception to entitle it to mandamus relief. Furthermore, Rigney Construction laid out
specific facts and reasons in its response to Red Dot’s motion to transfer venue to meet
its initial burden to show why venue for the Hidalgo County lawsuit was proper in Hidalgo
5 County and is thus, distinguishable from the mandamus relief granted in In re Masonite
based upon exceptional circumstances. Accordingly, we hold that the respondent’s
ruling on Red Dot’s motion to transfer venue may not be reviewed by mandamus. See
In re Masonite Corp., 997 S.W.2d at 197; In re Mendoza, 83 S.W.3d at 236.
IV. MOTION TO ABATE
Red Dot next asks us to vacate the trial court’s ruling that denied its motion to
abate the Hidalgo County lawsuit. However, the Texas Supreme Court has held that the
refusal of a trial court to abate an action based on the pendency of another action is not
reviewable by mandamus unless the courts were directly interfering with each other by
issuing conflicting orders or injunctions. Hall v. Lawlis, 907 S.W.2d 493, 494 (Tex. 1995)
(orig. proceeding) (per curiam); Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985).
Although the respondent issued a temporary injunction related to the Henderson
County lawsuit, the injunction expired on November 30, 2015 and was not in effect at the
time Red Dot filed its petition for writ of mandamus and emergency motion for temporary
relief. Red Dot further confirms this fact in a pleading filed in Hidalgo County which
stated that “Red Dot is not enjoined from pursuing its claims in the Henderson County
matter involving the same parties and claims.” Therefore, we hold that Red Dot is not
entitled to mandamus relief on this issue.
V. CONCLUSION
For the foregoing reasons, Red Dot’s petition for writ of mandamus and emergency
motion for temporary relief are both DENIED. See TEX. R. APP. P. 52.8(a).
PER CURIAM
Delivered and filed the 29th day of December, 2015. 6