in Re BesTest, Inc. and Joshua Alan Jordan ( 2017 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-17-00449-CV
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IN RE BESTEST, INC. AND JOSHUA ALAN JORDAN
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Original Proceeding
136th District Court of Jefferson County, Texas
Trial Cause No. D-199,594
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MEMORANDUM OPINION
In this 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 mandamus relief.
Seven-year-old 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
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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).
On 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.
According 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
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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.
On 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 transfer.
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In a 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.
In her 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 vehicle collision.”
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A trial 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 six months).
In 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
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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).
Citing 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 evaluating benefits and detriments of
mandamus, we consider whether mandamus will preserve important substantive and
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procedural rights from impairment or loss. In re Team Rocket, L.P., 256 S.W.3d 257,
262 (Tex. 2008).
Accordingly, we conditionally grant the writ, and direct the trial court to rule
on the motion to transfer the case. The writ will not issue unless the trial court fails
to act in accordance with this opinion.
PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on December 4, 2017
Opinion Delivered December 21, 2017
Before McKeithen, C.J., Horton and Johnson, JJ.
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