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


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  •                                        In The
    Court of Appeals
    Ninth District of Texas at Beaumont
    _________________
    NO. 09-17-00449-CV
    _________________
    IN RE BESTEST, INC. AND JOSHUA ALAN JORDAN
    ________________________________________________________________________
    Original Proceeding
    136th District Court of Jefferson County, Texas
    Trial Cause No. D-199,594
    ________________________________________________________________________
    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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Document Info

Docket Number: 09-17-00449-CV

Filed Date: 12/21/2017

Precedential Status: Precedential

Modified Date: 12/21/2017