in Re the Methodist Hospital ( 2008 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

______________________ NO. 09-08-273 CV ______________________

IN RE THE METHODIST HOSPITAL

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Original Proceeding

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MEMORANDUM OPINION

The Methodist Hospital filed a petition for writ of mandamus and requested a stay of submission on a motion for summary judgment filed by the real party in interest, The Woodlands Land Development Company, L.P. Methodist contends mandatory venue is in Harris County because the relief sought by Woodlands is primarily injunctive. See Tex. Civ. Prac. & Rem. Code Ann. § 15.016 (Vernon 2002); Tex. Civ. Prac. & Rem. Code Ann. § 65.023 (Vernon 1997). Woodlands alleges venue is proper in the county of filing because its suit is an action for recovery of real property or interest in real property. See Tex. Civ. Prac. & Rem. Code Ann. § 15.011 (Vernon 2002). We deny the petition and the motion for temporary relief.

Woodlands's original petition alleged Methodist breached a contract for purchase and sale of real property located in Montgomery County. Woodlands sought specific performance of its repurchase rights under the contract to require Methodist to convey the property to Woodlands' designee. Woodlands sought the same relief by injunction. After Methodist filed a motion to transfer venue, Woodlands amended its petition to delete the request for injunctive relief, and asserted claims for breach of contract and specific performance, and Woodlands also sought a declaratory judgment determining its rights under the contract. The trial court denied the motion to transfer venue.

Woodlands has abandoned its request for an injunction. Woodlands sought in its original petition, and still seeks, specific performance of a contract to convey real property. The initial request for permanent injunction sought the same ultimate relief as the specific performance claim in the original petition: "compelling Methodist's compliance with Woodlands' Repurchase Right." The mandatory venue provision of section 65.023 of the Civil Practice and Remedies Code does not apply when the true nature of the relief is specific performance of a contract. Karagounis v. Bexar County Hosp. Dist., 70 S.W.3d 145, 147 (Tex. App.--San Antonio 2001, pet. denied); see Tex. Civ. Prac. & Rem. Code Ann. § 65.023.

Relator has not established that the trial court abused its discretion by failing to enforce a mandatory venue provision. See Tex. Civ. Prac. & Rem. Code Ann. § 15.0642 (Vernon 2002). Accordingly, we deny relator's motion for temporary relief and petition for writ of mandamus.

PETITION DENIED.

PER CURIAM

Opinion Delivered June 26, 2008

Before Gaultney, Kreger, and Horton, JJ.