Lowell Merritt v. Robert Davis ( 2009 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-09-00222-CV

Lowell Merritt,

                                                                                    Appellant

 v.

Robert Davis,

                                                                                    Appellee

From the 380th District Court

Collin County, Texas

Trial Court No. 380-01387-2009

MEMORANDUM  Opinion

            Lowell Merritt seeks to appeal the order of a McLennan County district court granting Robert Davis’s motion to transfer venue to a Collin County district court.  We will dismiss this interlocutory appeal for want of jurisdiction.

            The Clerk of this Court advised the parties that the appeal is subject to dismissal for want of jurisdiction because it appears that no statute authorizes the appeal.  See Ogletree v. Matthews, 262 S.W.3d 316, 319 n.1 (Tex. 2007).  The Clerk also notified the parties that the appeal may be dismissed unless a response was filed showing grounds for continuing the appeal.  Merritt has filed a response contending that section 15.064(b) of the Civil Practice and Remedies Code authorizes this appeal.  We disagree.

            Section 15.064(a) of the same code provides in pertinent part, “No interlocutory appeal shall lie from the [venue] determination.”  Tex. Civ. Prac. & Rem. Code Ann. § 15.064(a) (Vernon 2002).  Rule of Civil Procedure 87(6) similarly provides, “There shall be no interlocutory appeals from [an adverse venue] determination.”  Tex. R. Civ. P. 87(6).  An “interlocutory appeal” is one “that occurs before the trial court’s final ruling on the entire case.”  Black’s Law Dictionary 106 (8th ed. 2004).

            Merritt relies on section 15.064(b), which provides, “On appeal from the trial on the merits, if venue was improper it shall in no event be harmless error and shall be reversible error.  In determining whether venue was or was not proper, the appellate court shall consider the entire record, including the trial on the merits.”  Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b) (Vernon 2002) (emphasis added).  The “trial on the merits” is the hearing in which the court makes its “final ruling on the entire case.”  There has not been a trial on the merits in Merritt’s case yet.

            Merritt complains that, if no interlocutory appeal is permitted, “any Defendant can LIE to obtain a Venue Change.”  We note, however, that sanctions are available for groundless pleadings or those filed in bad faith or for the purpose of harassment.  See Tex. R. Civ. P. 13.

            A venue ruling may be challenged in one of two ways.  First, if the venue ruling allegedly violates a mandatory venue statute, a party may challenge that ruling by filing a petition for writ of mandamus with the court of appeals.  Tex. Civ. Prac. & Rem. Code Ann. § 15.0642 (Vernon 2002); see Tex. R. App. P. 52 (governing mandamus proceedings generally); see also In re Applied Chemical Magnesias Corp., 206 S.W.3d 114 (Tex. 2006) (orig. proceeding) (mandamus proceeding challenging venue ruling).  Conversely, if the venue ruling does not involve a mandatory venue statute, the ruling cannot be challenged in an appellate court until after the trial on the merits.  See Tex. Civ. Prac. & Rem. Code Ann. § 15.064(a); Tex. R. Civ. P. 87(6); Am. Home Products Corp. v. Clark, 38 S.W.3d 92, 95 (Tex. 2000) (“the law requires a party to wait until a final judgment is entered in a case to appeal an erroneous venue ruling”).

 Merritt has not filed a petition for writ of mandamus to challenge the McLennan County district court’s venue ruling.  No statute authorizes an interlocutory appeal of this ruling. Therefore, we dismiss Merritt’s appeal for want of jurisdiction.

FELIPE REYNA

                                                                                                Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Appeal dismissed

Opinion delivered and filed August 5, 2009

[CV06]

79 S.W.2d 484, 485 (Tex. 1984). A temporary injunction is an extraordinary remedy and does not issue as a matter of right. The decision to grant or deny a temporary injunction is in the sound discretion of the trial court, and the court’s grant or denial is subject to reversal only for a clear abuse of discretion. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993).

      In reviewing an order denying a temporary injunction, we draw all legitimate inferences from the evidence in the light most favorable to the trial court’s order. State v. Ruiz, 901 S.W.2d 772, 777 (Tex. App.—Austin 1995, no writ).

      A party seeking injunctive relief must plead and prove facts showing that party entitled to such relief; and the court may deny such relief upon insufficiency of the testimony which may arise from the testimony offered or from a want of testimony. Sneed v. Ellison, 116 S.W.2d 864, 866 (Tex. App.—Amarillo 1938, writ dism’d).

      Normally, an injunction will not be granted to prevent anticipated Fifth Amendment matters. There must be evidence of the necessity for the present use of the injunction. Maverick County Water District v. City of Laredo, 346 S.W.2d 856, 858 (Tex. App.—San Antonio 1961, n.r.e.); See also In re Verbois, 10 S.W.3d 825, 828 (Tex. App.—Waco 2000).

      The trial judge at the hearing advised Appellant that he could not be required to give evidence against himself, and if someone sought to require him to do so, “Don’t do it, the Fifth Amendment protects you.” There is no evidence that the TDCJ had in fact scheduled Appellant for the SOTP program or that if he did attend, he would be required to give evidence against himself that is protected by the Fifth Amendment.

      The trial court did not abuse its discretion in denying Appellant’s motion for a temporary injunction.

      Appellant further complains of the trial court’s failure to file Findings of Fact and Conclusions of Law, although timely requested to do so by Appellant. The failure of the trial court to file Findings of Fact and Conclusions of Law, if error, could not have caused the rendition of an improper judgment. Rule 44.1, Tex. R. App. P.

      Appellant’s issues and all contentions made thereunder are overruled.

      The judgment is affirmed.

                                                                         FRANK G. McDONALD

                                                                         Chief Justice (Retired)

Before Chief Justice Davis,

      Justice Gray, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed May 30, 2001

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