| venue mandamus | mandatory venue | permissive venue | Motion to transfer venue | venue challenge | waiver of venue venue vs. jurisdiction | timeliness of venue challenge | waiver of objection to venue | venue rules | forum selection clauses | mandamus granted | denied to enforce venue rule | contracted for venue | venue in family law cases | court of continuing jurisdiction | mandatory joinder of SAPCR to divorce suit Inconsistent Statements on forum and jurisdiction in documents render forum selection ambiguous. Trial court properly denied motion to dismiss. Mandamus denied. In re Sterling Chemicals, Inc. (Tex.App.- Houston [14th Dist.] Aug. 7, 2008)(Hedges) (forum selection clause ambiguous, not enforced, mandamus denial) MOTION OR WRIT DENIED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Hudson and Boyce 14-08-00280-CV In Re: Sterling Chemicals, Inc., Richard Crump, John Beaver, Resurgence Asset Management, LLC, Byron Haney and Paul Rostek Appeal from 212th District Court of Galveston County Trial Court Judge: Hon. Susan Elizabeth Criss Given the ambiguity in the forum-selection clause, we cannot say that the trial court abused its discretion by denying relators' motions to dismiss. When a contract is ambiguous, the parties' intent is a determination left to the exclusive province of the fact finder. Coker, 650 S.W.2d at 395. We may not address disputed fact issues in an original mandamus proceeding. ...Given the ambiguity in the forum-selection clause, we cannot say that the trial court abused its discretion by denying relators' motions to dismiss. When a contract is ambiguous, the parties' intent is a determination left to the exclusive province of the fact finder. Coker, 650 S.W.2d at 395. We may not address disputed fact issues in an original mandamus proceeding. Davenport v. Garcia, 834 S.W.2d 4, 24 (Tex. 1992) (orig. proceeding); Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex. 1990) (orig. proceeding) (op. on reh'g). Venue ruling in JP Court review de novo on appeal in county court Cramer v. State Farm Mutual Auto Ins. Co. (Tex.App.- Houston [1st Dist.] Nov. 6, 2008)(Jennings) (denial of motion to transfer venue re determined de novo by county court on appeal) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Jennings Before Justices Jennings, Hanks and Bland) 01-08-00270-CV Daniel Cramer and Saejin Cramer v. State Farm Mutual Automobile Insurance Company Appeal from County Court at Law No 1 of McLennan County Trial Court Judge: Hon. Mike Freeman Texas Supreme Court Grants Mandamus Relief to enforce Forum Selection Clause in contract In re Lyon Financial Services, Inc., No. 07-0486 (Tex. June 20, 2008)(per curiam) (orig. proc.) (mandamus, forum selection clause, motion to dismiss improperly denied, forum selection clause enforced In re Tracey Wade Mock (Tex.App. - Houston [1st Dist.] June 11, 2008)(per curiam denial of venue mandamus) DENY PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Chief Justice Radack, Justices Keyes and Higley 01-08-00360-CV In re Tracey Wade Mock Appeal from 328th District Court of Fort Bend County Trial Court Judge: Hon. Ronald Pope Texas Supreme Court grants mandamus relief to keep case in court to which it was transferred, says Plaintiff may not nonsuit and refile in a different county is not permissible In re Team Rocket, LP, No. 06-0414 (Tex. May 23, 3008)(Opinion by Justice Green)(mandamus granted) (mandamus granted to enforce first transfer of venue, nonsuit and refiling in third county disapproved) Justice Wainwright delivered a concurring opinion, Satterwhite Aviation Service v. International Profit Associates, Inc. (Tex.App.- Houston [1st Dist.] Jan. 31, 2008)(Hanks) (venue law, forum selection clause) AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Nuchia, Hanks and Higley) 01-07-00053-CV Satterwhite Aviation Service v. International Profit Associates, Inc. Appeal from 190th District Court of Harris County (Judge Jennifer Elrod) Cantu v. Grossman (Tex.App.- Houston [14th Dist.] Jan. 29, 2008)(Seymore) (venue law, foreign judgment, MTV) REVERSED AND REMANDED: Opinion by Justice Seymore Before Justices Frost, Seymore and Guzman 14-06-00078-CV Mark A. Cantu v. Howard S. Grossman, P.A. Appeal from 215th District Court of Harris County Dissenting Opinion by Justice Frost Scott v. Wichita County (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(Hanks)(venue, prisoner suit) AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Taft, Hanks and Higley 01-06-00527-CV Michael Scott v. Wichita County and Whichita County Distric Attorney Barry Macha--Appeal from 400th District Court of Ft. Bend County (Hon. Clifford J. Vacek) Texas Supreme Court Grants Mandamus Relief to Enforce Mandatory Venue Provisions In Re Texas Department of Transportation (TxDoT), No. 06-0289 (Tex. Mar. 9, 2007)(per curiam)(mandamus granted to enforce mandatory venue provision of TTCA) In Re Gillespie County, No. 06-00052 (Tex. Mar. 9, 2007)(per curiam)(mandamus granted to enforce mandatory venue under TTCA) consolidated with In Re Texas Department of Transportation, No. 06-0289 (Tex. Mar. 9, 2007) In re Applied Chemical Magnesias Corp., No. 04-1119 (Tex. Aug. 31, 2006)(Justice Paul W. Green (venue, mandatory venue, permissive venue, MTV, real estate suits) Scott v. Farrar (Tex.App.- Houston [1st Dist.] May 31, 2007)(Keyes) (venue, pro se prisoner IFP suit, venue) AFFIRM TC JUDGMENT: Opinion by Justice Keyes Before Justices Nuchia, Keyes and Higley 01-06-00395-CV Michael Scott v. Joseph Farrar, Darryl Glenn and S. Whatley Appeal from 400th District Court of Ft. Bend County (Hon Clifford J. Vacek) In his sole issue on appeal, appellant argues that the trial court's venue was not a proper venue for appellant to have brought suit, which caused the trial court to render a void order. Appellant makes no complaint about the merits of the trial court's order of dismissal. "[A]n action that accrued while the plaintiff was housed in a facility operated by or under contract with the Texas Department of Criminal Justice shall be brought in the county in which the facility is located." Tex. Civ. Prac. & Rem. Code Ann. § 15.019(a). Filing a lawsuit in a county of improper venue is not a jurisdictional defect that would render a trial court's actions void. See Gordon v. Jones, 196 S.W.3d 376, 383 (Tex. App.--Houston [1st Dist.] 2006, no pet.) ("Venue pertains solely to where a suit may be brought and is a different question from whether the court has 'jurisdiction of the property or thing in controversy.'"). "Subject-matter jurisdiction refers to the court's power to hear a particular type of suit." Id. at 382. In contrast, venue "refers to the propriety of prosecuting, in a particular form, a suit on a given subject matter with specific parties, over which the forum must, necessarily, have subject-matter jurisdiction." Id. at 383. "Venue may and generally does refer to a particular county. . . ." Id. "Venue pertains solely to where a suit may be brought and is a different question from whether the court has jurisdiction of the property or thing in controversy." Id. (citations and internal quotations omitted). "Moreover, unlike subject-matter jurisdiction, which may be challenged at any time, venue may be waived if not challenged in due order and on a timely basis." Id. (citing former Tex. R. Civ. P. 86(1)) (internal citation omitted). "Because it may be waived, venue is not 'jurisdictional.'" Id. Appellant contends that because the William P. Clements unit, where appellant is incarcerated, is in Potter County, he should have filed his lawsuit there, rather than Fort Bend County, pursuant to section 15.019(a) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 15.019(a). We have previously held that filing suit in a different county, instead of in the venue mandated by section 15.019, neither deprives the trial court of subject matter jurisdiction nor renders the trial court's order of dismissal void. (5) See Scott v. Gallagher, 209 S.W.3d 262, 264-65 (Tex. App.--Houston [1st Dist.] 2006, no pet.); see also In re Johnson, 12-07-00032-CV, 2007 WL 259255, at *1 (Tex. App.--Tyler Jan. 31, 2007, orig. proceeding) (mem. op) ("Filing a lawsuit in a county of improper venue is not a jurisdictional defect that would render a trial court's actions void."). Accordingly, we hold that the trial court did not lack jurisdiction and, thus, its order of dismissal is not void. We overrule appellant's sole issue on appeal. First Court of Appeals Grants Mandamus to Enforce Mandatory Transfer of Venue In re Wilson (Tex.App.- Houston [1st Dist.] Apr. 26, 2007)(Hanks)(family court had nondiscretionary duty to transfer case pursuant to mandatory venue statute in Family Code; denial of motion to transfer venue was error)(mandamus, venue, family law, SAPCR, modification) Venue was not timely challenged, dismissal order reversed Liu v CiCi Enterprises LP (Tex.App.- Houston [14th Dist.] Jan. 9, 2007)(Opinion by Justice Guzman) Scott v. Wichita County (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(Hanks)(venue, prisoner suit) O P I N I O N Michael Scott appeals from the trial court's order granting Wichita County's and Wichita County District Attorney Barry Macha's (collectively "Wichita County") motion to dismiss with prejudice. In his sole point of error, Scott contends that, because the trial court's venue was improper, its order is void and constitutes fundamental error. We affirm the trial court's order. Background On June 22, 2005, Scott, an inmate within the Institutional Division of the Texas Department of Criminal Justice, brought an action pro se and in forma pauperis in Fort Bend County, alleging that Wichita County was liable for failing to file his criminal complaints, thus denying him access to the courts. Wichita County filed a motion to dismiss, claiming that the suit was barred by res judicata and collateral estoppel and should be dismissed as frivolous under Chapter 14 of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 14.003 (Vernon 2002) (dismissal of inmate litigation). The trial court granted the motion to dismiss without stating its specific reasons and dismissed Scott's case with prejudice. Scott appeals the trial court's dismissal. Venue Scott's sole issue is that, because his suit was against Wichita County, venue was mandatory in Wichita County, and, thus, the trial court committed fundamental error by dismissing his suit with a void order. We disagree. It is well recognized that, by filing a lawsuit, the plaintiff is given the first choice regarding venue. See In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999). Filing a lawsuit in a county of improper venue is not a jurisdictional defect that would render a trial court's actions void. Scott v. Gallagher, 209 S.W.3d 262, 264 (Tex. App.--Houston [1st Dist.] 2006, no pet.). (1) Unlike subject-matter jurisdiction, which may be challenged at any time, venue may be waived if not challenged in due order and on a timely basis. Id. This is true, even if venue was mandatory in another county. See Jozwiak v. Jozwiak, 476 S.W.2d 857, 861 (Tex. Civ. App.--Houston [14th Dist.] 1972, no writ) ("The requirement that suit be brought in the county in which the land is located is one of venue or privilege and not of jurisdiction, and it may be waived."). When suit is filed against a Texas county, venue is mandatory in that county. Tex. Civ. Prac. & Rem. Code Ann. § 15.015 (Vernon 2002). Here, Scott improperly brought suit against Wichita County in Fort Bend County. However, because Wichita County never filed a motion to transfer venue, it waived mandatory venue. See Scott, 209 S.W.3d at 264. Therefore, the Fort Bend County trial court had jurisdiction, and its motion to dismiss was not void. See id. at 264-65. We note that Scott relies on Browning v. Placke. 698 S.W.2d 362 (Tex. 1985). Scott's reliance is misplaced, however, because Browning held that a judgment is void where the issuing court lacked jurisdiction, whereas the trial court here had jurisdiction. See id. at 363. Accordingly, because the trial court's order granting Wichita County's motion to dismiss is not void, we hold the trial court did not commit fundamental error. Scott's sole issue is overruled. Conclusion We affirm the trial court's order granting Wichita County's motion to dismiss. George C. Hanks, Jr. Justice Panel consists of Justices Taft, Hanks, and Higley. 1. However, there are limited situations where jurisdiction is tied to venue. "Texas courts hold that if a cause of action is a statutory cause of action, as opposed to a constitutional or common law cause of action, and the statute provides that suit must be prosecuted in the courts of a single county, such provisions are jurisdictional." State v. Benavides, 772 S.W.2d 271, 273 (Tex. App.-- Corpus Christi 1989, writ denied). . |
| Forum and Venue Case Law from Texas Courts of Appeals Houston Opinions |