law-motion-to-transfer-venue (Tex. R. Civ. P. 86 & TRCP 87)

law-MTV | Houston Venue Case Law | venue caselaw
MOTION TO TRANSFER VENUE

Mandamus is the proper vehicle to enforce mandatory venue. Tex. Civ. Prac. & Rem. Code Ann. § 15.0642
(West 2002). Ordinarily, mandamus relief lies when the trial court has abused its discretion and a party
has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex. 2004); Walker
v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). However, where a party seeks to enforce a mandatory
venue provision under Chapter 15 of the Texas Civil Practices and Remedies Code, a party is not required
to prove the lack of an adequate appellate remedy, but is required only to show that the trial court abused
its discretion by failing to transfer the case. In re Tex. DOT, 218 S.W.3d 74, 76 (Tex. 2007). Section
15.020 of the Civil Practice and Remedies Code is a mandatory venue provision.[1] In re Royalco Oil &
Gas Corp., 287 S.W.3d 398, 399, n. 2 (Tex. App. - Waco 2009, orig. proceeding). Therefore petitioner did
not need to show that it had no adequate appellate remedy

VENUE CHALLENGES - MOTIONS TO TRANSFER VENUE

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)
(venue, motion to transfer venue, venue vs. forum selection, waiver of right to enforce proper venue)
REVERSED AND REMANDED: Opinion by Justice Guzman
Before Justices Anderson, Hudson and Guzman
14-05-00827-CV Frank M. K. Liu and Edward R. Perry, Jr., Individually and on Behalf of IV Pizza, LLC v.
CiCi Enterprises, LP, Successor by Conversion to CiCi Enterprises, Inc.
Appeal from 125th District Court of Harris County (Judge John A. Coselli)
The trial court granted a motion to dismiss a Harris County suit based on a contractual provision stating that the parties
"irrevocably submit themselves to the jurisdiction of the State Courts of Dallas County, Texas . . . [and] agree that venue for
any proceeding relating to or arising out of this agreement shall be Dallas County, Texas . . . ." Because the provision is not
a mandatory forum selection clause requiring dismissal but is instead a venue selection clause, and because venue was
not timely challenged in accordance with the governing procedural rules, we reverse and remand.
Conclusion: Because the trial court abused its discretion in granting CiCi's motion to dismiss, we reverse the judgment of
the trial court and remand for further proceedings consistent with this opinion.

RULES GOVERNING MOTION TO TRANSFER VENUE

RULE 85. ORIGINAL ANSWER; CONTENTS
The original answer may consist of motions to transfer venue, pleas to the jurisdiction, in abatement,
or any other dilatory pleas; of special exceptions, of general denial, and any defense by way of
avoidance or estoppel, and it may present a cross-action, which to that extent will place defendant
in the attitude of a plaintiff. Matters in avoidance and estoppel may be stated together, or in several
special pleas, each presenting a distinct defense, and numbered so as to admit of separate issues to
be formed on them.

RULE 86. MOTION TO TRANSFER VENUE
1. Time to File. An objection to improper venue is waived if not made by written motion filed
prior to or concurrently with any other plea, pleading or motion except a special appearance
motion provided for in Rule 120a. A written consent of the parties to transfer the case to
another county may be filed with the clerk of the court at any time. A motion to transfer
venue because an impartial trial cannot be had in the county where the action is pending is
governed by the provisions of Rule 257.
2. How to File. The motion objecting to improper venue may be contained in a separate
instrument filed concurrently with or prior to the filing of the movant's first responsive
pleading or the motion may be combined with other objections and defenses and included
in the movant's first responsive pleading.
3. Requisites of Motion. The motion, and any amendments to it, shall state that the action
should be transferred to another specified county of proper venue because:
(a) The county where the action is pending is not a proper county; or
(b) Mandatory venue of the action in another county is prescribed by one or more
specific statutory provisions which shall be clearly designated or indicated.
The motion shall state the legal and factual basis for the transfer of the action and request
transfer of the action and request transfer of the action to a specific county of mandatory or
proper venue. Verification of the motion is not required. The motion may be accompanied
by supporting affidavits as provided in Rule 87.
4. Response and Reply. Except as provided in paragraph 3(a) of Rule 87, a response to the
motion to transfer is not required. Verification of a response is not required.
5. Service. A copy of any instrument filed pursuant to Rule 86 shall be served in accordance
with Rule 21a.

RULE 87. DETERMINATION OF MOTION TO TRANSFER
1. Consideration of Motion. 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. The movant has the duty to request a setting on the
motion to transfer. Except on leave of court each party is entitled to at least 45 days notice
of a hearing on the motion to transfer.
Except on leave of court, any response or opposing affidavits shall be filed at least 30 days
prior to the hearing of the motion to transfer. The movant is not required to file a reply to the
response but any reply and any additional affidavits supporting the motion to transfer must,
except on leave of court, be filed not later than 7 days prior to the hearing date.
2. Burden of Establishing Venue.
(a) In General. A party who seeks to maintain venue of the action in a particular county
in reliance upon Section 15.001 (General Rule), Sections 15.011-15.017 (Mandatory
Venue), Sections 15.031-15.040 (Permissive Venue), or Sections 15.061 and 15.062
(Multiple Claims), Civil Practice and Remedies Code, has the burden to make proof,
as provided in paragraph 3 of this rule, that venue is maintainable in the county of
suit. A party who seeks to transfer venue of the action to another specified county
under Section 15.001 (General Rule), Sections 15.011-15.017 (Mandatory Venue),
Sections 15.031-15.040 (Permissive Venue), or Sections 15.061 and 15.062
(Multiple Claims), Civil Practice and Remedies Code, has the burden to make proof,
as provided in paragraph 3 of this rule, that venue is maintainable in the county to
which transfer is sought. A party who seeks to transfer venue of the action to another
specified county under Sections 15.011-15.017, Civil Practice and Remedies Code
on the basis that a mandatory venue provision is applicable and controlling has the
burden to make proof, as provided in paragraph 3 of this rule, that venue is
maintainable in the county to which transfer is sought by virtue of one or more
mandatory venue exceptions.
(b) Cause of Action. It shall not be necessary for a claimant to prove the merits of a
cause of action, but the existence of a cause of action, when pleaded properly, shall
be taken as established as alleged by the pleadings. When the defendant specifically
denies the venue allegations, the claimant is required, by prima facie proof as
provided in paragraph 3 of this rule, to support such pleading that the cause of action
taken as established by the pleadings, or a part of such cause of action, accrued in the
county of suit. If a defendant seeks transfer to a county where the cause of action or
a part thereof accrued, it shall be sufficient for the defendant to plead that if a cause
of action exists, then the cause of action or part thereof accrued in the specific county
to which transfer is sought, and such allegation shall not constitute an admission that
a cause of action in fact exists. But the defendant shall be required to support his
pleading by prima facie proof as provided in paragraph 3 of this rule, that, if a cause
of action exists, it or a part thereof accrued in the county to which transfer is sought.
(c) Other Rules. A motion to transfer venue based on the written consent of the parties
shall be determined in accordance with Rule 255. A motion to transfer venue on the
basis that an impartial trial cannot be had in the courts where the action is pending
shall be determined in accordance with Rules 258 and 259.
3. Proof.
(a) Affidavits and Attachments. All venue facts, when properly pleaded, shall be taken
as true unless specifically denied by the adverse party. When a venue fact is
specifically denied, the party pleading the venue fact must make prima facie proof
of that venue fact; provided, however, that no party shall ever be required for venue
purposes to support prima facie proof the existence of a cause of action or part
thereof, and at the hearing the pleadings of the parties shall be taken as conclusive
on the issues of existence of a cause of action. Prima facie proof is made when the
venue facts are properly pleaded and an affidavit, and any duly proved attachments
to the affidavit, are filed fully and specifically setting forth the facts supporting such
pleading. Affidavits shall be made on personal knowledge, shall set forth specific
facts as would be admissible in evidence, and shall show affirmatively that the affiant
is competent to testify.
(b) The Hearing. The court shall determine the motion to transfer venue on the basis
of the pleadings, any stipulations made by and between the parties and such affidavits
and attachments as may be filed by the parties in accordance with the preceding
subdivision of this paragraph 3 or of Rule 88.
(c) If a claimant has adequately pleaded and made prima facie proof that venue is proper
in the county of suit as provided in subdivision (a) of paragraph 3, then the cause
shall not be transferred but shall be retained in the county of suit, unless the motion
to transfer is based on the grounds that an impartial trial cannot be had in the county
where the action is pending as provided in Rules 257-259 or on an established ground
of mandatory venue. A ground of mandatory venue is established when the party
relying upon a mandatory exception to the general rule makes prima facie proof as
provided in subdivision (a) of paragraph 3 of this rule.
(d) In the event that the parties shall fail to make prima facie proof that the county of suit
or the specific county to which transfer is sought is a county of proper venue, then
the court may direct the parties to make further proof.
4. No Jury. All venue challenges shall be determined by the court without the aid of a jury.
5. Motion for Rehearing. If venue has been sustained as against a motion to transfer, or if an
action has been transferred to a proper county in response to a motion to transfer, then no
further motions to transfer shall be considered regardless of whether the movant was a party
to the prior proceedings or was added as a party subsequent to the venue proceedings, unless
the motion to transfer is based on the grounds that an impartial trial cannot be had under
Rules 257-259 or on the ground of mandatory venue, provided that such claim was not
available to the other movant or movants.
Parties who are added subsequently to an action and are precluded by this Rule from having
a motion to transfer considered may raise the propriety of venue on appeal, provided that the
party has timely filed a motion to transfer.
6. There shall be no interlocutory appeals from such determination.

TEXAS CAUSES OF ACTION ELEMENTS -->
HO USTON COURTS OF APPEALS CASE LAW CITES AND SNIPPETS ON -->
TEXAS COURT OF APPEALS OPINIONS --> Te xas Venue case law decisions
HOUSTON OPINIONS HOME PAGE