in Re Fluor Enterprises, Inc. F/K/A Fluor Daniel, Inc.

NUMBER 13-11-00260-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN RE FLUOR ENTERPRISES, INC. F/K/A FLUOR DANIEL, INC.

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez

Through this original proceeding, Fluor Enterprises, Inc. f/k/a Fluor Daniel, Inc.

(―Fluor‖), seeks to compel the trial court to transfer venue of this case from Hidalgo

County, Texas, to Dallas County, Texas. We conditionally grant the petition for writ of

mandamus.

I. BACKGROUND

Real party in interest, John Joseph Whelan, III, was injured on the job on

February 11, 2009 while employed by Fluor as a ―foreman turbine millwright‖ at Fluor’s

facility in Robertson County. After a dispute arose between Whelan and his supervisor,
Charles Smith, regarding Whelan’s injuries and the completion of safety reports

pertaining to those injuries, Whelan was terminated on February 28, 2009.

On February 26, 2010, Whelan filed suit against Fluor and Smith in Hidalgo

County. His original petition alleged libel, slander, and defamation causes of action

against Fluor and Smith and included a cause of action for retaliatory discharge against

Fluor. According to the venue facts alleged in the petition, Whelan resided in the Rio

Grande Valley, Fluor’s principal place of business was in Irving, Texas, and Smith could

be served in Irving, Texas. Whelan alleged that venue was proper in Hidalgo County

because his ―cause of action arose in whole or in substantial part in Hidalgo County,

Texas.‖

On March 26, 2010, Fluor filed a motion to transfer venue to Dallas County

based on the mandatory venue provision applicable to defamation claims. See TEX.

CIV. PRAC. & REM. CODE ANN. § 15.017 (West 2002). Fluor also contended that venue

was proper in Dallas County under the general venue rule because that is where its

principal place of business in Texas is located. See id. §15.002(a)(3) (West 2002).

Fluor specifically denied that Hidalgo County was a proper venue and specifically

denied that Whelan’s cause of action arose in Hidalgo County. Instead, Fluor

contended that all alleged acts and omissions occurred at Fluor’s facility in Robertson

County where Whelan was employed. Fluor also argued that Whelan failed to allege

that he resided in Hidalgo County at the time of the events giving rise to his suit. See id.

§ 15.006 (West 2002) (―A court shall determine the venue of a suit based on the facts

existing at the time the cause of action that is the basis of the suit accrued.‖).

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 On or about May 27, 2010, Whelan filed an ―Opposition and Response‖ to the

motion to transfer venue and also filed an amended petition. In both, Whelan

contended that venue was proper in Hidalgo County because that is where he filed his

workers’ compensation claim. According to Whelan, the institution of a workers’

compensation claim is a material element in proving his retaliatory discharge claim.

See TEX. LAB. CODE ANN. § 451.001 (West 2006). Whelan did not specifically deny or

otherwise address Fluor’s contentions that mandatory venue for defamation claims

placed venue in Dallas County and did not address Fluor’s contentions regarding its

principal place of business.

By order issued on or about April 1, 2010, the trial court set Fluor’s motion to

transfer venue to be heard on June 3, 2010. At the hearing, the parties notified the trial

court that the hearing was set without forty–five day’s notice. See TEX. R. CIV. P. 87(1)

(―Except on leave of court each party is entitled to at least 45 days notice of a hearing

on the motion to transfer.‖). After discussion, the trial court reset the hearing for June

15, 2010. Subsequently, on June 10, 2010, Fluor filed an amended motion to transfer

venue reiterating and expanding on its venue allegations.

On the morning of June 15, 2010, Whelan filed a second amended petition

omitting his cause of action for defamation. That same day, the trial court held the

hearing on the motion to transfer venue. At the hearing, Whelan, in open court, averred

that he was dropping all claims for defamation. At the close of the hearing, the trial

court took the motion to transfer under consideration. Subsequently that same day,

Whelan filed a third amended petition dropping all claims against Smith.

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 On August 30, 2010, by written order, the trial court denied the motion to transfer

venue. This original proceeding ensued. Fluor asserts the issue in this case is as

follows:

Whether Whelan could thwart the application of a mandatory venue
provision by withdrawing a claim to which the provision applied the
morning of the venue hearing, or whether, under GeoChem Tech Corp. v.
Verseckes, 962 S.W.2d 541 (Tex. 1998), Whelan’s withdrawal of the claim
fixed venue in the county to which Fluor sought a transfer[?]

The Court requested and received a response to the petition for writ of mandamus from

Whelan.1

II. STANDARD OF REVIEW

Venue rulings are generally not subject to interlocutory appeal. See TEX. CIV.

PRAC. & REM. CODE ANN. § 15.064(a) (West 2002); TEX. R. CIV. P. 87(6); In re Team

Rocket, L.P., 256 S.W.3d 257, 259–60 (Tex. 2008) (orig. proceeding). However,

mandatory venue provisions may be enforced by mandamus. See 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) (orig. proceeding); Walker v.

Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). 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 required only to show that the trial court

abused its discretion by failing to transfer the case and is not required to prove that it

lacks an adequate appellate remedy. In re Tex. Dept. of Transp., 218 S.W.3d 74, 76

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The Court herein GRANTS Whelan’s ―Motion for Leave to File Response to Petition for Writ of
Mandamus.‖

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(Tex. 2007) (orig. proceeding). A trial court abuses its discretion if it reaches a decision

so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it

clearly fails to correctly analyze or apply the law. See In re Cerberus Capital Mgmt.,

L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). In mandatory venue

mandamus actions, we look only to whether the trial court clearly abused its discretion

in ruling upon the motion. In re Applied Chem. Magnesias Corp., 206 S.W.3d 114, 117

(Tex. 2006) (orig. proceeding).

III. PROCEDURE AND BURDEN OF PROOF

Because venue may be proper in more than one county, the plaintiff is given the

first choice to fix venue in a proper county by filing suit in that county. See In re Team

Rocket, 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding); In re Masonite Corp., 997

S.W.2d 194, 197 (Tex. 1999) (orig. proceeding). If a defendant objects to the plaintiff’s

venue choice and properly challenges that choice through a motion to transfer venue,

then the question of proper venue is raised. Wichita County v. Hart, 917 S.W.2d 779,

781 (Tex. 1996); Wilson v. Tex. Parks & Wildlife Dep't, 886 S.W.2d 259, 260 (Tex.

1994); see TEX. R. CIV. P. 86(3), 87(2)(b). In its motion to transfer venue, a defendant

must specifically deny the venue facts in the plaintiff’s petition; if not, they are taken as

true. TEX. R. CIV. P. 87(3)(a).

Once the defendant has specifically denied the plaintiff's venue facts, then the

plaintiff is required to make prima facie proof of its venue facts. Id.; In re Masonite

Corp., 997 S.W.2d at 197. ―Prima facie proof is made when the venue facts are

properly pleaded and an affidavit, and any duly proved attachments to the affidavit, are

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filed fully and specifically setting forth the facts supporting such pleading.‖ TEX. R. CIV.

P. 87(3)(a); see Rodriguez v. Printone Color Corp., 982 S.W.2d 69, 72 (Tex. App.—

Houston [1st Dist.] 1998, pet. denied) (―A prima facie case represents the minimum

quantity of evidence necessary to support a rational inference that the allegation of fact

is true.‖). Affidavits must be made on personal knowledge, set forth specific facts as

would be admissible in evidence, and show affirmatively that the affiant is competent to

testify. TEX. R. CIV. P. 87(3)(a). The plaintiff's prima facie proof is not subject to

rebuttal, cross–examination, impeachment, or disproof. Ruiz v. Conoco, Inc., 868

S.W.2d 752, 757 (Tex. 1993).

If a plaintiff has adequately pleaded and made prima facie proof that venue is

proper in the county of suit, the trial court must maintain the lawsuit in the county where

suit was filed unless the motion to transfer is based on the grounds that an impartial trial

cannot be held in the county where the action is pending or on an established ground of

mandatory venue. TEX. R. CIV. P. 87(3)(c); see Wilson, 886 S.W.2d at 261 (―Together,

Rule 87(3)(c)) and section 15.063(1) require that a lawsuit pleaded and proved to be

filed in a county of proper venue may not be transferred.‖). In such a situation, no other

county can be a proper county of venue, even if the county of transfer also would have

been proper had it been originally chosen by the plaintiff. Wilson, 886 S.W.2d at 261.

This rule gives effect to the plaintiff's right to select a proper venue. Id. If the plaintiff

fails in his burden, the defendant has the burden of showing that venue is maintainable

in the county in which the transfer is sought under either a general, permissive, or

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mandatory venue rule. TEX. R. CIV. P. 87(2)(a). If the defendant succeeds in that

showing, the cause will be transferred to the appropriate county. Id.

When ruling on a motion to transfer venue, the trial court must assume the

pleadings are true and determine venue based on the pleadings and affidavits

submitted by the parties. Id. at R. 87(3)(c). Venue questions are to be decided based

on the ―facts existing at the time the cause of action that is the basis of the suit

accrued.‖ TEX. CIV. PRAC. & REM. CODE ANN. § 15.006 (West 2002).

IV. PERMISSIVE AND MANDATORY VENUE

Under the general venue rule, all lawsuits must be brought in either: (1) the

county in which all or a substantial part of the events or omissions giving rise to the

claim occurred; (2) the county of defendant's residence at the time the cause of action

accrued if the defendant is a natural person; or (3) the county of the defendant's

principal office in this state, if the defendant is not a natural person. See id. § 15.002(a).

However, mandatory venue provisions control over general venue provisions. See id. §

15.004 (West 2002). At issue herein is section 15.017 of the Texas Civil Practice and

Remedies Code, which provides:

A suit for damages for libel, slander, or invasion of privacy shall be
brought and can only be maintained in the county in which the plaintiff
resided at the time of the accrual of the cause of action, or in the county in
which the defendant resided at the time of filing suit, or in the county of the
residence of the defendants, or any of them, or in the domicile of any
corporate defendant, at the election of the plaintiff.

Id. § 15.017. This section provides for mandatory venue. In re Adan Volpe Props., 306

S.W.3d 369, 375 (Tex. App.—Corpus Christi 2010, orig. proceeding); Marshall v.

Mahaffey, 974 S.W.2d 942, 947 (Tex. App.—Beaumont 1998, pet. denied).

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 V. ANALYSIS

In its motion to transfer venue, Fluor specifically denied Whalen’s venue facts2

and asserted in its pleadings that venue should be transferred to Dallas County as the

county of mandatory venue for defamation claims, and alternatively, as the proper

county of its principal office under the general venue rules. 3 Whalen did not specifically

deny or even address these contentions in his ―Opposition and Response.‖ Rather, he

contended at the hearing and now on this original proceeding that he has amended his

pleadings to omit the cause of action calling for mandatory venue. However, the venue

facts pleaded in a motion to transfer venue are taken as true unless the plaintiff

specifically denies them. See TEX. R. CIV. P. 87(3)(a); In re Pepsico, Inc., 87 S.W.3d

787, 792 (Tex. App.—Texarkana 2002, orig. proceeding). Thus, Fluor’s venue facts are

taken as true because Whelan did not specifically deny them.

Whalen argues that mandatory venue is inapplicable based on the amendments

to his pleadings omitting his claims for defamation. Whalen was clearly entitled to

amend his pleadings at least seven days before the hearing on the motion to transfer.

TEX. R. CIV. P. 63; Watson v. City of Odessa, 893 S.W.2d 197, 199–200 (Tex. App.—El

Paso 1995, writ denied); see also Moriarty v. Williams, 752 S.W.2d 610, 611 (Tex.

App.—El Paso 1988, writ denied) (holding that the plaintiff was allowed to amend his

petition to add claims not addressed by the motion to transfer venue). However,
2
When a party is entitled to a transfer under a mandatory venue provision, it is not necessary for
that party to challenge the venue facts pleaded by its adversary. See In re Fort Bend County, 278
S.W.3d 842, 845 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding).
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We do not review Fluor’s allegations regarding general venue in this original proceeding and
confine our review to the application of mandatory venue herein. See TEX. CIV. PRAC. & REM. CODE ANN.
§§ 15.064(a), 15.0642 (West 2002); TEX. R. CIV. P. 87(6) ("There shall be no interlocutory appeals from
such determination."); In re Team Rocket, L.P., 256 S.W.3d 257, 259–60 (Tex. 2008) (orig. proceeding).
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Whalen did not file his amended petitions until the day of the hearing, and accordingly,

such petitions were not before the trial court for its consideration. See Watson, 893

S.W.2d at 199–200.

Fluor contends that our analysis of this case is governed by GeoChem Tech

Corp. v. Verseckes, 962 S.W.2d 541 (Tex. 1998). In that case, the Texas Supreme

Court was called on to decide whether the ―plea of privilege‖ rule that venue was fixed in

the county to which transfer was sought when the plaintiff took a nonsuit after the

defendant filed a plea of privilege applied under current venue rules. See id. at 542.

The supreme court held that whether a change of venue was warranted must be

determined from the record filed at the time the nonsuit was taken because either or

both of the parties may or may not have made prima facie proof at the time of the

nonsuit. Id. at 543. Thus, depending on the state of the record at the time of the filing

of a nonsuit, if an objection to venue has been filed and the plaintiff then takes a nonsuit

and has not specifically denied the venue facts averred by the party seeking transfer,

the venue facts alleged in the motion to transfer may be taken as true. Id. Given the

applicable rules pertaining to the amendment of pleadings and their relationship to the

motion to transfer venue as delineated in rule 87 of the rules of civil procedure, we are

disinclined to apply GeoChem to the facts of this case. However, given our holding

herein, we need not address this argument further. See TEX. R. APP. P. 47.1, 47.4.

VI. CONCLUSION

Based on the foregoing, we conclude that the trial court erred in refusing to apply

the mandatory venue provision applicable to defamation claims to the instant case.

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Accordingly, we conditionally grant the petition for writ of mandamus and direct the trial

court to transfer venue of this case to Dallas County. The writ will issue only if the trial

court fails to comply with this directive.

_____________________
ROGELIO VALDEZ
Chief Justice

Delivered and filed the
13th day of June, 2011.

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