Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00083-CV
HALE LAND AND CATTLE COMPANY, INC.,
Appellant
v.
SILVARIS CORPORATION, d/b/a Low Grande
SILVARIS CORPORATION, d/b/a Low Grade Lumber and Alcalosa Forwarding, Inc.,
Appellees
From the 293rd Judicial District Court, Maverick County, Texas
Trial Court No. 08-12-24038-MCV
Honorable Cynthia L. Muniz, Judge Presiding
No. 04-13-00320-CV
IN RE HALE LAND AND CATTLE COMPANY, INC.
Original Mandamus Proceeding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Catherine Stone, Chief Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: July 31, 2013
AFFIRMED;
PETITION FOR WRIT OF MANDAMUS DENIED
This consolidated interlocutory appeal and petition for writ of mandamus arise out of the
realignment of parties for purposes of trial and denial of Hale Land and Cattle Company’s motion
to transfer venue. Because we conclude Hale affirmatively waived any objection to the request for
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realignment which forms the basis of its venue challenge, we overrule Hale’s issues in the
interlocutory appeal. With respect to the petition for writ of mandamus, because we conclude Hale
has an adequate remedy by appeal with respect to the denial of its motion to transfer venue, we
deny mandamus relief.
FACTUAL AND PROCEDURAL BACKGROUND
Silvaris Corporation d/b/a Low Grade Lumber purchased railroad ties from Hale that were
to be shipped to Alcalosa Forwarding, Inc. in Eagle Pass, Texas, which would then deliver the
shipments to the end user, Silvaris’s customer in Mexico. Silvaris initially sued Alcalosa
Forwarding, Inc. in Maverick County in December 2008 for civil theft, alleging that some of the
railroad ties ordered in July 2008 were never received by its customer in Mexico. In its original
petition, Silvaris asserted that venue was proper in Maverick County pursuant to Texas Civil
Practice & Remedies Code sections 15.002(a)(1) and (3) because all or a substantial part of the
events giving rise to the claims occurred in Maverick County and it was the county of Alcalosa’s
principal office in Texas. TEX. CIV. PRAC. & REM. CODE ANN. § 15.002(a) (West 2002).
Silvaris added Hale Land & Cattle Company as a defendant by its Second Amended
Petition in June 2009 and later amended further to add claims against Hale for fraud, breach of
contract and declaratory relief.
In March 2010, Alcalosa filed an original cross-claim against its co-defendant Hale. 1 Along
with its answer to Silvaris’s petition in May 2010, Hale filed a motion to transfer venue to Cass
County. The motion was dropped prior to its consideration by the trial court. Hale subsequently
1
Alcalosa entitled its pleading an “original counterclaim”; however, because it is an affirmative claim for relief against
its co-party, we refer to it as a cross-claim. See TEX. R. CIV. P. 97(e). In its cross-claim against Hale, Alcalosa asserts,
as Silvaris did, that venue is proper in Maverick County as the county in which all or a substantial part of the events
giving rise to the claims occurred. TEX. CIV. PRAC. & REM. CODE ANN. § 15.002(a)(1).
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filed a second amended answer, original counterclaim against Silvaris and cross-claim against
Alcalosa in September 2010.
Upon the completion of substantial discovery, Silvaris and Alcalosa determined they no
longer had any claims against each other, and Alcalosa requested to be realigned with Silvaris
because the two shared common claims and defenses against Hale. Silvaris likewise requested the
same realignment of the parties for purposes of trial.
At a pre-trial hearing on November 7, 2012, the trial court orally granted Silvaris’s and
Alcalosa’s request for realignment. Hale offered no objection. Counsel for Hale then attempted to
re-assert their earlier objections to venue on the basis that, as a result of the realignment, there was
no longer a defendant with residence in Maverick County. 2 The trial court declined to address the
issue of venue at that time as there was no motion seeking to transfer venue before the court.
Approximately one month later, on December 5, Hale filed its “objections to joinder” and
a second motion to transfer venue to Cass County. After a hearing, the trial court signed an order
on January 10, 2013 denying Hale’s motion to transfer venue on the basis of waiver but took no
action with respect to Hale’s objections to joinder. Hale filed this interlocutory appeal from the
order denying transfer of venue.
Along with its initial brief, Hale filed a motion requesting leave to combine a request for
mandamus relief with the interlocutory appeal. This court denied Hale’s motion for leave without
prejudice to the filing of a separate petition for writ of mandamus. Hale filed its petition for writ
of mandamus on May 22, 2013, which was consolidated with the interlocutory appeal by order of
this Court on May 23, 2013.
2
Hale makes this assertion despite its cross-claim against Alcalosa filed in September 2010.
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In the interlocutory appeal, Hale contends the trial court erred by determining that each of
the plaintiffs could independently establish proper venue in Maverick County, and by implicitly
determining that Alcalosa established the elements required by the Civil Practice and Remedies
Code section 15.003(a). See TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(a) (West Supp. 2012)
(providing elements a plaintiff unable to independently establish proper venue must each establish
in a suit involving multiple plaintiffs in order to avoid transfer or dismissal). In its mandamus
petition, Hale argues the trial court abused its discretion by refusing to transfer venue and,
alternatively, by refusing to rule on Hale’s objections to joinder.
DISCUSSION
Interlocutory Appeal
As a threshold issue, we must determine whether this court’s appellate jurisdiction is
properly invoked. Appellees Silvaris and Alcalosa argue Hale’s interlocutory appeal must be
dismissed for lack of jurisdiction because “[n]o interlocutory appeal shall lie from” the trial court’s
determination of venue questions. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.064(a) (West
2002). Hale responds “this is not a venue appeal but a joinder appeal,” and interlocutory review is
available pursuant to section 15.003(b). See TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(b) (West
Supp. 2012) (allowing interlocutory appeal of trial court’s determination under subsection (a) of a
plaintiff’s ability to either establish proper venue or establish the items required by subsections
(a)(1)-(4)).
Appellees are correct that, generally, interlocutory appeal is not available from the trial
court’s determination of a venue question. See id. § 15.064(a). The legislature has provided in
section 15.003(b), however, in cases involving multiple plaintiffs, a limited right to interlocutory
appeal to challenge a trial court’s determination that a plaintiff did or did not independently
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establish proper venue, or did or did not establish the items required by subsections (a)(1)-(4). 3
See TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(b). We determine that this court has jurisdiction
over this interlocutory appeal pursuant to section 15.003(b). See Ramirez v. Collier, Shannon,
Scott, PLLC, 123 S.W.3d 43, 50 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (discussing
changes to the language of section 15.003 since the Texas Supreme Court’s holding in Am. Home
Prod. Corp. v. Clark, 38 S.W.3d 92 (Tex. 2000)). We must now consider the issues raised by
Hale’s “joinder appeal.”
Hale contends the trial court’s realignment of parties for purposes of trial at the pre-trial
hearing on November 7, 2012 was, in effect, a joinder of Alcalosa as an additional plaintiff. Despite
the fact that Silvaris and Alcalosa had previously requested realignment on several occasions
beginning as early as January 2011, Hale did not assert any objections to “joinder” until after the
trial court orally granted Alcalosa’s and Silvaris’s request to realign the parties. At the pre-trial
hearing on November 7, Hale’s counsel affirmatively stated on the record that Hale had no
opposition to the request for realignment. Nearly one month later, on December 5, Hale filed
objections to “joinder” asserting that Alcalosa was unable to independently establish venue in
Maverick County or to meet the requirements of section 15.003(a)(1)-(4). TEX. CIV. PRAC. & REM.
CODE ANN. § 15.003(a).
3
Section 15.003(a) includes: “If a plaintiff cannot independently establish proper venue, that plaintiff’s part of the
suit, including all of that plaintiff’s claims and causes of action, must be transferred to a county of proper venue or
dismissed, as is appropriate, unless that plaintiff, independently of every other plaintiff, establishes that: (1) joinder of
that plaintiff or intervention in the suit by that plaintiff is proper under the Texas Rules of Civil Procedure; (2)
maintaining venue as to that plaintiff in the county of suit does not unfairly prejudice another party to the suit; (3)
there is an essential need to have that plaintiff’s claim tried in the county in which the suit is pending; and (4) the
county in which the suit is pending is a fair and convenient venue for that plaintiff and all persons against whom the
suit is brought.” TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(a).
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Even if we were to agree that the trial court’s realignment of the parties for purposes of
trial was, as Hale suggests, a “joinder” ruling, 4 Hale waived any complaint by its affirmative
representation of “no opposition” to the realignment prior to the trial court’s ruling. Because Hale
has waived any objection to joinder, we overrule the issues raised in Hale’s interlocutory appeal.
See TEX. R. APP. P 33.1.
Mandamus Relief
Turning to Hale’s request for mandamus relief with respect to the trial court’s denial of its
motion to transfer venue, the court is of the opinion Hale is not entitled to the requested relief. The
denial of a motion to transfer venue is generally not grounds for mandamus review, absent
exceptional circumstances. In re Masonite Corp., 997 S.W. 2d 194, 197 (Tex. 1999) (orig.
proceeding) (remedy by appeal is generally adequate even though it may involve more delay and
expense; venue determinations as a rule are not reviewable by mandamus). On rare occasions, an
appellate remedy may become inadequate, such as when a trial court’s actions are taken with such
disregard for guiding principles of law that irreparable harm will result. Id. Hale argues such
exceptional circumstances exist in this instance. We disagree.
Even if the trial court’s venue determination were erroneous, the merits of which we do
not address, we conclude Hale has not established it lacks an adequate remedy by appeal, which
is a prerequisite to mandamus relief. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136
(Tex. 2004) (orig. proceeding); see also In re Masonite Corp., 997 S.W.2d at 199 (where the trial
4
Parties and claims may be brought into a lawsuit by any one of several methods, including original petition (TEX. R.
CIV. P. 22), counterclaim (TEX. R. CIV. P. 97), cross-claim (TEX. R. CIV. P. 97 (e)), impleader (TEX. R. CIV. P. 38),
intervention (TEX. R. CIV. P. 60, 61) and others. The record indicates Alcalosa has been a party to the lawsuit since
2008 and has been placed in the attitude of plaintiff as to Hale since its original cross-claim in March 2010. See TEX.
R. CIV. P. 85.
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court erroneously denies venue transfer motion and only the resources of the errant trial court and
the parties are involved, mandamus will not issue).
CONCLUSION
Based upon the foregoing analysis, we overrule the issues raised by Hale’s interlocutory
appeal. Additionally, because Hale has failed to establish it does not have an adequate remedy by
appeal of the venue determination following trial on the merits, the petition for writ of mandamus
is denied. See TEX. R. APP. P. 52.8 (a).
Rebeca C. Martinez, Justice
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