in Re: Adan Volpe Properties, Ltd. and Maricela Volpe as General Partner

NUMBER 13-09-00443-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE ADAN VOLPE PROPERTIES, LTD. AND
MARICELA VOLPE AS GENERAL PARTNER

On Petition for Writ of Mandamus.

OPINION

Before Justices Rodriguez, Garza, and Vela
Opinion by Justice Rodriguez

By petition for writ of mandamus, relators, Adan Volpe Properties, Ltd. (“AVP”) and

Maricela Volpe as general partner, challenge an order of the trial court transferring venue

based on the mandatory venue provision governing suits for injunction. See TEX . CIV.

PRAC . & REM . CODE ANN . § 65.023 (Vernon 2008). As stated herein, we conditionally grant

the petition for writ of mandamus.
 I. BACKGROUND

In approximately 2003, Donato Volpe Jr., represented by Eustorgio Perez, brought

suit against AVP, Maricela Volpe, and Diana E. Volpe in the 111th District Court of Webb

County. Donato sought rescission of a purchase and sale agreement wherein he sold his

share of the AVP partnership to AVP. According to his first amended petition, Donato

lacked the mental capacity to enter into the purchase and sale agreement, and the

defendants, through constructive fraud and mental coercion, used their familial relationship

and status as his partners to take advantage of him and force the sale. Ultimately, the

parties agreed to have the matter arbitrated pursuant to the terms of the partnership

agreement.

The trial court appointed Luis Antonio Figueroa to serve as arbitrator and dismissed

the case by order signed on May 17, 2005. Nevertheless, the matter did not immediately

proceed to arbitration. The 111th District Court of Webb County set this cause on its

“dismissal docket” on October 7, 2005, despite the fact that the cause had already been

dismissed. The parties appeared and discussed the procedural history of the case with

the trial court, who instructed the court coordinator to remove the case from the court’s

docket.

More than three years later, on September 5, 2008, Figueroa sent the parties

correspondence attempting to set the matter for arbitration. AVP and Maricela refused to

recognize Figueroa’s authority to serve as arbitrator and refused to participate in arbitration

given the “long passage of time.”

On January 20, 2009, AVP and Maricela filed suit against real parties in interest,

Donato, Perez, and Figueroa, in the 332nd District Court of Hidalgo County, Texas,

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bringing causes of action for fraud, breach of fiduciary duty, conspiracy, defamation and

libel, intentional infliction of emotional distress, invasion of privacy, and racketeering. The

petition sought a declaratory judgment, a temporary restraining order, a temporary

injunction, a permanent injunction, and actual and exemplary damages. AVP and Maricela

alleged that:

Venue is proper in Hidalgo County, Texas as all or a substantial part of the
events or omissions giving rise to the claim occurred herein. CPRC 15.002.
Further, venue is proper as Hidalgo County is the principal place of business
of Adan Volpe Properties, Ltd. and the residence of Maricela Volpe, its
General Partner. Plaintiffs herein allege libel, slander and invasion of
privacy. CPRC section [15.017]. Further, venue is proper in Hidalgo County
under the liberal venue provisions of 18 U.S.C. sec. 1961-68, the Civil RICO
statute, as well as 18 U.S.C. sec. 1965(b). Finally, venue is proper in
Hidalgo County, Texas as the injunctive relief sought is ancillary to the tort
and other claims made in this suit.

Donato, Perez, and Figueroa each filed motions to transfer venue contending that

mandatory venue exists in Webb County under section 65.023 of the civil practice and

remedies code, which is the mandatory venue provision for suits seeking injunctive relief.

See TEX . CIV. PRAC . & REM . CODE ANN . § 65.023. The trial court granted the motions to

transfer and specifically transferred venue to the 111th District Court of Webb County.

This original proceeding ensued.1

II. MANDAMUS

The general rule is that a venue ruling is not a final judgment ripe for appeal. See

TEX . CIV. PRAC . & REM . CODE ANN . § 15.064(a) (Vernon 2002); TEX . R. CIV. P. 87(6) (“There

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W e note the unusual procedural posture of this case, wherein the challenge to a transfer order
based on m andatory venue com es from the plaintiffs below, who are challenging an order granting a transfer
of venue, rather than the typical case, where a defendant challenges an order denying a m otion to transfer
venue. See generally T EX . C IV . P RAC . & R EM . C OD E A N N . § 15.0642 (Vernon 2002) (allowing a “party” to bring
an original proceeding to enforce m andatory venue).

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shall be no interlocutory appeals from such determination.”). However, section 15.0642

of the civil practice and remedies code provides for mandamus relief to enforce a

mandatory venue provision:

A party may apply for a writ of mandamus with an appellate court to enforce
the mandatory venue provisions of this chapter. An application for the writ
of mandamus must be filed before the later of:

(1) the 90th day before the date the trial starts; or

(2) the 10th day after the date the party receives notice of the trial setting.

TEX . CIV. PRAC . & REM . CODE ANN . § 15.0642 (Vernon 2002); In re Transcon. Realty

Investors, 271 S.W.3d 270, 271 (Tex. 2008) (orig. proceeding); In re Tex. Dep’t of Transp.,

218 S.W.3d 74, 76 (Tex. 2007) (orig. proceeding). In these circumstances, the relator is

not required to show the lack of an adequate remedy by appeal. In re Mo. Pac. R.R., 998

S.W.2d 212, 215-16 (Tex. 1999) (orig. proceeding). The only issue presented in such

cases is the legal question regarding whether the trial court properly interpreted the

mandatory venue provision. In re Transcon. Realty Investors, 271 S.W.3d at 271; In re

Tex. Ass'n of Sch. Bds., Inc., 169 S.W.3d 653, 656 (Tex. 2005) (orig. proceeding).

III. JURISDICTION

Real parties in interest contend that this Court lacks jurisdiction over this original

proceeding. Citing In re Team Rocket, L.P., 256 S.W.3d 257, 260 (Tex. 2008) (orig.

proceeding), real parties in interest argue that “[a]fter granting a motion to transfer venue,

the transferring court and its corresponding court of appeals lose[] their jurisdiction thirty

days after the order because a transfer order is a final order for [the] transferring court.”

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Real parties further contend a motion for reconsideration does not affect this deadline and

that relators have not timely filed their petition for writ of mandamus.

We disagree with real parties’ application of Team Rocket to the facts herein. In

Team Rocket, the Texas Supreme Court considered the narrow issue regarding “whether

a plaintiff who was denied his initial venue of choice can nonsuit his case in the transferee

county and refile in a third county.” Id. at 258. The supreme court concluded that once a

ruling is made on venue, that decision becomes final and cannot be vitiated by nonsuiting

and refiling. See id. at 260. In reaching this conclusion, the supreme court considered the

doctrine that while “a trial court’s ruling transferring venue is interlocutory for the parties,

and thus not subject to immediate appeal, the order is final for the transferring court as

long as it is not altered within the court’s thirty day plenary jurisdiction.” Id. This doctrine

is simply not applicable to the case herein, where we review a trial court’s ruling based on

mandatory venue by original proceeding, and not appeal, and moreover, where relators

have been provided a specific statutory deadline for filing a petition for writ of mandamus.

See TEX . CIV. PRAC . & REM . CODE ANN . § 15.0642. Accordingly, we proceed to review the

merits of this original proceeding.

IV. STANDARD OF REVIEW

In a mandamus regarding the application of mandatory venue, the appellate court

reviews the trial court’s ruling on a motion to transfer for an abuse of discretion. In re

Applied Chem. Magnesias Corp., 206 S.W.3d 114, 117 (Tex. 2006) (orig. proceeding). A

trial court has no discretion in determining what the law is or in applying the law to the

facts. See In re Mo. Pac. R.R. Co., 998 S.W.2d at 216. A trial court abuses its discretion

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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. In re

Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per

curiam); In re Fort Bend County, 278 S.W.3d 842, 843 (Tex. App.–Houston [14th Dist.]

2009, orig. proceeding). The trial court has no discretion in determining the legal principles

controlling its ruling or in applying the law to the facts. In re Mo. Pac. R.R. Co., 998 S.W.2d

at 216. In determining whether venue was or was not proper, the appellate court reviews

the entire record, including the trial on the merits, if applicable. See TEX . CIV. PRAC . & REM .

CODE ANN . § 15.064(b) (Vernon 2002); Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d

259, 261 (Tex. 1994).

V. MOTION TO TRANSFER VENUE

Venue may be proper in more than one county under the general, mandatory or

permissive venue rules. See GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 544

(Tex. 1998). The plaintiff is given the first choice of the venue in which to file suit, but upon

challenge by the defense, bears the burden to prove venue is maintainable in that county.

TEX . R. CIV. P. 87(2)(a); see also GeoChem, 962 S.W.2d at 544; In re Masonite Corp., 997

S.W.2d 194, 197 (Tex. 1999) (orig. proceeding). The plaintiff files suit in any permissible

county or, in the case of mandatory venue provisions, in the county mandated by statute.

Wilson, 886 S.W.2d at 260; Kshatrya v. Tex. Workforce Comm'n., 97 S.W.3d 825, 830

(Tex. App.–Dallas 2003, no pet.).

A defendant raises the question of proper venue by objecting to a plaintiff's venue

choice through a motion to transfer venue. See TEX . R. CIV. P. 86. A defendant may move

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to transfer venue on grounds that mandatory venue lies in a different county. Id. 86(3)(b).

A party must establish mandatory venue by prima facie proof. Id. 87(3)(c). If a plaintiff's

chosen venue rests on a permissive venue statute and the defendant files a meritorious

motion to transfer based on a mandatory venue provision, the trial court must grant the

motion. Wichita County v. Hart, 917 S.W.2d 779, 781 (Tex. 1996); Spin Doctor Golf, Inc.

v. Paymentech, L.P., 296 S.W.3d 354, 357 (Tex. App.–Dallas 2009, pet. dism’d); Morris

v. Tex. Parks & Wildlife Dep’t, 226 S.W.3d 720, 723 (Tex. App.–Corpus Christi 2007, no

pet.).

VI. ANALYSIS

As an initial matter, we note that relators filed suit in Hidalgo County based on both

permissive and mandatory venue provisions. Texas Civil Practice and Remedies Code

section 15.004 provides that when a plaintiff properly joins two or more claims and one of

the claims is governed by a mandatory venue provision, the lawsuit must be brought in the

county required by the mandatory venue provision. See TEX . CIV. PRAC . & REM . CODE ANN .

§ 15.004 (Vernon 2002). Further, the general scheme of the venue statutes typically

permits the plaintiff to choose between two conflicting mandatory venue provisions.

Marshall v. Mahaffey, 974 S.W.2d 942, 947 (Tex. App.–Beaumont 1998, pet. denied). In

the instant case, relators based venue, in part, on the mandatory venue provision

governing suits for libel, slander, or invasion of privacy. See TEX . CIV. PRAC . & REM . CODE

ANN . § 15.017 (Vernon 2002) (providing that such actions shall be brought 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

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residence of defendants, or any of them, or the domicile of any corporate defendant, at the

election of the plaintiff). However, section 15.016 of the civil practice and remedies code

provides that “[a]n action governed by any other statute prescribing mandatory venue shall

be brought in the county required by that statute.” Id. § 15.016 (Vernon 2002); see In re

Tex. Dep't of Transp., 218 S.W.3d at 76.

Applying these principles to the matter herein, we conclude that the separate

mandatory venue provision for injunction suits prevails over the venue provision regarding

libel, slander, and defamation found in section 15.017. See TEX . CIV. PRAC . & REM . CODE

ANN . § 15.016; In re Tex. Dep't of Transp., 218 S.W.3d at 76; In re Dole Food Co., 256

S.W.3d 851, 855-56 (Tex. App.–Beaumont 2008, orig. proceeding). Accordingly, we

proceed to analyze real parties’ claims that venue is proper in Webb County based on

relator’s claims for injunctive relief.

Real parties contend that Webb County is the county of mandatory venue based on

section 65.023 of the civil practice and remedies code because relators are trying to

prevent real parties from proceeding with arbitration and are thus “seeking to enjoin

Defendants and to enjoin a pending suit.” According to real parties, they reside in Webb

County and the “suit” relators seek to enjoin is in Webb County, and accordingly, venue

is mandatory in Webb County. See TEX . CIV. PRAC . & REM . CODE ANN . § 65.023. This

section provides for mandatory venue in cases where injunctive relief is sought:

(a) Except as provided by Subsection (b), a writ of injunction against a
party who is a resident of this state shall be tried in a district or county
court in the county in which the party is domiciled. If the writ is granted
against more than one party, it may be tried in the proper court of the
county in which either party is domiciled.

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 (b) A writ of injunction granted to stay proceedings in a suit or execution
on a judgment must be tried in the court in which the suit is pending
or the judgment was rendered.

Id. The Texas Supreme Court has held that section 65.023 “applies only to suits in which

the relief sought is purely or primarily injunctive.” In re Cont’l Airlines, 988 S.W.2d 733, 736

(Tex. 1998) (orig. proceeding). Stated otherwise, the injunction venue statute applies when

“the petition discloses that the issuance of a perpetual injunction is the primary and

principal relief sought[.]” Brown v. Gulf Television Co., 157 Tex. 607, 611, 306 S.W.2d

706, 708 (1957) (analyzing preceding version of section 65.023). Accordingly, where the

main purpose of suit is for something other than injunctive relief and the injunction is

“ancillary, incidental, or adjunctive,” section 65.023(a) does not apply. O'Quinn v. Hall, 77

S.W.3d 452, 456 (Tex. App–Corpus Christi 2002, orig. proceeding).

To determine the main purpose of the suit for purposes of deciding whether the

section applies, we examine the pleadings and the relief sought. See In re Cont’l, 988

S.W.2d at 736; Howell v. Tex. Workers' Comp. Comm’n, 143 S.W.3d 416, 432 (Tex.

App.–Austin 2004, pet. denied); see also Karagounis v. Bexar County Hosp. Dist., 70

S.W.3d 145, 147 (Tex. App.–San Antonio 2001, pet. denied) (“The true nature of a lawsuit

depends on the facts alleged in the petition, the rights asserted and the relief sought, and

not on the terms used to describe the cause of action.”). The plaintiff may have a choice

between legal and equitable remedies, but in cases where the plaintiff alleges it has no

adequate remedy at law and therefore is entitled to injunctive relief, the plaintiff has chosen

equitable relief as its primary remedy and venue is controlled by the injunction statute.

Brown, 306 S.W.2d at 709.

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 Relators argue that the Hidalgo County lawsuit is not primarily injunctive in nature

because:

In the case at bar . . . the pleadings reveal that AVP and Volpe’s
request for injunctive relief is merely ancillary to the primary relief sought —
actual and exemplary damages associated with libel, slander, invasion of
privacy, RICO violations . . ., fraud, conspiracy and intentional infliction of
emotion distress causes of action . . . . AVP and Volpe’s suit against the
defendants was brought for the purpose of deterring future defamatory acts
and conspiratorial and racketeering activities under the auspices of the
dismissed and defunct Webb County lawsuit as well as to obtain
compensation for the harm resulting from said acts and activities . . . . AVP
and Volpe’s damages claims constitute a remedy of greater import than the
injunctive relief sought and would deter future defamatory acts and
conspiratorial and racketeering activities by the defendants and compensate
AVP and Volpe for their loss.

Further, AVP and Volpe requested the injunction as a means to
prevent a multiplicity of suits and vexatious or harassing litigation, i.e., the
filing of another lawsuit in Webb County predicated on the same grounds as
the dismissed Webb County case.

As authority, relators cite Hogg v. Professional Pathology Associates, P.A., 598 S.W.2d

328 (Tex. Civ. App.–Houston [14th Dist.] 1980, writ dism'd). Hogg involved the violation

of a non-compete agreement by a pathologist who continued to provide pathology services

to the client hospital after the pathologist and hospital terminated their respective contracts

with the pathology group. Id. at 329. The pathology group sued the pathologist and the

hospital seeking damages and specific performance of the non-compete covenants. Id.

The court considered that the pathology group wanted to “maintain the sanctity” of its non-

compete contract, but concluded that the group’s claim for monetary damages would be

a greater deterrent than injunctive relief for other employees who might be tempted to

breach the agreement. Id. at 329-30. Accordingly, the Hogg court concluded that the

pathology group’s principal relief was through breach of contract, and the true nature of the

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suit was not injunctive. Id. at 330; see also Shuttleworth v. G&A Outsourcing, Inc., No. 01-

08-00650-CV, 2009 Tex. App. LEXIS 775, *9-*11 (Tex. App.–Houston [1st Dist.] Feb. 5,

2009, no pet.) (mem. op.) (holding that requests for injunctive relief were ancillary to a suit

for damages in a case involving breach of a non-compete agreement where the alleged

damages were substantial and injunctive relief was sought to prevent further breaches and

preserve evidence for discovery and trial).

Similarly, in Karagounis, a doctor filed a breach of contract lawsuit against several

state entities alleging that they breached various agreements with him pertaining to his

participation in residency programs and his services as a house staff physician. 70 S.W.3d

at 146. The Austin court held that, although the doctor labeled his requested relief as

“injunctive” in nature, the doctor was really seeking specific performance of a contract. See

id. at 147. Accordingly, the court held that section 65.023 did not apply. Id.; see also

Graybar Elec. Co. v. Gonzalez (In re Graybar Elec. Co.), Nos. 13-08-00073-CV,

13-08-00294-CV, 13-08-00333-CV & 13-08-00341-CV, 2008 Tex. App. LEXIS 6868, at *22

(Tex. App.–Corpus Christi Aug. 26, 2008, no pet.) (mem. op.) (combined appeal and orig.

proceeding) (concluding that section 65.023 was inapplicable where request for temporary

injunction was ancillary to the primary relief sought, which were damages associated with

various causes of action, including breach of contract and breach of fiduciary duty).

In contrast, in In re Dole Food Co., the Beaumont Court of Appeals concluded that

the relief sought therein was primarily injunctive in nature where the plaintiff sought

injunctive relief to protect its existing and potential contracts with clients from interference

by strangers to the contract. 255 S.W.3d at 855. The court examined Hogg and

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distinguished it by concluding that damages alone would not serve as an effective deterrent

for the defendant in this case. Id. at 854-55. Further, rather than seeking to hold the

parties to the status quo until the issues in controversy were resolved, the plaintiff sought

“substantial, permanent restraints on the defendants’ speech and conduct.” Id. The

plaintiff admitted in its pleadings that its damages resulting from the defendants'

interference with its existing and potential contracts could not “be ascertained by any

certain pecuniary standard.” Id. Based on the foregoing, the court held that the injunctive

relief sought was not clearly ancillary, incidental, or adjunctive to the plaintiff’s request for

damages, but comprised the primary relief sought, and accordingly, applied section 65.023

to the case. Id.

As stated previously, relators brought suit against real parties for fraud, breach of

fiduciary duty, conspiracy, defamation and libel, intentional infliction of emotional distress,

invasion of privacy, and racketeering. Their petition sought a declaratory judgment, a

temporary restraining order, a temporary injunction, a permanent injunction, and actual and

exemplary damages. In this case, as in Hogg, Karagounis, and Shuttleworth, a review of

the pleadings and the relief sought show that relators’ requests for injunctive relief were

sought to prevent arbitration and “further libel and slander,” and to preserve relators’ right

to trial and to prevent a multiplicity of suits. The request for injunctive relief was therefore

ancillary or adjunctive to relators’ causes of action for actual damages. In short, based on

the pleadings and relief sought, we cannot conclude that the relief sought against real

parties in interest is “purely or primarily injunctive.” In re Cont’l Airlines, 988 S.W.2d at 736.

Accordingly, section 65.023 does not apply to compel mandatory venue in Webb County.

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 VII. CONCLUSION

Because section 65.023 does not apply to this case, the trial court abused its

discretion in transferring this suit to the 111th District Court of Webb County. We

conditionally grant the petition for writ of mandamus and direct the trial court to withdraw

its order granting the transfer of venue within ten days from the date of this opinion. The

writ will issue only if the trial court fails to comply.

NELDA V. RODRIGUEZ
Justice

Delivered and filed the 12th
day of February, 2010.

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