REVERSED AND REMANDED; Opinion Filed March 5, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00228-CV
KEN-DO CONTRACTING, L.P., Appellant
V.
F.A. BROWN’S CONSTRUCTION, LLC D/B/A BROWN CONSTRUCTION
AND BROWN’S CONCRETE CONSTRUCTION, Appellee
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-13-09249
MEMORANDUM OPINION
Before Justices Myers, Schenck, and Carlyle
Opinion by Justice Schenck
Appellant Ken-Do Contracting, L.P. (“Ken-Do”) appeals a judgment in favor
of F.A. Brown’s Construction, L.L.C. d/b/a Brown Construction and Brown’s
Concrete Construction (“Brown”). In its first of eleven issues, Ken-Do asserts the
trial court erred in failing to transfer venue from Dallas County to Ellis County.
Because we conclude the trial court erred in failing to transfer venue to Ellis County,
we reverse the trial court’s judgment and remand the case with instructions to
transfer the case to Ellis County. Because all issues are settled in the law, we issue
this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
Ken-Do was the general contractor on a Texas Department of Transportation
construction project in Johnson County. In 2012, Ken-Do and Brown entered into a
subcontract agreement for Brown to perform concrete work related to the project.
Brown subsequently sued Ken-Do in Dallas County for breach of contract. Brown
alleged venue was proper in Dallas County because Ken-Do had a principal office
in Dallas County.
Ken-Do filed a motion to transfer venue denying it had a principal office in
Dallas County and requesting the trial court transfer venue to Ellis County, where it
maintained a principal office. Brown filed a response to Ken-Do’s motion,
supported by the affidavit of its Vice President Thomas Brown. In his affidavit,
Thomas Brown stated that Ken-Do had a principal office in Dallas County. To
support the allegation, Thomas Brown relied on various documents attached to his
affidavit that showed Ken-Do used a Dallas County post office box to conduct
business. The trial court denied Ken-Do’s motion. Following a jury trial, the trial
court rendered judgment in favor of Brown, awarding it damages and fees. Ken-Do
appealed that final judgment to this court in Ken-Do Contracting, L.P. v. F.A.
Brown’s Constr., L.L.C., No. 05-16-00373-CV, 2017 WL 3381105, at *1 (Tex.
App.—Dallas Aug. 7, 2017, pet. denied) (mem. op.).
In our prior panel opinion, we reviewed the evidence in the record to
determine whether venue was proper in Dallas County as asserted by Brown. See
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id. at *2. We concluded Brown failed to show venue was proper in Dallas County,
and we examined whether there was any probative evidence in the record at that
stage to show venue was proper in Ellis County, the county to which Ken-Do sought
transfer. See id. at *3. We concluded there was no probative evidence in the record
to show venue was proper in Ellis County. See id. Because neither party had made
the necessary venue showing, we reversed the trial court’s judgment and remanded
the case to the trial court to conduct further proceedings on the issue of venue. See
id. at *4.
The day following the issuance of our mandate in our prior opinion, the trial
court ordered that “this matter is TRANSFERRED to Johnson County, Texas,
pursuant to the Court of Appeals, Fifth District of Texas at Dallas’s Opinion of
August 7, 2017.” Brown filed a motion to reconsider in which it argued this Court
did not order the trial court to transfer venue to Johnson County or any other county
and that venue was proper in Dallas County because the parties’ contract was made
in Dallas County and Brown performed the contract in part in Dallas County. In
support of its motion, Brown submitted an affidavit in which its Vice President
described events relating to the contract that occurred in Dallas County. The trial
court denied that motion and signed an order dismissing the case for lack of
jurisdiction.
Brown petitioned this Court for mandamus relief, which we granted. See In
re F.A. Brown’s Constr., LLC, No. 05-18-00804-CV, 2018 WL 4443281, at *1 (Tex.
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App.—Dallas Sept. 18, 2018, orig. proceeding). In our mandamus opinion, we
concluded the trial court acted outside the scope of our mandate and improperly
exercised its discretion by failing to conduct further proceedings and ordering
transfer to Johnson County. See id. We then ordered the trial court to issue an order
vacating its order transferring the case to Johnson County and further ordered the
trial court to conduct further proceedings on the issue of venue. See id. at *4.
After this Court’s mandamus opinion issued, Ken-Do filed a supplemental
brief in support of its motion to transfer venue, to which it attached the affidavit of
Ken Halverson, owner of Ken-Do. The trial court conducted a hearing at which it
concluded venue was proper in Dallas County and reinstated the prior jury verdict.
Ken-Do filed this appeal.
DISCUSSION
In its first issue, Ken-Do asserts the trial court erred in failing to transfer venue
from Dallas County to Ellis County. Ken-Do argues this Court has already
considered and rejected Dallas County as a proper venue in its prior opinion and that
none of the additional evidence offered in the additional venue proceedings
subsequent to the prior appeal would support a finding that venue was proper in
Dallas County. Ken-Do urges Ellis County is proper because it is the county where
Ken-Do’s principal office is located and where a substantial part of the events or
omissions giving rise to the claim occurred.
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In our prior panel opinion, we set forth the standard of review we apply to a
trial court’s venue determination:
Section 15.064 requires that we consider the entire record, including
the trial on the merits, to determine whether venue was or was not
proper in the county of suit. TEX. CIV. PRAC. & REM. CODE ANN. §
15.064(b). If there is no probative evidence to show venue was proper
in the county of suit, we must then determine whether there is any
probative evidence in the record to show venue was proper in the
county to which transfer was sought. Id; Ruiz, 868 S.W.2d at 757. If
there is any probative evidence to show venue was proper in that
county, we remand with instructions to the trial court to transfer to that
county. Ruiz, 868 S.W.2d at 757. If there is no probative evidence to
show venue was proper in either the county of suit or the county to
which transfer was sought, we must remand to the trial court for further
proceedings on the venue issue. Id.
See Ken-Do Contracting, L.P., 2017 WL 3381105, at *2 (citing Ruiz v. Connoco,
868 S.W.2d 752, 757 (Tex. 1993)). Further, when determining venue for a breach
of contract claim, we consider where the contract was made, where it was performed,
and where it was breached. See id. at *3 (citing In re Red Dot Bldg. Sys., Inc., 504
S.W.3d 320, 323 (Tex. 2016) (orig. proceeding)).
In our prior panel opinion, we concluded there was no probative evidence in
the record that venue was proper in Dallas County. See id. Despite this Court’s
holding, Brown continued to argue in the trial court that venue was proper in Dallas
County, claiming Brown performed in part the contract at issue and breaches of the
contract occurred in Dallas County. In support of this argument, Brown submitted
an affidavit in which its Vice President described events relating to the contract that
occurred in Dallas County. In addition to Brown’s affidavit, the record contains one
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other piece of evidence submitted after this Court’s prior panel opinion: the affidavit
of Ken Halverson, owner of Ken-Do, which was attached to Ken-Do’s supplemental
brief in support of its motion to transfer venue. The trial court considered this
evidence and ultimately found venue to be proper in Dallas County despite our
earlier opinion in which we concluded there was no evidence in the trial court to
show venue was proper in Dallas County. See id.
The trial court’s final judgment reinstating the jury verdict included its
findings on venue as follows:
After reviewing the pleadings of the parties, reviewing the evidence on
file herein and hearing the arguments of counsel the Court finds that
[Ken-Do] solicited [Brown] to bid the contract at issue herein in Dallas
County, the contract at issue herein was then made and entered into in
Dallas County, performed in part in Dallas County and part of [Ken-
Do]’s breaches occurred in Dallas County. Therefore, the Court finds
Dallas County is a proper venue for this cause and the verdict returned
on December 18, 2015 of the 12 duly qualified men and women who
were selected and sworn in as the Jury in the cause should be reinstated
as the verdict of this Court.
The foregoing findings indicate the trial court found venue was proper in Dallas
County because all or a substantial part of the events or omissions giving rise to its
claim occurred in Dallas County. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 15.002(a)(1).
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Even assuming without deciding the trial court properly considered Dallas
County as a proper venue in light of this Court’s prior opinion,1 we cannot conclude
the additional evidence supports a finding that venue is proper in Dallas County.
I. Where the contract was made
In Thomas Brown’s affidavit, he alleged that he “negotiated, agreed to and
entered into” the contract at issue at a jobsite in Dallas County with Ken-Do’s
superintendent. As Ken-Do points out, this testimony contradicts Thomas Brown’s
testimony at trial that he signed the contract at Ken-Do’s office with Ken-Do’s
employee Amy Jo Ray. In Halverson’s affidavit, he testified Ken-Do had one office,
located in Waxahachie, Ellis County, Texas. Halverson further averred that Ken-
Do’s employee Amy Jo Ray worked exclusively in Ken-Do’s office and never at a
jobsite.
II. Where the contract was performed
In his affidavit, Thomas Brown further alleged Brown performed the contract
in Dallas County at least in part by “[a]cquiring, picking-up and transporting”
various components and materials that were part of the contract at issue at locations
in Dallas County. The contract at issue in this case is for Brown to perform concrete
Arguably, this Court’s prior opinion necessarily and affirmatively established that venue is not proper
1
in Dallas County such that the law of the case doctrine applies to exclude Dallas County as a proper venue
in any subsequent proceeding. As the supreme court has explained, “[b]y narrowing the issues in successive
appeals, the law-of-the-case doctrine further seeks to promote efficiency and uniformity in the decision-
making process. Requiring a party to reargue issues previously lost in the court of appeals as a predicate
to this Court’s review would obviously work at cross-purposes to the doctrine.” See Paradigm Oil, Inc. v.
Retamco Operating, Inc., 372 S.W.3d 177, 182 (Tex. 2012) (under law-of-the-case doctrine, decision
rendered in former appeal of case generally binding in later appeal of same case).
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work related to a construction project in Johnson County. More specifically, Brown
contracted to furnish all material and necessary equipment and perform all labor
necessary to “remov[e] and install[] inlets box culverts and RCP pipe.” In In re Red
Dot Building System, Inc., the supreme court found that in a breach of contract action
involving a contract for the sale of custom-made goods, the performance occurred
in the county where the goods were fabricated. See In re Red Dot Bldg. Sys., Inc.,
504 S.W.3d at 323. In contrast, in this case, the contract specifically stated Brown
was to perform concrete services in connection with a project located in Johnson
County. See id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 15.035(a) (“ . . . if
a person has contracted to perform an obligation in a particular county, expressly
naming the county . . ., suit on or by reason of the obligation may be brought against
him . . . in that county . . . .”).
III. Where the contract was breached
In his affidavit, Thomas Brown also argued Dallas County was where Ken-
Do breached the contract, asserting Dallas County was where Ken-Do made verbal
changes to the contract by insisting Ken-Do order and pay for materials from vendors
located in Dallas County and by then failing to order or pay for materials supplied
by a vendor located in Dallas County. At trial, Thomas Brown testified that Ken
Halverson insisted the materials be ordered through Ken-Do’s office. But the only
evidence of where Ken-Do’s office is located is (1) the post office box address used
by Ken-Do, which we have already concluded is not a business office, see Ken-Do
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Contracting, L.P., 2017 WL 3381105, at *2, (2) Ken-Do’s registered office in
Waxahachie, Ellis County, and (3) Halverson’s affidavit in which he testified Ken-
Do’s only office was located in Waxahachie, Ellis County, Texas. Thus, even if
Thomas Brown’s affidavit established Ken-Do’s breaches for failure to make
payments, those breaches occurred in Ellis County.
We conclude the trial court erred by finding venue proper in Dallas County
because there is no probative evidence to support such a finding. Accordingly, we
sustain Ken-Do’s first issue.
As part of its first issue, Ken-Do argues the trial court should have transferred
venue to the county to which Ken-Do sought transfer. We agree. A lawsuit may be
brought “in the county of the defendant’s principal office of this state, if the
defendant is not a natural person.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 15.002(a)(3). Principal office is defined as an office of a corporation “in which
the decision makers for the organization within this state conduct the daily affairs of
the organization.” Id. In his affidavit, Halverson states “all business decisions are
made in[,] . . . [a]ll orders for materials for projects are placed[,] . . . [and] all
materials payments are made out of . . .” Ken-Do’s sole office located in
Waxahachie, Ellis County. Accordingly, the additional evidence filed by the parties
after this Court’s prior opinion establishes Ken-Do’s principal office is located in
Waxahachie, Ellis County, Texas.
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CONCLUSION
Because we conclude there is probative evidence to show venue is proper in
Ellis County, the county to which Ken-Do sought transfer, we reverse the trial
court’s judgment and remand the case with instructions to transfer the case to Ellis
County.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
190228F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
KEN-DO CONTRACTING, L.P., On Appeal from the 134th Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. DC-13-09249.
No. 05-19-00228-CV V. Opinion delivered by Justice Schenck.
Justices Myers and Carlyle participating.
F.A. BROWN’S CONSTRUCTION, LLC
D/B/A BROWN CONSTRUCTION AND
BROWN’S CONCRETE
CONSTRUCTION, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court with instructions to transfer the
case to Ellis County.
It is ORDERED that appellant KEN-DO CONTRACTING, L.P. recover its costs of this
appeal from appellee F.A. BROWN’S CONSTRUCTION, LLC D/B/A BROWN
CONSTRUCTION AND BROWN’S CONCRETE CONSTRUCTION.
Judgment entered this 5th day of March, 2020.
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Ken-Do Contracting, L.P. v. F.A. Brown's Construction, LLC D/B/A Brown Construction and Brown's Concrete Construction
Combined Opinion