                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00067-CV




          IN RE: VALERIE DYER HARDING




             Original Mandamus Proceeding




      Before Morriss, C.J., Moseley and Burgess, JJ.
              Opinion by Justice Moseley
                                                 OPINION
         In this original mandamus proceeding, Valerie Dyer Harding, the relator, challenges the

trial court’s order denying her motion to transfer venue. 1 The issue presented is whether the trial

court abused its discretion in denying Harding’s motion to transfer venue to Dallas County under

Section 65.023(a) of the Texas Civil Practice and Remedies Code. For the reasons below, we

conditionally grant Harding’s petition for writ of mandamus, directing the trial court to vacate its

order denying her motion to transfer venue to Dallas County and to issue an order granting her

motion. 2

I.       Background

         The Davidsons filed their original petition on April 28, 2018, in the County Court at Law

of Panola County, Texas.             This original petition contained an application for a temporary




1
 In the underlying proceeding, Danny Buck Davidson sued Harding “as next friend for Mary Alice Yarborough, Diane
Davidson, Jennifer Hattaway, Rebecca Courtney and Bradley Davidson.” According to Harding’s petition for writ of
mandamus, the real parties in interest are Danny Buck Davidson, Diane Davidson, Jennifer Hattaway, Rebecca
Courtney, and Bradley Davidson. For simplicity purposes, we will refer to the real parties in interest collectively as
“the Davidsons.” The respondent is the Honorable Terry Bailey, presiding judge of the County Court at Law of Panola
County.
2
  In In re Meyer, we held that the courts of appeals in Texas do not have jurisdiction to issue writs of mandamus to a
statutory county court under Section 22.221 of the Texas Government Code. In re Meyer, 482 S.W.3d 706, 714 (Tex.
App.––Texarkana 2016, orig. proceeding). Our decision was subsequently approved by the Texas Court of Criminal
Appeals in Powell v. Hocker, 516 S.W.3d 488, 494 (Tex. Crim. App. 2017) (orig. proceeding). Subsequently, the
Texas Legislature amended Section 22.221(b) to state, “Each court of appeals for a court of appeals district may issue
all writs of mandamus, agreeable to the principles of law regulating those writs, against: (1) a judge of a . . . statutory
county . . . court in the court of appeals district.” TEX. GOV’T CODE ANN. § 22.221(b)(1) (West Supp. 2017).
Accordingly, we now have jurisdiction to issue writs of mandamus against a statutory county court.

                                                            2
restraining order 3 and requested that after a hearing, it be converted to a temporary injunction 4 and

that on a final hearing, it be made a permanent injunction. In addition to their injunctive relief, the

Davidsons sought the imposition of a constructive trust “on the mineral interests and possibly

surface interests” of a piece of property (the Property) located in Panola County once or then

owned by Yarborough. The record shows that on September 30, 2015, Yarborough sold at least a

portion of the surface estate of that property, but retained the mineral, oil, and gas rights. 5 About

six months later, 6 Yarborough signed a durable power of attorney granting Harding the power to

(among other things) make transactions for her involving real property. 7

           The gravamen of the Davidsons’ petition was a request that the trial court prohibit Harding

from “disposing, secreting or transferring any asset or monies coming from any asset owned or

previously owned by [Yarborough].” They also sought a declaratory judgment that the March



3
 On April 18, 2018, the trial court granted the Davidsons’ request for a temporary restraining order prohibiting Harding
from “taking any action to transfer, dispose or secret any properties or assets owned or previously owned by Mary
Alice Yarbourough.”
4
 On May 14, 2018, the trial court granted the Davidsons’ application for a temporary injunction, ordering that Harding
be restrained from, among other things, “[s]elling or disposing of any real property, including mineral interests,
belonging to Mary Alice Yarborough.”
5
 On September 30, 2015, Yarborough sold the property at issue to Henry Joe Twomey and his wife, Patricia Faye
Twomey. The warranty deed showed that Yarborough retained a reservation of all of the “interest in and to the oil;
. . . gas and other minerals in and under and that may be produced from the Property.” In their application for
temporary and permanent injunctions, the Davidsons claim that they have an interest in the Property, but that “[t]he
total damage to [the Davidsons could not] be accurately measured at [that] time, which entitle[d them] to injunctive
relief.”
6
    The durable power of attorney was dated March 24, 2016.
7
 On behalf of Yarborough, Harding was also granted the power to engage in tangible personal property transactions,
stock and bond transactions, commodity and options transactions, banking and other financial institution transactions,
business operating transactions, insurance and annuity transactions, litigation, estate matters, personal and family
matters, retirement plan transactions, and tax matters.

                                                           3
2016 power of attorney was “invalid, null and void.” Further, the Davidsons’ “pray[ed] for a

constructive trust from the proceeds of the sale of said property.”

            On April 27, 2018, Harding filed a motion to transfer venue, 8 arguing that venue was

mandatory in Dallas County under Section 65.023(a) of the Texas Civil Practice and Remedies

Code because (1) the Davidsons’ suit sought injunctive relief against her and (2) at the time the

suit arose, she was a resident of Dallas County. 9 On June 5, 2018, the Davidsons filed their

response to Harding’s motion to transfer venue in which they averred, “The Plaintiffs sued the

Defendant for bilking a relative out of valuable mineral properties by taking advantage of her

diminished mental state.” The response continued, “To protect [Yarborough] from [Harding,] [the

Davidsons] have asked for a constructive trust to be imposed on the properties, and a declaration

that certain transactions are invalid. They have also sought an injunction to prevent [Harding]

from disposing of, hiding or otherwise taking more property . . . .” The Davidsons argued that

venue was proper in Panola County because (1) their lawsuit was not based primarily on injunctive

relief, but was, rather, a property dispute regarding property located in Panola County and (2) even

if their lawsuit was based on injunctive relief, Harding was still not entitled to a change of venue,

taking the position that when two mandatory venue statutes conflict, the plaintiff has the right to

elect where the suit is filed.




8
    Harding attached to her motion a sworn verification averring that she was domiciled in Dallas County.
9
 Harding also filed a motion to dismiss for lack of subject-matter jurisdiction arguing that the Davidsons did not have
standing to file suit seeking to impose a constructive trust on property that was currently owned by Yarborough or to
ask that a constructive trust be imposed on proceeds from the sale of 318.126 acres of land that Yarborough sold in
2015. Harding maintained that the Davidsons had no claim to the property owned (or once owned) by Yarborough
and had no claim to the proceeds of the sale of the property.
                                                            4
       On July 9, 2018, the trial court held a hearing on Harding’s motion to transfer venue. On

July 31, 2018, the trial court denied Harding’s motion, and Harding filed the instant petition for a

writ of mandamus with this Court on August 10, 2018, asking this Court to conditionally grant her

petition and to direct the trial court to (1) grant Harding’s motion to transfer venue, (2) vacate the

trial court’s July 31, 2018, order, (3) enter an order granting Harding’s motion to transfer venue,

and (4) transfer the pending litigation to Dallas County.

II.    Availability of Mandamus Relief

       Mandamus relief is an appropriate remedy to enforce a mandatory venue provision when a

trial court has denied a defendant’s motion to transfer venue. In re Cont’l Airlines, Inc., 988

S.W.2d 733, 735 (Tex. 1998) (orig. proceeding). An appellate court reviews the trial court’s ruling

on a motion to transfer venue under an abuse of discretion standard. In re Applied Chem.

Magnesias Corp., 206 S.W.3d 114, 117 (Tex. 2006) (orig. proceeding). A trial court has no

discretion when 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 212, 216 (Tex. 1999) (orig. proceeding).

III.   Discussion

       Generally, a plaintiff has the first opportunity to fix venue in a proper county by filing suit

in that county. In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999) (orig. proceeding). The

defendant may object to the plaintiff’s venue choice by filing a motion to transfer venue. Id. If a

defendant objects to the plaintiff’s choice of venue through a motion to transfer, the plaintiff has

the burden to present prima facie proof by affidavit that venue is maintainable in the county where

the suit has been filed. TEX. R. CIV. P. 87(3); Mo. Pac. R.R. Co., 998 S.W.2d at 216. A plaintiff


                                                  5
satisfies this burden “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.” TEX. R. CIV. P. 87(3)(a). The prima facie proof is not subject to rebuttal, cross-

examination, impeachment, or disproof. Ruiz Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993). “If

the plaintiff fails to establish proper venue, the trial court must transfer venue to the county

specified in the defendant’s motion to transfer, provided that the defendant has requested transfer

to another county of proper venue.” Masonite Corp., 997 S.W.2d at 197. On this issue, the

defendant has the burden of proof. Id.

          In this case, the trial court was tasked with determining the appropriate venue by analyzing

two mandatory venue statutes, that is, Sections 15.011 and 65.023(a) of the Texas Civil Practice

and Remedies Code. “A court considers the true nature of the dispute in making the venue

determination under section 15.011.” In re Kerr, 293 S.W.3d 353, 356 (Tex. App.—Beaumont

2009, orig. proceeding) (per curiam). In response to Harding’s motion to transfer venue, the

Davidsons maintained that venue was proper in Panola County pursuant to Texas Civil Practice

and Remedies Code Section 15.011 because the underlying lawsuit involved an interest in real

property located in Panola County. Section 15.011 of the Texas Civil Practice and Remedies Code

states,

          Actions for recovery of real property or an estate or interest in real property, for
          partition of real property, to remove encumbrances from the title to real property,
          for recovery of damages to real property, or to quiet title to real property shall be
          brought in the county in which all or a part of the property is located.

TEX. CIV. PRAC. & REM. CODE ANN. § 15.011 (West 2017). A party must allege two “venue facts,”

and establish them by prima facie proof if specifically denied, to show that venue is mandatory
                                                   6
under Section 15.011: (1) that the nature of the lawsuit fits within those listed in Section 15.011

and (2) that all or part of the property at issue is located in the county of the lawsuit. 10 In re Stroud

Oil Props., Inc., 110 S.W.3d 18, 24 (Tex. App.—Waco 2002, orig. proceeding). It is the ultimate

nature or purpose of the suit that determines whether a particular case falls under the mandatory

venue statute, and not how the cause of action is described by the parties. Bracewell v. Fair, 638

S.W.2d 612, 615 (Tex. App.—Houston [1st Dist.] 1992, no writ). The nature of the plaintiff’s

claim is governed by the principal right asserted and the relief sought in the plaintiff’s petition.11

Stroud Oil Props., 110 S.W.3d at 25.

            In their unverified response to Harding’s motion to transfer venue, the Davidsons failed to

attach any evidence, in the form of affidavit or otherwise, in support of their position that venue is

proper in Panola County. 12 Further, they did not provide prima facie proof that “the nature of the


10
     Harding does not contest that the Property is located in Panola County.
11
  In addition to their request for injunctive relief, the Davidsons also maintained that Harding tortiously interfered in
their present and expectant property interest in the Property by causing Yarborough to enter into various transactions
that affected title to the Property, and she did so at a time when Yarborough lacked the sufficient mental capacity to
enter into any agreement concerning the Property. Further, they alleged that Harding exercised undue influence over
Yarborough “to enter into the transactions the subject of this suit, including but not limited to kidnaping her and or
secreting her in an isolated fashion.” The Davidsons maintained that Harding, “through scheme, fraud, kidnapping
and undue influence caused [Yarborough] to execute a statutory power of attorney at a time when she lacked sufficient
mental capacity.” The Davidsons asked the court to impose a constructive trust on any of the assets Harding received,
to award money damages, and to order that Harding be disgorged of any assets she received from Yarborough in an
amount over $1,000,000.00. In support of their allegations against Harding, the Davidsons attached the affidavit of
Danny Buck Davidson, wherein he makes allegations consistent with those averments.
12
  Danny Buck Davidson attached an affidavit in support of the plaintiffs’ application for a temporary restraining order,
temporary injunction, and permanent injunction, stating, in part,

            3.       A true and correct copy of the mineral interest and possible surface interest are attached as
                     Exhibit A and B.

            4.       Plaintiffs are the persons with a present interest in said properties. Plaintiffs also are
                     persons who have an expectancy interests [sic] in the properties listed in Exhibit A and B.

                                                              7
suit fits within those listed in section 15.011.” Stroud Oil, 110 S.W.3d at 24. In reviewing section

15.011, we must keep in mind that the Davidsons are suing Harding, not Yarborough. Simply

stated, the Davidsons have not produced prima facie evidence that this suit seeks to partition real

property or remove any encumbrance from the title to real property, whether owned by Yarborough

or Harding. 13 Moreover, they have not provided prima facie evidence that they seek to recover

damages to real property or to quiet title to real property that is or was owned by Yarborough or

Harding.




         5.       Defendant is the person who have [sic] tortuously interfered with Plaintiffs’ rights in said
                  property by causing Mary Alice Yarborough to enter into various transactions that effected
                  [sic] the title to said property at a time when Mary Alice Yarborough lacked sufficient
                  mental capacity to execute said documents or to enter into any agreement concerning this
                  property or any other property.

         6.       Defendant exercised undue influence on Mary Alice Yarborough to enter into the
                  transactions the subject of this suit, including but not limited to kidnaping her and or
                  secreting her in an isolated fashion.

         7.       Alternatively, Defendant de-frauded Mary Alice Yarborough, lied to her and by those
                  means benefitted from the transactions in question.

         8.       Defendant through scheme, fraud, kidnaping and undue influence caused Mary Alice
                  Yarborough to execute a warranty deed at a time when she lacked sufficient mental
                  capacity. Exhibit B.

         9.       Defendant through scheme, fraud, kidnaping and undue influence cause [sic] Mary Alice
                  Yarborough to execute a statutory power of attorney at a time when she lacked sufficient
                  mental capacity. Exhibit C.

         10.      Defendant has by the same means listed above stolen from Mary Alice Yarborough money
                  and other items of value in which Plaintiffs have an interest.
13
  The Davidson focus on Section 15.011, which states, “By statute, a suit that in any way relates to the title of real
property must be brought in the county where it is located.” TEX. CIV. PRAC. & REM. CODE ANN. § 15.011 (emphasis
added). We can find no issues in the Davidsons’ pleadings or the record that relate to title to the Property. As it
pertains to Yarborough’s property, the record shows that she held title to the surface property prior to its sale;
thereafter, she held title to the oil, mineral, and gas interests.
                                                          8
       However, in support of their position that the focus of their lawsuit falls within the

parameters of Section 15.011, the Davidsons point out that they have asked the trial court to impose

a constructive trust on Yarborough’s Property and any assets stemming from the sale of the

Property. A constructive trust is considered a legal fiction and is a creation of equity to prevent a

wrongdoer from profiting from his wrongful acts. Ginther v. Taub, 675 S.W.2d 724, 728 (Tex.

1984). A constructive trust is remedial in character and has a broad function of redressing wrong

or unjust enrichment in keeping with basic principles of equity and justice.             Meadows v.

Bierschwale, 516 S.W.2d 125, 131 (Tex. 1974). In order for a party to obtain a constructive trust,

he must prove: “(1) breach of a special trust, fiduciary relationship, or actual fraud; (2) unjust

enrichment of the wrongdoer; and (3) tracing to an identifiable res.” Hubbard v. Shankle, 138

S.W.3d 474, 485 (Tex. App.—Fort Worth 2004, pet. denied).

       In their response to the petition for writ of mandamus, the Davidsons state, “[T]he

pleadings establish the real property at issue is mineral interests located in Panola County, and it

is settled that a suit for imposition of a constructive trust on real property is a suit subject to the

mandatory venue provisions of Section 15.011.” In making this assertion, the Davidsons cite In

re Lemons, 281 S.W.3d 643, 647 (Tex. App.—Beaumont 2009, orig. proceeding). In that case,

the primary request for relief was the imposition of a constructive trust on real property and a

judgment for damages, interest, and costs. Id. at 645. Unlike the facts of this case, there was no

request for injunctive relief in Lemons. The same is true of the other cases cited by the Davidsons.

See In re Kerr, 293 S.W.3d 353 (Tex. App.—Beaumont 2009, orig. proceeding); Madera Prod.

Co. v. Atl. Richfield Co., 107 S.W.3d 652, 661 (Tex. App.—Texarkana 2003, pet. denied in part,


                                                  9
dism’d in part). Regardless of the fact that the Davidsons seek a constructive trust on the property

at issue, their lawsuit remains predominately a request for injunctive relief. Moreover, they seek

to impose a constructive trust on property owned (or previously owned) by Yarborough, not

Harding, who is the sole named defendant in the Davidsons’ underlying lawsuit. 14

          The Davidsons have changed their position since the first filing of this lawsuit. When the

Davidsons filed their first pleading, they cited Texas Civil Practice and Remedies Code Section

65.023(a) as the controlling statute for venue, pleading that this was primarily a suit “in which the

primary relief sought is an injunction against the Defendant . . . .” The Davidsons have abandoned

that position. We agree with the first statement that was made by the Davidsons. Section 65.023(a)

states,

          Except as provided in 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.

TEX. CIV. PRAC. & REM. CODE ANN. § 65.023(a) (West 2008). When we examine the Davidsons’

petition, it is clear that the primary purpose of their lawsuit is to permanently prevent Harding from

selling Yarborough’s property based on the allegation that they have an “interest” in the Property.

Therefore, because the Davidsons primarily seek injunctive relief against Harding, Dallas County

is the proper venue pursuant to Section 65.023(a).

          The Davidsons argue, however, that even if Harding proved the primary purpose of this

suit was injunctive, venue in Panola County remains proper because “when there is more than one



14
 Notably, Yarborough sold the Property months before she named Harding her attorney in fact. As far as we are
aware, Yarborough was free to sell her own property without the Davidsons’ intervention.
                                                     10
county where jurisdiction is mandatory the plaintiff may choose where to sue.” Generally, the

venue statutes permit a plaintiff to choose between conflicting mandatory venue provisions.

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

Marshall, our sister court held that the plaintiffs could choose between the mandatory venue

provisions for suits to recover real property and for slander. Id. The court reasoned that neither

mandatory venue provision prevailed over the other; thus, the plaintiffs could maintain their suit

under either Section 15.011 or Section 15.017 of the Texas Civil Practice and Remedies Code. Id.

       In the present case, however, one of the mandatory venue statutes originates from outside

Chapter 15 of the Texas Civil Practice and Remedies Code. “An action governed by any other

statute prescribing mandatory venue shall be brought in the county required by that statute.” TEX.

CIV. PRAC. & REM. CODE ANN. § 15.016 (West 2017). “Section 15.016 provides that if an action

is governed by a separate mandatory venue provision, then the action shall be brought in the county

required by the separate venue provision.” In re Tex. Dep’t of Transp., 218 S.W.3d 74, 76 (Tex.

2007) (per curiam) (orig. proceeding). In Texas Department of Transportation, the Texas Supreme

Court held that venue for the plaintiffs’ Tort Claims Act cause of action against the Texas

Department of Transportation was proper in Gillespie County, and not Travis County (as had been

alleged by plaintiffs). Therefore, it did not consider the effect of the mandatory venue statute

asserted by the other defendant. Id. at 76–77. Although Gillespie County would have been the

proper county under either mandatory venue statute, the court did not reach Gillespie County’s

15.015 argument because the operation of Section 15.016 caused venue to be determined by

Section 101.102(a) of the Texas Civil Practice and Remedies Code. Id. at 76 n.1. When we apply


                                                11
the principles in that case to the facts of this case, the mandatory venue provision for injunctive

relief prevails over the venue provision found in Section 15.011.

        For these reasons, we find that the Davidsons did not meet their burden of proof to show

that venue was proper in Panola County pursuant to Section 15.011. Section 65.023(a) of the

Texas Civil Practice and Remedies Code is the applicable mandatory venue statute in this case,

thereby, making Dallas County the proper venue. The trial court erred in finding otherwise.

IV.     Conclusion

        Based on a review of the record, we conclude that the trial court should have granted

Harding’s motion to transfer venue to Dallas County. The trial court’s denial of her motion

amounts to a “clear and prejudicial error of law.” See Applied Chem. Magnesiasi, 206 S.W.3d at

119. Accordingly, we conditionally grant Harding’s petition for writ of mandamus. We direct the

trial court to vacate its order denying Harding’s motion to transfer venue to Dallas County and,

instead, issue an order granting the motion. We are confident that the trial court will comply, and

the writ will issue only in the event the trial court fails to do so.




                                                Bailey C. Moseley
                                                Justice

Date Submitted:         October 10, 2018
Date Decided:           October 11, 2018




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