                            NUMBER 13-12-00510-CV

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


                  IN RE CITY OF CORPUS CHRISTI, TEXAS.


                       On Petition for Writ of Mandamus.


                            MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
             Memorandum Opinion by Chief Justice Valdez

      By petition for writ of mandamus, relator, City of Corpus Christi, Texas (ACorpus

Christi@), challenges an order denying its motion to transfer venue from San Patricio

County to Nueces County based on the mandatory venue provision governing suits for

injunctions. See TEX. CIV. PRAC. & REM. CODE ANN. § 65.023 (West 2008). We deny the

petition for writ of mandamus.

                                     I. BACKGROUND

      The City of Ingleside, Texas (“Ingleside”) filed a “Petition for Declaratory Judgment

and to Establish Boundary and for Injunctive Relief” against Corpus Christi in the 156th
District Court of San Patricio County. By this pleading, Ingleside sought declaratory and

injunctive relief:

               This is a suit to declare that Ingleside has jurisdiction over wharves,
       piers, docks, and similar man-made structures that (a) originate on certain
       land which is either within its city limits or is within its extra territorial
       jurisdiction and that (b) project into adjacent waters of Nueces Bay and
       Corpus Christi Bay.

       ....

              The jurisdiction of Corpus Christi as established by its Ordinance
       encompasses the waters of the bays up to the shoreline to which reference
       is made in the relevant calls of the Ordinance. Several piers, bulkheads,
       wharves, and other man-made structures of a permanent and fixed nature
       originate on and extend from the land which is within Ingleside’s jurisdiction
       across or over the shoreline into the waters. These man-made structures
       are wholly within Ingleside’s jurisdiction. As examples and not by way of
       limitation, such structures include some which extend from land within
       Ingleside city limits at the location of the former naval installation known as
       Homeport into the water, such structures which extend from land within its
       extra territorial jurisdiction at the locations of Koch/Flint Hills and Dupont
       properties into the water, and such structures which extend from land within
       its [extra territorial jurisdiction] into Jewell Fulton Channel at Signet Marine
       location.

Ingleside thus sought a declaration that these properties were within its jurisdiction and

sought “temporary injunctive relief” preventing Corpus Christi from attempting to “assess,

impose and attempt to collect taxes” on those properties, or alternatively, ordering Corpus

Christi to place “any and all such taxes as may be collected” into the registry of the court

pending final hearing.

       According to the venue allegations in the petition, venue of the suit was proper in

San Patricio County pursuant to Texas Civil Practice and Remedies Code section

15.002(a)(1) (providing for permissive venue under the general rule in the county in which

all or a substantial part of the events or omissions giving rise to the claim occurred);

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section 15.011 (requiring suits concerning real property to be brought in the county in

which the real property is located); and section 15.065 (providing that if “a river,

watercourse, highway, road, or street forms the boundary line between two counties, the

courts of each county have concurrent jurisdiction over the parts of the watercourse or

roadway that form the boundary of the county in the same manner as if the watercourse or

roadway were in that county”). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 15.002(a)(1),

15.011, 15.065 (West 2002).

       Corpus Christi filed a motion to transfer venue to Nueces County contending that

venue is mandatory there under section 65.023 of the Texas Civil Practice and Remedies

Code because it “establishes the place for trial in an application for writ of injunction.”

See id. § 65.023 (providing, in relevant part, that 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). Following a hearing, the trial court denied the motion to transfer.

       This original proceeding ensued. By one issue, Corpus Christi contends that the

trial court abused its discretion by denying a motion to transfer venue to Nueces County

when venue is mandatory there. The Court requested and received a response to the

petition for writ of mandamus from Ingleside, and further received a reply to the response

from Corpus Christi.

                                        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) (West 2002); TEX. R. CIV. P. 87(6) (AThere

shall be no interlocutory appeals from such determination.@). Section 15.0642 of the civil


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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 (West 2002); In re Transcon. Realty

Investors, 271 S.W.3d 270 (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 that it lacks 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 270; In re

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

       In this context, we note that Corpus Christi alleges that the trial court abused its

discretion in denying its motion to transfer venue because Ingleside failed to plead any

venue facts that would sustain venue in San Patricio County. Corpus Christi’s argument

is premised on its allegation that all relevant events or omissions in this suit “have

occurred and will occur in Nueces County.” The entire gravamen of the case concerns

whether taxation is occurring on property located within the geographical jurisdiction of

Nueces County, as alleged by Corpus Christi, or San Patricio County, as alleged by

Ingleside.   Accordingly, we reject Corpus Christi’s interpretation of the pleadings.

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Moreover, to the extent that Corpus Christi appears to be attacking the trial court’s ruling

insofar as it places venue in San Patricio County based on permissive venue, Corpus

Christi has not established that this case involves the “extraordinary circumstances”

necessary to depart from the general rule that permissive venue determinations are not

reviewable by mandamus. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008)

(orig. proceeding); see TEX. CIV. PRAC. & REM. CODE ANN. § 15.0642; In re Mo. Pac. R.R.

Co., 998 S.W.2d at 215–16; In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999) (orig.

proceeding). Accordingly, to the extent that the petition for writ of mandamus may raise

issues regarding permissive venue, we do not address those contentions herein.

                                  III. STANDARD OF REVIEW

       In an original proceeding 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 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).

       In reviewing a venue decision, the appellate court must conduct an independent

review of the entire record, including the trial on the merits if applicable, to determine


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whether any probative evidence supports the trial court’s venue decision. See TEX. CIV.

PRAC. & REM. CODE ANN. § 15.064(b) (West 2002); Wilson v. Tex. Parks & Wildlife Dep’t,

886 S.W.2d 259, 261 (Tex.1994). If there is any probative evidence in the entire record

that venue was proper, we must uphold the trial court’s ruling. Bonham State Bank v.

Beadle, 907 S.W.2d 465, 471 (Tex.1995).

                             IV. 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 & Riddle

Techs., 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 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 Cnty. v. Hart, 917 S.W.2d 779, 781 (Tex. 1996); Spin Doctor


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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.).

                                          V. ANALYSIS

       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 (West

2002). Relator contends that Nueces County is the county of mandatory venue based

on section 65.023 of the civil practice and remedies code. This section provides that “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.” Id. § 65.023(a).

       The Texas Supreme Court has held that section 65.023(a) Aapplies only to suits in

which the relief sought is purely or primarily injunctive.@ In re Cont’l Airlines, Inc., 988

S.W.2d 733, 736 (Tex. 1998) (orig. proceeding). Stated otherwise, the injunction venue

statute applies when Athe petition discloses that the issuance of a perpetual injunction is

the primary and principal relief sought.@ Brown v. Gulf Television Co., 306 S.W.2d 706,

708 (Tex. 1957). Accordingly, where the main purpose of suit is for something other than

injunctive relief and the injunction is Aancillary, 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). Thus, the mere possibility that a court will resort to its

injunctive powers to enforce a judgment does not by itself transform a suit into one for a


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“writ of injunction” within the meaning of Section 65.023(a). In re Cont’l Airlines, Inc., 988

S.W.2d at 736–37.

       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

Airlines, Inc., 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) (stating that “if a review of the allegations

and the prayer demonstrates that issuance of a permanent injunction would be merely

ancillary to a judgment awarding declaratory relief, [section 65.023(a)] does not apply”);

Karagounis v. Bexar Cnty. 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.”). Various courts have utilized these principles to determine whether

or not specific cases fall within the purview of section 65.023. See, e.g., In re Adan

Volpe Props., 306 S.W.3d 369, 377 (Tex. App.—Corpus Christi 2010, orig. proceeding)

(providing that in suit involving claims of fraud, breach of fiduciary duty, conspiracy,

defamation and libel, intentional infliction of emotional distress, invasion of privacy, and

racketeering, requests for injunctive relief sought to prevent arbitration and “further libel

and slander” were ancillary or adjunctive to causes of action for actual damages); In re

Dole Food Co., 256 S.W.3d 851, 855 (Tex. App.—Beaumont 2008, orig. proceeding)

(concluding that the relief sought was primarily injunctive in nature where the plaintiff

sought substantial and permanent restraints on speech and conduct and damages alone

would not serve as an effective deterrent to the complained-of conduct); Karagounis, 70


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S.W.3d at 147 (concluding section 65.023 did not apply to a breach of contract case with

the requested relief labeled as “injunctive” in nature where the claimant was actually

seeking specific performance of a contract); Hogg v. Prof’l Pathology Assocs., P.A., 598

S.W.2d 328, 329–30 (Tex. Civ. App.—Houston [14th Dist.] 1980, writ dism’d) (concluding

that a suit for breach of a restrictive covenant seeking damages and injunctive relief was

not primarily injunctive because, inter alia, the claim for monetary damages would be a

greater deterrent to other employees who might be tempted to breach the agreement

than injunctive relief); see also In re Hardwick, No. 01-12-00362-CV, 2012 Tex. App.

LEXIS 6518, at *20 (Tex. App.—Houston [1st Dist.] Aug. 2, 2012, orig. proceeding)

(holding that the equitable remedy of forfeiture does not amount to a request for an

injunction under section 65.023); 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.)

(combined appeal & orig. proceeding) (mem. op.) (concluding that section 65.023 was

inapplicable where request for temporary injunction was ancillary to the primary relief

sought, which were monetary damages associated with various causes of action,

including breach of contract and breach of fiduciary duty).

       As stated previously, Ingleside brought suit against Corpus Christi for a

declaratory judgment establishing the boundaries of its geographical jurisdiction with

regard to man-made structures of a permanent and fixed nature which originate on and

extend from land.     In connection with this request for declaratory relief, Ingleside

requested that the trial court either restrain Corpus Christi from collecting taxes on these


                                             9
structures or require Corpus Christi to place any collected taxes into the registry of the

court pending final determination of the boundary dispute. Examining the pleadings and

the relief sought, we conclude that the main purpose of the suit is to obtain a declaratory

judgment establishing the boundaries between the two cities, and the temporary

injunctive relief sought, that is, preservation of any collected taxes, is merely ancillary or

adjunctive to that relief. Although Corpus Christi contends that the relief sought by

Ingleside amounts to a permanent injunction or a temporary injunction that will become

permanent with regard to the right to tax the structures at issue, the possibility that the trial

court will resort to injunctive relief to enforce a judgment rendered in this case does not by

itself transform the suit into one for a “writ of injunction” within the meaning of Section

65.023(a). In re Cont’l Airlines, Inc., 988 S.W.2d at 736–37. In short, based on the

pleadings and relief sought, we cannot conclude that the relief sought by Ingleside in this

matter is Apurely or primarily injunctive.@ Id. at 736. Accordingly, section 65.023 does not

apply to compel mandatory venue in Nueces County.

                                      VI. CONSOLIDATION

       In a sub-issue, Corpus Christi contends that the trial court abused its discretion in

refusing to transfer venue “thereby denying consolidation of same or similar claims.”

According to the petition for writ of mandamus, a lawsuit styled San Patricio County,

Texas v. Nueces County, Texas and Nueces County Appraisal District, cause number

09-5990-C, is currently pending before the 94th District Court of Nueces County, Texas,

and that case concerns the same legal issues regarding the same man-made structures

that are at issue in this case. Corpus Christi contends that the “two lawsuits involve


                                               10
common questions of law and fact and consolidation of the actions would be in

furtherance of convenience, avoid prejudicial and different results, improve judicial

economy and tend to increase the possibility of having fair and just resolution of the

issues involved.”      In contrast, Ingleside contends, inter alia, that the matter of

consolidation has not been raised in the trial court and that any such ruling would not be

subject to review as pertaining to mandatory venue in this original proceeding.

       As a general rule, mandamus will not issue to compel an action that has not first

been demanded and refused. See In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999) (orig.

proceeding); Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991) (orig. proceeding);

Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex. 1990) (orig. proceeding). An

exception to this “demand and refusal” requirement arises if demand would be futile.

See In re Perritt, 992 S.W.2d at 446; Terrazas, 829 S.W.2d at 723. The record before us

fails to implicate the “futility” exception to this doctrine. Moreover, equity is generally not

served by issuing an extraordinary writ against a trial court judge on a ground that was

never presented in the trial court and that the trial judge thus had no opportunity to

address. See In re Michele Le, 335 S.W.3d 808, 814 (Tex. App.—Houston [14th Dist.]

2011, orig. proceeding).       Accordingly, we reject Corpus Christi’s argument that the

underlying matter should be consolidated with the Nueces County case for the purposes

of this original proceeding.

                                       VII. CONCLUSION

       Because section 65.023 of the Texas Civil Practice and Remedies Code does not

apply to this case, the trial court did not abuse its discretion in refusing to transfer this suit


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to Nueces County. We deny the petition for writ of mandamus.


                                                   ____________________
                                                   ROGELIO VALDEZ
                                                   Chief Justice

Delivered and filed the
29th day of August, 2012.




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