                                 NUMBER 13-15-00608-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


                      IN RE RED DOT BUILDING SYSTEM, INC.


                           On Petition for Writ of Mandamus.


                             MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
                  Per Curiam Memorandum Opinion1

        Relator, Red Dot Building System, Inc. (“Red Dot”), filed a petition for writ of

mandamus requesting that this Court direct respondent, the Honorable Sergio Valdez,

Presiding Judge of Hidalgo County Court-at-Law Number 7, to withdraw his order denying

relator’s motion to transfer venue and motion to abate. In addition, relator requests that

this Court issue immediate temporary relief staying the upcoming trial date of January 7,

2015 in this matter. See TEX. R. APP. P. 52.10 (“Temporary Relief”).



        1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
       The Court, having examined and fully considered the petition for writ of mandamus

and the applicable law, is of the opinion that the petition for writ of mandamus and

companion motion for temporary relief should both be denied. See TEX. R. APP. P.

52.8(d).

                                   I.     BACKGROUND

       On January 5, 2015, Red Dot filed suit in Henderson County against the real party

in interest, Rigney Construction & Development, LLC (“Rigney Construction”), related to

alleged money owed under a purchase order contract entered into by Red Dot and Rigney

Construction (“the Henderson County lawsuit”).           On February 6, 2015, Rigney

Construction filed a lawsuit in Hidalgo County against Red Dot alleging causes of action

for breach of contract, violations of the Texas Deceptive Trade Practices Act (“DTPA”),

and accord and satisfaction related to a contract for work on a construction project (“the

Hidalgo County lawsuit”).

       On March 2, 2015, Red Dot filed a motion to transfer venue, original answer,

verified denial, and motion to abate in the Hidalgo County lawsuit asserting that the

pending Henderson County lawsuit involves the same parties and the same claims, and

as such, requesting that either the trial court transfer venue of the Hidalgo County lawsuit

to Henderson County or abate the Hidalgo County lawsuit. On July 24, 2015, the Hidalgo

County trial court denied Red Dot’s motion to transfer venue and motion to abate.

       On August 10, 2015, Rigney Construction filed a motion to transfer venue, plea in

abatement, and original answer in the Henderson County lawsuit alleging that venue was

not proper in Henderson County, but that venue was instead proper in Hidalgo County.

On October 12, 2015, the Henderson County trial court denied Rigney Construction’s

motion to transfer venue.

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       On October 30, 2015, Rigney Construction filed an application for anti-suit

injunction in the Hidalgo County lawsuit, which asserted that the injunction was necessary

in order to “prevent Red Dot from robbing [the Hidalgo County court] of dominant

jurisdiction . . . .” On November 3, 2015, Rigney Construction applied for an ex-parte

temporary restraining order and request for temporary injunction in the Hidalgo County

trial court to enjoin Red Dot from “prosecuting, requesting any relief, attempting to depose

any party in the cause of action or taking any further action in the Henderson County

Lawsuit. . . .” That same day, the trial court granted the temporary restraining order. On

November 5, 2015, the Hidalgo County trial court extended the temporary restraining

order for fourteen days, scheduled the injunction hearing for November 18, 2015, ordered

the parties to mediation, and set the case for a jury trial on January 11, 2016.        On

November 12, 2015, the Henderson County trial court set the Henderson County lawsuit

for a jury trial on January 11, 2016.

       On November 19, 2015, the Hidalgo County trial court granted Rigney

Construction’s request for temporary injunction until 5 p.m. on November 30, 2015 and

reset the trial in the case to January 5, 2016. This original proceeding ensued. In its

petition for writ of mandamus, Red Dot requests that we direct the trial court to withdraw

its order denying Red Dot’s motion to transfer venue and/or motion to abate and instruct

the trial court to transfer the Hidalgo County lawsuit to Henderson County.           In its

corresponding motion for temporary relief, Red Dot moves that we issue a temporary

order staying the January 5, 2016 trial court date for the Hidalgo County lawsuit “until

such time as the Court has had an opportunity to review and consider [Red Dot’s] request

for mandamus relief. . . .”




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                                II.    STANDARD OF REVIEW

       To be entitled to mandamus relief, a petitioner must show that the trial court clearly

abused its discretion and that the relator has no adequate remedy by appeal. In re

McAllen Med. Ctr., Inc., 275 S.W.3d 458, 468 (Tex. 2008) (orig. proceeding). A trial court

clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to

amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839

(Tex. 1992) (orig. proceeding). With respect to resolution of factual issues or matters

committed to the trial court's discretion, for example, the reviewing court may not

substitute its judgment for that of the trial court. Id. The relator must establish that the

trial court could reasonably have reached only one decision. Id. at 840. Even if the

reviewing court would have decided the issue differently, it cannot disturb the trial court's

decision unless it is shown to be arbitrary and unreasonable. Id. A trial court has no

“discretion” in determining what the law is or applying the law to the facts. Id. Thus, a

clear failure by the trial court to analyze or apply the law correctly will constitute an abuse

of discretion, and may result in appellate reversal by extraordinary writ. Id.

       The party seeking relief has the burden to present the appellate court with a record

sufficient to establish the right to mandamus relief.         Walker, 827 S.W.2d at 837.

Mandamus is intended to be an extraordinary remedy, available only in limited

circumstances. Id. at 840. The writ will issue only in situations involving manifest and

urgent necessity and not for grievances that may be addressed by other remedies. Id.

The requirement that persons seeking mandamus relief establish the lack of an adequate

appellate remedy is a “fundamental tenet” of mandamus practice. Id.




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                            III.    MOTION TO TRANSFER VENUE

       Red Dot first asks this Court to vacate the trial court’s order denying its motion to

transfer venue.    Generally, venue determinations as a rule are not reviewable by

mandamus. In re Mendoza, 83 S.W.3d 233, 236 (Tex. App.—Corpus Christi 2002, no

pet.) (orig. proceeding) (citing In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999)

(orig. proceeding). However, a party may apply for a writ of mandamus with an appellate

court to enforce the mandatory venue provisions under the civil practice and remedies

code. TEX. CIV. PRAC. & REM. CODE ANN. § 15.0642 (West, Westlaw through 2015 R.S.);

see also In re Mendoza, 83 S.W.3d at 236 (recognizing the exception). Additionally, on

rare occasions, an appellate remedy, generally adequate, may become inadequate

because the circumstances are exceptional. In re Masonite Corp., 997 S.W.2d at 197.

       Under Texas venue law, the plaintiff has the first choice to fix venue in a proper

county by filing the suit in the county of his choice. See id. If a defendant, through a

motion to transfer venue, objects to the plaintiff’s venue choice, the plaintiff must prove

that venue is proper in the county of suit or face a transfer of his suit to a county of proper

venue. Id. If the plaintiff meets the burden, the trial court must maintain the lawsuit in

the county where it was filed. Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259,

260–61 (Tex. 1994).

       In this case, Red Dot does not assert in its petition for writ of mandamus that the

mandatory venue provisions of the civil practice and remedies code are at issue in this

case, and confirm this fact in its motion to transfer venue, to trigger the mandatory venue

exception to entitle it to mandamus relief. Furthermore, Rigney Construction laid out

specific facts and reasons in its response to Red Dot’s motion to transfer venue to meet

its initial burden to show why venue for the Hidalgo County lawsuit was proper in Hidalgo

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County and is thus, distinguishable from the mandamus relief granted in In re Masonite

based upon exceptional circumstances.         Accordingly, we hold that the respondent’s

ruling on Red Dot’s motion to transfer venue may not be reviewed by mandamus. See

In re Masonite Corp., 997 S.W.2d at 197; In re Mendoza, 83 S.W.3d at 236.

                                IV.     MOTION TO ABATE

      Red Dot next asks us to vacate the trial court’s ruling that denied its motion to

abate the Hidalgo County lawsuit. However, the Texas Supreme Court has held that the

refusal of a trial court to abate an action based on the pendency of another action is not

reviewable by mandamus unless the courts were directly interfering with each other by

issuing conflicting orders or injunctions. Hall v. Lawlis, 907 S.W.2d 493, 494 (Tex. 1995)

(orig. proceeding) (per curiam); Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985).

      Although the respondent issued a temporary injunction related to the Henderson

County lawsuit, the injunction expired on November 30, 2015 and was not in effect at the

time Red Dot filed its petition for writ of mandamus and emergency motion for temporary

relief. Red Dot further confirms this fact in a pleading filed in Hidalgo County which

stated that “Red Dot is not enjoined from pursuing its claims in the Henderson County

matter involving the same parties and claims.” Therefore, we hold that Red Dot is not

entitled to mandamus relief on this issue.

                                   V.        CONCLUSION

      For the foregoing reasons, Red Dot’s petition for writ of mandamus and emergency

motion for temporary relief are both DENIED. See TEX. R. APP. P. 52.8(a).


                                                                     PER CURIAM


Delivered and filed the
29th day of December, 2015.
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