                                  NO. 07-01-0256-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                  APRIL 17, 2002
                         ______________________________

               MASON BRISTOL and JBW LAND and MINERALS, INC.,

                                                             Appellants

                                           v.

                               PLACID OIL COMPANY,

                                               Appellee
                       _________________________________

          FROM THE 121st JUDICIAL DISTRICT FOR YOAKUM COUNTY;

                   NO. 6886; HON. KELLY G. MOORE, PRESIDING
                        _______________________________

                             MEMORANDUM OPINION
                        _______________________________


Before BOYD, C.J., QUINN and JOHNSON, J.J.

      Mason Bristol and JBW Land and Minerals, Inc. (Bristol) appeal from a final

judgment entered in favor of Placid Oil Company (Placid). Their three points of error

concern venue. That is, Bristol contends that error occurred when venue was transferred

from Tarrant to Yoakum County, Texas. So too do they assert that any venue dispute was

waived because Placid 1) did not timely secure a hearing on its motion to transfer and 2)
invoked the judicial power of the Tarrant County court before the motion was granted. We

affirm.

                          Issue One – Propriety of Order Transferring Venue

          Initially, Bristol contends that the cause should not have been transferred from

Tarrant County. He believes this is so because the mandatory venue provision described

at §15.011 of the Texas Civil Practice and Remedies Code was inapplicable.1

Furthermore, it allegedly was inapplicable because he had only sought, via the suit,

monetary damages as opposed to an interest in land. We disagree.

          Standard of Review

          “In determining whether venue was or was not proper, the appellate court shall

consider the entire record, including the trial on the merits.” T EX . CIV. PRAC . & REM . CODE

ANN . §15.064(b). This statutory provision allows us to review the decision on a record

different than that before the district court at the time it ruled upon the issue. Ruiz v.

Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993); Bleeker v. Villarreal, 941 S.W.2d 163, 167

(Tex. App.–Corpus Christi 1996, pet. dism’d by agr.). That is, we must independently

review the “entire record to determine whether venue was proper in the ultimate county of

suit.” Ruiz v. Conoco, Inc., 868 S.W.2d at 757-58. So, if in reviewing the entire record we

find any probative evidence illustrating that venue was proper in the county wherein

judgment was entered, we must affirm the decision to transfer venue to that county. Id.


          1
              Th e version of §1 5.01 1 in ex istenc e at the time su it was filed stated that:

          [a]ctions for recovery of real property or an estate or interest in real property, for partition
          of real property, to re m ove enc um bran ces from the title to real property, or to quiet title to
          real prope rty shall be brough t in the coun ty in which all or a pa rt of the prop erty is loca ted.

T EX . C IV . P RAC . & R EM . C ODE A N N . §15.011 (Ve rnon 1986 ).

                                                              2
Or, as stated by the Corpus Christi Court of Appeals, “our review considers only whether

the venue ruling was ultimately vindicated by the fully developed record.” Bleeker v.

Villarreal, 941 S.W.2d at 167.

       Application of Standard

       First, as mentioned in footnote one, suits to recover realty or an interest in realty

must be filed in the county where all or part of the property is located. TEX . CIV. PRAC . &

REM . CODE ANN . §15.011 (Vernon 1986). Second, through his live pleading at the time of

trial, Bristol sought, among other things, the imposition of a constructive trust “on the

revenue received from the [oil] well in question and the lease . . . .” (Emphasis added).

Third, a constructive trust is a relationship with respect to property subjecting one who

holds legal title to property “to convey it to another . . . .” Talley v. Howsley, 176 S.W.2d

158, 160 (Tex. 1943). Fourth, given the foregoing definition of a constructive trust, Bristol

effectively demanded the conveyance of both the mineral leasehold at issue and revenue

produced therefrom to himself. Fifth, it is indisputable that an oil and gas lease constitutes

an interest in land or realty. Jupiter Oil Co. v. Snow, 819 S.W.2d 466, 468 (Tex. 1991).

Sixth, since a mineral lease constitutes an interest in land, logic dictates that Bristol’s

demand for a constructive trust upon the lease was tantamount to an attempt to recover

an interest in realty. Seventh, since actions to recover an interest in realty must be filed

in the county wherein the land is located and the land at bar was located in Yoakum




                                              3
County, then mandatory venue was in Yoakum County, the county where judgment was

rendered.2

        In short, that the legislature intended to have disputes involving the ownership of

land resolved in the county or counties wherein the land lay is clear. Upon considering the

entire record before us, we conclude that the legislature’s intent was fulfilled at bar. The

dispute regarding the interest in realty was resolved by the district court for the county

wherein the land was located. Thus, we cannot say that venue was improper.

                      Issue Two and Three –Waiver of Right to Transfer

        Delay

        Bristol contends that Placid waived its venue complaint because it “did not secure”

a timely hearing on its motion to transfer. In support thereof, he cited authority imposing

upon the movant an obligation to request a hearing within a reasonable time, Whitworth

v. Kuhn, 734 S.W.2d 108, 111 (Tex. App.–Austin 1987, no writ), and to pursue such a

hearing. Grozier v. L-B Sprinkler & Plumbing Repair, 744 S.W.2d 306, 311 (Tex. App–Fort

Worth 1988, writ denied). Yet, as proof that the duties were breached, Bristol merely cites

to the amount of time which lapsed between the date on which Placid filed its motion and

the date on which the trial court eventually ruled on it; that period approximated 32 months.

Unmentioned by Bristol is the date on which Placid requested the hearing or the steps, if


        2
           To the extent that Bristol sought a constructive trust via an amended pleading filed after the cause
was transferred from Tarrant to Yoakum County, the amendm ent would have entitled Placid to again seek
transfer, ass um ing the Ta rrant County district co urt had initially refused to transfer the proceed ings. Gold v.
Ins all, 8 S.W .2d 542, 543 (Tex. Civ. App.–Galveston 1928, writ dism’d w.o.j.) (stating that one who has
previously waived an opportunity to transfer venue m ay re gain such opportun ity wh en the plaintiff am ends his
pleading to allege a new cause o f action implicating a different venue provision). Thus, irrespective of whether
the demand for the trust had been asserted in Bristol’s initial pleading and retained throughout the cause or
first m entione d in his last plea ding, venu e still lay in Yoak um County, i.e. the county wherein the land was
located.

                                                         4
any, taken by the company to secure one. Yet, our review of the file disclosed that Placid

prayed that the matter “be set for hearing” in the closing paragraph of its motion and in its

first amended answer filed on October 30, 1997. So, to the extent that a movant “has the

duty to request a setting,” TEX . R. CIV. P. 87(1), it appears that Placid sought one at least

twice. Given this circumstance, the record does not support Bristol’s assertion in this

respect.

       Nor does the record afford us evidence upon which to conclude that Placid

somehow acted less than diligently in pursuing the matter once a hearing was sought. Nor

can one reasonably attribute non-feasance to the company simply because 32 months

lapsed before the trial court ruled on the motion. A myriad of things could have caused

that delay. It is quite possible that Placid did nothing. Equally possible is that Placid

diligently pursued resolution of its motion but that the trial court’s docket did not permit

determination of the request. Or, it could be that the trial court awaited Bristol’s response

to the motion, which response was not filed until five weeks before the matter was formally

submitted to the court.    In any case, the burden lay with Bristol to present us with an

appellate record supporting his contention that Placid was less than diligent, In re Spiegel,

6 S.W.3d 643, 646 (Tex. App.–Amarillo 1999, no pet.), and it did not. Thus, to impute non-

feasance to the oil company would be to act upon mere speculation, something we cannot

do.

       Furthermore, it may be that delay in obtaining a hearing provides grounds for the

trial court to deny a motion to transfer. Yet, such a delay does not mean that the trial court

must deny it. It remains within its discretion to nevertheless entertain the motion on the

merits if it so chooses. Kerrville State Hosp. v. Clark, 900 S.W.2d 425, 430 n.2 (Tex.

                                              5
App.–Austin 1995), rev’d on other grounds, 923 S.W.2d 582 (Tex. 1995). Here, the court

chose to entertain it, and, we cannot hold that it abused its discretion in doing so. This is

especially so given that Bristol nowhere asserts that the delay impaired his ability to defeat

the motion.

       Invocation of Trial Court’s Jurisdiction

       Lastly, Bristol asserts that the trial court was obligated to deny the motion because

Placid invoked “the judicial power of the Tarrant County Court in a manner inconsistent

with a continuing intention to transfer venue.” The manner in which it allegedly invoked

that power was through filing a motion for summary judgment. Yet, Placid expressly made

its request for summary judgment subject to its motion to transfer venue. Under that

circumstance, seeking relief from the court did not result in waiver of the pending motion

to change venue. General Motors Corp. v. Castaneda, 980 S.W.2d 777, 783 (Tex. App.--

San Antonio 1998, pet. denied) (holding that GM did not waive its motion to transfer

because it stated in its later motions that same were subject to its venue motion).

       Next, the authorities cited by Bristol as support for his contention are inapposite.

For instance, the court in Kohut v. Mrs. Baird’s Bakeries, Inc., 478 S.W.2d 139 (Tex. Civ.

App.--Houston [14th Dist.] 1972, no writ) was faced with a situation where Baird’s pursued

summary judgment after its motion to transfer venue had been sustained. That did not

occur here. Nor was the case at bar actually tried on the merits before the venue issue

was heard; that is what distinguishes Gentry v. Tucker, 891 S.W.2d 766 (Tex. App.--

Texarkana 1995, no writ) from the dispute before us. Finally, Dossey v. Oehler, 359

S.W.2d 624 (Tex. Civ. App.--Eastland 1962, writ dism’d w.o.j.) is readily distinguishable



                                              6
since the plea of privilege filed there was made subject to a plea in abatement. That is, the

defendant in Dossey first moved to abate the proceeding and then to transfer venue,

stating that the latter was subject to the former. In doing so, it ignored the concept of due

order of pleadings. Nothing like that happened here.

       Accordingly, we overrule the three issues asserted by Bristol and affirm the

judgment entered below.



                                                                Brian Quinn
                                                                   Justice


Publish.




                                             7
