                                                                                      ACCEPTED
                                                                                  12-17-00370-CV
                                                                      TWELFTH COURT OF APPEALS
                                                                                   TYLER, TEXAS
                                                                               11/28/2017 9:32 AM
                                                                                        Pam Estes
                                                                                           CLERK

               CAUSE NO. 12-17-______-CV

                                       In The                      FILED IN
                                                            12th COURT OF APPEALS
                                  Court of Appeals               TYLER, TEXAS
                                                            11/28/2017 9:32:59 AM
                                       for the                     PAM ESTES
                                                                     Clerk
                              Twelfth Appellate District
                                    Tyler, Texas


      IN RE:

     RIGNEY CONSTRUCTION & DEVELOPMENT, LLC


   RELATOR’S RIGNEY CONSTRUCTION &
           DEVELOPMENT, LLC
    PETITION FOR WRIT OF MANDAMUS
TO THE HONORABLE JUDGES OF SAID COURT:

      NOW COMES RIGNEY CONSTRUCTION & DEVELOPMENT, LLC,

Relator in the above styled and numbered cause, and this its PETITION FOR

WRIT OF MANDAMUS, demonstrating that the trial court’s failure to transfer

this cause to Brooks County pursuant to mandatory venue provisions contained in

the parties’ contract was error, along with its severance of claims interwoven

claims arising from the same transactions and occurrences, and would show unto

the Court as follows:

              STATEMENT OF NATURE OF CASE

                                          1
      This matter involves construction of a school in Brooks County. Real Party

in Interest, Red Dot Building Systems, provided a quote to Relator which Relator

utilized to bid to for the construction of the school for Real Party in Interest Brooks

County I.S.D. Relator was awarded the contract with Real Party in Interest Brooks

County I.S.D., and the contract they entered required all disputes be adjudicated in

Brooks County. Relator then entered into a contract with Real Party in Interest

Red Dot Building System, which also incorporated such forum selection clause.

When, in violation of the contract, Red Dot Building System sued Relator in

Henderson County, the trial court, the 173rd District Court of Henderson County,

Hon. Dan Moore presiding, refused to transfer the case to Brooks County.

Furthermore, to maintain improper venue in Henderson County, the trial court

severed Relator’s third party claims against Real Party Brooks County I.S.D., even

though such claims arise out of the very same transactions and occurrences, and

create the very real specter of inconsistent jury verdicts. Relator herein seeks relief

from both determinations.

                 STATEMENT OF JURISDICTION

      This Court possesses jurisdiction pursuant to Tex. Civ. Prac. & Rem. Code

§15.0642, which authorizes this Court to grant writs of mandamus to effectuate

mandatory venue provisions. This Court also possesses jurisdiction pursuant to

Tex. Gov't Code §22.221 which authorizes this Court to issue writs of mandamus

                                          2
when a trial court has refused to enforce a forum selection clause, and when a trial

court has improperly severed claims arising out of the same transactions and

occurrence.

                          ISSUES PRESENTED

      Did the trial court err in refusing to enforce the mandatory venue provisions

of parties’ contract?

      Did the trial court err in refusing to transfer venue, when the plaintiff failed

to file a response to the defendant’s motion?

      Under the current mandatory venue statutes, is Brooks County I.S.D. entitled

to be sued in Brooks County?

      Can this Court grant mandamus relief because the trial court refused to

enforce mandatory venue provisions, both contractual and statutory?

      Does Texas follow policies and procedures to promote judicial economy?

      Is a trial court authorized to sever claims against parties arising out of the

same transaction and occurrence, merely to permit the plaintiff to effectuate its

improper choice of forum?

      Is a trial court authorized to sever contribution claims?

      Can this Court grant mandamus relief, when a trial court improperly severs

causes of action?

                        STATEMENT OF FACTS
                                          3
      Much like the fabled case of Jarndyce v. Jarndyce, this matter constitutes

the continuation of a long running controversy. See, In re Red Dot Building

System, Inc., 504 S.W.3d 320 (Tex. 2016); In re Philadelphia Indemnity Ins. Co.,

2017 WL 3224886 (Tex. App.--Tyler 2017, no pet). Such long history clearly

demonstrates improper litigant and judicial attempts to maintain a controversy

before it, when the controversy clearly belongs in another forum.

      Brooks County I.S.D., Real Party in Interest (hereinafter referred to as

“School District”) desired the construction of a new building. After requesting

proposals, Brooks County I.S.D. selected Rigney Construction & Development,

Relator herein, to be the general contractor on the project. As a result, the parties

entered a detailed contract containing plans and specifications. This contract also

contained a forum selection clause, mandating venue for all disputes in Brooks

County. Exh. A.

      In order to perform this contract, Relator (hereinafter referred to as “General

Contractor”) entered into a contract with Real Party in Interest Red Dot Building

Systems, for providing a steel building. Such contract incorporated the contract

between School District and General Contractor, including its venue provision.

Exh. B.

      During the course of performance, Red Dot Building Systems (hereinafter

referred to as “Subcontractor”) claimed that School District’s plans and


                                         4
specifications were contained numerous errors, requiring them to perform

additional work, and thus demanded additional compensation. When the architect

who informally arbitrated the matter ruled against it, Subcontractor filed suit in

Henderson. Exh. C. In response, General Contractor filed a motion to transfer

venue, claiming that mandatory venue lay in Brooks County.                          Exh. D-1.

Subcontractor failed to file a timely venue response as required by Tex. R. Civ. P.

87(1); the response was filed seven days before the hearing (instead of the

mandated thirty). Exh. D-2. General Contractor expressly objected. Exh. D-3.

Subcontractor never requested leave for late filing, and the trial court never granted

leave.1 As a result, Subcontract failed to satisfy its burden of demonstrating proper

venue; indeed, the trial court had nothing before it which in any way supported

Subcontractor’s position. Nevertheless, the trial court refused to transfer the matter

to Brook County. Exh. D-4.

       At the hearing on the motion to transfer venue, the trial court specifically

ordered General Contractor to file a third party petition against School District.

The trial court further indicated that when General Contractor did so, it would

transfer the matter to Brooks County. Exh. E, p. 15. Because such statement

amounted to leave to file a third party claim against School District, General

1
 To the extent that the trial court granted leave, such leave amounted to an abuse of discretion,
because Subcontractor completely failed to explain or introduce evidence why such pleading was
tardy. See, e.g., In Interest of Z.W.C., 856 S.W.2d 281, 283 (Tex. App.--Fort Worth 1993, no
writ) (trial court abused discretion by granting relief when no evidence was presented).
                                               5
Contractor did so. (Additionally, this pleading asserted a counterclaim against

Subcontractor). Exh. F. School District was duly served with citation and filed an

answer.

      Seeing its improper venue slipping away, and ignoring the fact that the trial

court had orally granted leave, Subcontractor filed a motion to strike General

Contractor’s third party petition, claiming that General Contractor had failed to

obtain leave. In the alternative, it sought to sever General Contractor’s claims

against School District, Exh. G, even though contribution claims cannot be

severed.

      In response, General Contractor filed a motion for leave to file a third party

complaint. Exh. H-1. General Contractor subsequently filed a more detailed

response to Subcontractor’s motion to strike, pointing out that severance was

improper because of the interwoven nature of the claims, and because claims for

contribution were being asserted. Exh. H-2. In the meantime, School District filed

an answer, seeking transfer of the case to Brooks County. Exh. I.

      At the hearing on Subcontractor’s Motion to Strike, no evidence was

presented. The trial court claimed that General Contractor failed to request leave

to file its third party petition, Exh. J-1, an assertion which is demonstrably false.

Exh. H-1. The trial court expressly ignored its prior statement that it would

transfer the case to Brooks County once School District was joined as party,


                                         6
claiming it was a “brash statement” (whatever that means). Exh. J-1. Instead, in a

blatant attempt to maintain a lawsuit which it knows2 belongs in Brooks County,

the trial court severed General Contractor’s claims against School District, and

transferred them to Brooks County.                 However, the trial court maintained

Subcontractor’s claims against General Contractor before it. Exh. J-2; Exh. J-3.

       But the trial court was not authorized to sever such claims; contribution

claims cannot be severed, and Subcontractor failed to satisfy the test necessary for

severance. Furthermore, such severance raises the specter of inconsistent verdicts,

and wastes precious judicial resources.             Accordingly, General Contractor is

requesting relief from this Court.

                       SUMMARY OF ARGUMENT

       Mandatory venue between School District and General Contractor lay in

Brooks County, pursuant to the contract and the mandatory venue statutes.

Likewise, mandatory venue between General Contractor and Subcontractor lay in

Brooks County pursuant to the contract as General Contractor plead in its original

motion to transfer venue, especially since Subcontractor failed to file a timely

venue response. Accordingly, the trial court erred in failing to transfer venue to

Brooks County, which warrants mandamus relief.


2
 For another example of completely tortured and legally incorrect reasoning by the trial court to
maintain venue of the underlying lawsuit, please see this Court’s initial opinion in In Re:
Philadelphia Indemnity Ins. Co., Cause No. 12–17–00117–CV (Tex. App.--Tyler 2017, no pet.).
                                               7
      School District was entitled to venue in Brooks County, and its entitlement

to such venue requires the entire case to be transferred there. Recognizing this, the

trial court severed School District and returned it to whence it came, even though

under Subcontractor’s factual theory, School District caused its entire problems

with deficient plans and specifications. But the trial court abused its discretion in

doing so, because the interwoven requirement for severance was not satisfied, and

because contribution claims cannot be severed from the main case. Accordingly,

the trial court erred, warranting mandamus relief.

                                ARGUMENT

[A] Mandatory Venue Lies in Brooks County

      {1} Parties Contractually Agreed to Venue in Brooks County

      School District and General Contractor entered into a contract concerning

the construction of the school. The general conditions of the contract Article 13.1

provided as follows:

             Exclusive venue for any action arising out of the Project
             or the Contract Documents is in the state courts of the
             county in which the Owner's administrative offices are
             located. Exh. A, §13.1.

This provision is also incorporated into the contract between General Contractor

and Subcontractor. Exh. B.

      Subcontractor submitted its bid for its Pre-Engineered Metal Building scope


                                         8
of work "per plans and specs", with only the listed deviations. Abolition of the

venue provisions was not among them. Exh. B, p. 5. Subcontractor's bid not only

incorporated the plans, but also in section 13120 of the “specifications”,

specifications which Subcontractor referenced in its bid. Exh. B-1.        Part 1,

1.00(A) of said section incorporates the exclusive venue provision as part of

Subcontractor’s section and requirements. Since Subcontractor’s bid was per plans

and “specifications”, Subcontractor incorporated such provisions, and now cannot

deny that it is bound by the mandatory venue provision in Brooks County.

      Under general principles of Texas contract law, separate terms may be

incorporated by reference into a contract. Tribble & Stephens Co. v. RGM

Constructors, L.P., 154 S.W.3d 639, 663 (Tex. App.--Houston [14th Dist.] 2004,

pet. denied). “A contractual term is not rendered invalid merely because it exists

in a document incorporated by reference.” In re D. Wilson Constr. Co., 196

S.W.3d 774, 781 (Tex. 2006).        Accordingly, the forum selection provision

contained in the School District/General Contractor contract was incorporated into

the contract between General Contractor and Subcontractor. See, Bancroft Life &

Cas. ICC, Ltd. v. Davnic Ventures, L.P., 2013 WL 1222112 (S.D. Tex. 2013);

Bancroft Life & Cas. ICC, Ltd. v. FFD Resources III, LLC, 2012 WL 2368302

(S.D. Tex. 2012).

      Despite any prior hostility to such clauses, Texas' venue statutes now


                                        9
provide:

             An action arising from a major transaction shall be
             brought in a county if the party against whom the action
             is brought has agreed in writing that a suit arising from
             the transaction may be brought in that county.

Tex. Civ. Prac. & Rem. Code §15.020(b).            This statutory provision creates

mandatory venue. In re Group 1 Realty, Inc., 441 S.W.3d 469, 472 (Tex. App.--El

Paso 2014, no pet.). Indeed, this provision controls over all other possible venue

provisions. In re Fisher, 433 S.W.3d 523, 532 (Tex. 2014). As applied herein, the

trial court erred in failing to transfer venue.

      Furthermore, the trial court erred in failing to transfer venue because

Subcontractor failed to file a timely response (and thus it was not before the court).

Because Subcontractor’s response was not before the trial court, likewise its

arguments and evidence were not properly before the trial court. Cf., Benchmark

Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996)(late filed summary judgment

evidence not before trial court unless leave granted); unlike the plea of privilege, a

motion to transfer venue is not an evidentiary hearing. Tex. R. Civ. P. 87.3(b).

      Moreover, the lack of a response requires a transfer of venue. After a

defendant has filed a motion to transfer venue, the burden shifts to the plaintiff to

present evidence the venue is proper. Tex. R. Civ. P. 87.2(a). If no evidence of

proper venue has been presented, then the trial court must transfer venue. The best

analogy is a no evidence motion for summary judgment; after a proper motion has
                                            10
been filed, the non movant must file a response, or else the trial court must grant

the motion. Lucio v. John G. and Marie Stella Kenedy Mem'l Foundation, 298

S.W.3d 663, 672 (Tex. App.--Corpus Christi 2009, pet. denied).

      {2} School District Entitled to Venue in Brooks County

      In addition to the mandatory venue provision in the contract, it is also

undisputed that School District is a political subdivision. Pursuant to statute,

mandatory venue lies in the county where a school district is located. Tex. Civ.

Prac. & Rem. Code §15.0151. As applied to the case at bar, this is Brooks County.

And because School District is entitled to venue in Brooks County, the entire case

must be transferred there.

      {3} Mandamus Appropriate to Enforce Mandatory Venue

      Traditionally, in order to obtain mandamus relief, a relator was required to

demonstrate an abuse of discretion for which he lacked an adequate remedy at law.

Regardless of such traditional requirements, the Texas Legislature has expressly

provided that a litigant is entitled to mandamus relief to enforce mandatory venue

provisions.      Tex. Civ. Prac. & Rem. Code §15.0642. Accordingly, General

Contractor is entitled to a writ of mandamus herein if it proves entitlement to

mandatory venue. Id. It has clearly done so. Accordingly, mandamus relief is

proper herein.

      Likewise, it is well settled that mandamus relief is proper to enforce forum


                                        11
selection clauses. In re Zotec Partners, LLC, 353 S.W.3d 533, 536 (Tex. App.--

San Antonio 2011, no pet.). "[A]n appellate remedy is inadequate when a trial

court improperly refuses to enforce a forum selection clause because allowing the

trial to go forward will vitiate and render illusory the subject matter of an appeal--

i.e., trial in the proper forum." In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883

(Tex. 2010). Such authority also authorizes this Court to transfer venue Brooks

County.

[B] Trial Court Erred in Severing Cases

      {1} Texas Requires Judicial Economy

      Texas possesses a long standing policy of precluding multiplicity of suits.

Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 651 (1958); State ex rel. City of

Colleyville v. City of Hurst, 519 S.W.2d 698, 701 (Tex. Civ. App.--Fort Worth

1975, writ ref’d n.r.e.). Thus, a plaintiff can join all claims which he possesses

against a defendant, Roberts v. Dunn, 426 S.W.2d 273, 275 (Tex. Civ. App.--

Dallas 1968, no writ), and must do so if the claims arise from the same the same

transaction or occurrence. Barr v. Resolution Trust Corp. ex rel. Sunbelt Federal

Savings Ass’n, 837 S.W.2d 627, 630-31 (Tex. 1992). Likewise, a claimant can

join several defendants into a single lawsuit, if the claims against them arise out of

the same transaction or occurrence. Tex. R. Civ. P. 40. “Under the policy of our

law to avoid a multiplicity of suits, the courts are liberal in allowing parties to be


                                          12
joined when the joinder cannot result in prejudice.” Roy Mitchell Contracting Co.

v. Mueller Co., 326 S.W.2d 522, 525 (Tex. Civ. App.--Texarkana 1959, writ ref’d

n.r.e.).

       A severance divides one lawsuit into two. Kansas Univ. Endowment Ass'n

v. King, 350 S.W.2d 11, 19 (Tex. 1961). Obviously, a severance runs counter to

this policy of liberal joinder. As the Texas Supreme Court has recognized in the

class action context:

             Piecemealing personal injury litigation by having
             separate juries decide the common and individual issues
             works a substantial change in the nature of the jury trial
             itself. Such a procedure forces two juries to evaluate
             discreet issues out of context and without knowledge of
             all the evidence. This procedure can also lead to
             inconsistent verdicts between class members. Moreover,
             the common and individual issues may be so interwoven
             that the litigants would have to present much of the same
             evidence to both juries, wasting the court's time and the
             litigants' money.

Southwestern Refining Co., Inc. v. Bernal, 22 S.W.3d 425, 440 (Tex. 2000).

       {2} Severance Improper Herein Because Claims Interwoven

       In order for a severance to be proper, each of the following must be

demonstrated:

                1. the controversy involves more than one cause of
                   action;

                2. the severed claim is one that would be the proper
                   subject of a lawsuit if independently asserted; and


                                        13
                3. the severed claim is not so interwoven with the
                   remaining action that they involve the same
                   facts and issues.

F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex. 2007).

Thus, the issue is whether General Contractor’s claims against School District are

interwoven with its claims against Subcontractor, and whether Subcontractor’s

claims against General Contractor are interwoven with General Contractor’s claim

against School District and Subcontractor; after all, these causes of action all arise

from the same transaction.

      Claims are interwoven if the same issues or the same issues must be decided

in both cases. See, Coalition of Cities for Affordable Utility Rates v. Public Utility

Commission of Texas, 798 S.W.2d 560, 564 (Tex. 1990), cert. denied, 499 U.S.

983, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991).             Consequently, “Though the

propriety of severance must be reviewed on a case-by-case basis, when the severed

and unsevered claims arise out of the same transaction or occurrence and the facts

necessary to show liability and damages with regard to all claims are roughly the

same, severance is generally improper.”           Hummell v. Medaphis Physician

Services Corp., 1998 WL 35277043 at 3 (Tex. App.--Corpus Christi 1998, no

writ)(emphasis added).

      In the case at bar, the following is just a partial list of identical issues which

must be adjudicated in both the Henderson County case and the Brooks County


                                          14
case:

         What are do the plans and specifications for the
          building in question require for the pre-engineered
          metal building?

         What were School District’s obligations under
          these transactions?

         What were General Contractor’s obligations under
          these transactions?

         What were Subcontractor’s obligations under these
          transactions?

         What was actually delivered by Subcontractor?

         Did what was actually delivered by Subcontractor
          comply with the plans and specifications for these
          transactions?

         If what was actually delivered by Subcontractor
          did not comply with the plans and specifications
          for these transactions, was it Subcontractor’s fault?

         If what was actually delivered by Subcontractor
          did not comply with the plans and specifications
          for these transactions, was it General Contractor’s
          fault?

         If what was actually delivered by Subcontractor
          did not comply with the plans and specifications
          for these transactions, was it School District’s
          fault?

         If what was actually delivered by Subcontractor
          complied with the plans and specifications for
          these transactions, what are the damages suffered?

         If what was actually delivered by Subcontractor
                                15
                  complied with the plans and specifications for
                  these transactions, is School District responsible
                  for the damages suffered?

                If what was actually delivered by Subcontractor
                 did not comply with the plans and specifications
                 for these transactions, what are the damages
                 suffered?

                Is Subcontractor entitled to the approximately
                 $100,000 retained by School District?

                Is General Contractor entitled to the approximately
                 $100,000 retained by School District?

                Is School District entitled to the approximately
                 $100,000 retained by it?

Likewise, the following is just a partial list of identical evidence which must be

presented in both the Henderson County case and the Brooks County case:

                Copy of initial contract between School District
                 and General Contractor (containing plans and
                 specifications).

                Copy of contract between General Contractor and
                 Subcontractor.

                Evidence of what was required under contract
                 between School District and General Contractor.

                Evidence of what was required under contract
                 between General Contractor and Subcontractor.

                Evidence of what was actually provided by
                 Subcontractor.

                Pictures of what was actually provided by
                 Subcontractor.
                                       16
                Evidence of whether goods, materials and services
                 provided by Subcontractor complied with contract
                 between School District and General Contractor.

                Evidence of whether goods, materials and services
                 provided by Subcontractor complied with contract
                 between General Contractor and Subcontractor.

                Evidence of whether goods, materials and services
                 provided by Subcontractor complied with the
                 bidding requirements of the plans and
                 specifications.

                The difference in value between goods, materials
                 and services actually provided by Subcontractor,
                 and those required in the contract between School
                 District and General Contractor.

                The difference in value between goods, materials
                 and services actually provided by Subcontractor,
                 and those required in the contract between General
                 Contractor and Subcontractor.

                The determination by the project’s architect that
                 Subcontractor was not entitled to any more
                 monies.

                The determination by the project’s architect that
                 Subcontractor was obligated to provide certain
                 items per plans and specifications.

Because of the overlap of evidence and issues, the trial court clearly abused its

discretion in severing the claims. See, e.g., Levetz v. Sutton, 404 S.W.3d 798, 803

(Tex. App.--Dallas 2013, pet. denied); Bates v. First Nat. Bank of Waco, 502

S.W.2d 181, 185 (Tex. Civ. App.--Waco 1973, no writ).


                                        17
      In addition to similarity in issues and evidence, claims are interwoven if the

severance may result in inconsistent verdicts. As one court has explained in the

context of a medical malpractice case:

            In his fourth amended petition, [patient] alleged a
            continuous course of treatment constituting one
            continuous transaction, jointly producing an indivisible
            injury. Accordingly, the damages, if any, suffered by
            [patient] from the acts [patient] alleges in the severed
            claims, necessarily relate to and are intertwined with the
            damages he suffered from the alleged acts of the Harris
            County defendants. At a single trial of all claims, the
            finder of fact will be asked, for each entity concerning
            which there is evidence of some responsibility for
            [patient’s] injuries, to assign a percentage of that
            responsibility; the percentage the finder of fact assigns to
            each such entity will necessarily affect, and be affected
            by, the percentage of responsibility it assigns to each of
            the other such entities. If the severance order were
            allowed to stand, and the case were to proceed as two
            separate suits, then that relationship would hold true only
            in the abstract, and not in practice. The severance of the
            claims into two separate suits would not, of itself,
            preclude each set of defendants from presenting evidence
            that the defendants on trial in the other suit were
            responsible for [patient’s] injuries. In each of those suits,
            the facts and issues relating to each particular entity's
            liability for [patient’s] injuries would be the same.
            Additionally, the respective triers of fact could each find
            that [patient] had been injured and that the parties over
            whom their respective courts had no jurisdiction were
            collectively 100 percent responsible for his injuries, with
            the nonsensical result that [patient] would recover
            nothing, despite those findings. On the other hand, the
            respective triers of fact could, instead, each decide that
            the parties over whom their respective courts did have
            jurisdiction were collectively 100 percent responsible for
            Jones's injuries, leading to the equally nonsensical result
                                         18
             that there would be, at least temporarily, two different
             judgments for full compensation for the same injuries to
             [patient].

             If the severance order were allowed to stand, and the case
             were to proceed as two separate suits, it is, of course, by
             no means certain that either of these most extreme results
             we have suggested here, will actually be realized.
             However, any similar but less extreme result that might
             come to pass would remain nonsensical, and therefore
             unjust, for the same reason. Accordingly, the severance
             makes an unjust result, either over- or under-
             compensating [patient] for any injuries he may ultimately
             be shown to have suffered, not merely possible, but
             probable.

Jones v. Ray, 886 S.W.2d 817, 821-22 (Tex. App.--Houston [1st Dist.] 1994, no

writ); see also, Santos v. Holzman, 2005 WL 167309 at 2 (Tex. App.--Corpus

Christi 2005, pet. denied).

      In the case at bar, the trial court’s severance creates a real prospect of

inconsistent verdicts.    School District is retaining approximately $100,000

concerning the payment of claims relating to Subcontractor’s work.          In the

Henderson County case, the jury may determine that Subcontractor is entitled to

this money. However, in the Brooks County case, the jury may determine that

School District is entitled to this money. Both cannot be correct. Accordingly, the

severed claims are clearly interwoven, and the trial court erred in holding they

were not.    See, e.g., Madeksho v. Abraham, Watkins, Nichols & Friend, 112

S.W.3d 679, 690 (Tex. App.--Houston [14th Dist.] 2003, pet. denied); Jones v.


                                         19
Ray, supra; see also, Pierce v. Blalack, 2017 WL 4320411 at 5 (Tex. App.--

Texarkana 2017, no pet.)(denial of severance proper because severance would have

created possibility of inconsistent verdicts).

      Furthermore, General Contractor questions whether severance is even

legitimately possible in this context. As previously noted, General Contractor has

sued the School District for contribution; it was School District’s plans and

specifications which created any confusion and Subcontractor’s demands in the

initial instance. A litigant is entitled to have the same jury determine all parties

who are responsible in the same lawsuit.         F.F.P. Operating Partners, L.P. v.

Duenez, supra. As a result, all claims for contribution must be tried in the main

lawsuit; they cannot be severed and tried separately.      BDO Seidman, LLP v.

Bracewell & Patterson, LLP, 2003 WL 124829 at 2 (Tex. App.--Dallas 2003, pet.

denied); Casa Ford, Inc. v. Ford Motor Co., 951 S.W.2d 865, 876 (Tex. App.--

Texarkana 1997, pet. denied). Yet, the trial court’s severance order does precisely

this, mandating that two different juries determine who is responsible, based on the

same evidence. As a result, it is improper. BDO Seidman, LLP v. Bracewell &

Patterson, LLP, supra; Casa Ford, Inc. v. Ford Motor Co., supra.

      As previously noted, one of the reasons for joinder is judicial economy, and

as the Texas Supreme Court noted approximately thirty years ago, “The need for

judicial economy has recently become more acute because the dockets of our trial


                                           20
courts are overburdened.” Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 246-47

(Tex. 1988). Furthermore, such liberal joinder reduces costs, not only costs to the

litigants but costs to the system. Atlas Roofing Co. v. Hall, 150 Tex. 611, 245

S.W.2d 477, 480 (1952).      But it is impossible to argue that the trial court’s

severance accomplishes this goal. Instead of one lawsuit to resolve all the issues,

now there are two, requiring two judges, two courtrooms, two court reporters, two

district clerks, two juries, two trials, two judgments, and two appeals. The same

evidence will need to be presented twice. The judicial system will be required to

hear and consider the same evidence twice, increasing costs to everyone involved.

Such a thwarting of the policies regarding joinder and severance shows the trial

court’s determination is wrong.

      {3} Mandamus Proper For Improper Severance

      Admittedly, mandamus will not issue “when the law provides another plain,

adequate, and complete remedy.” In re Tex. Dep't of Family & Protective Sevices,

210 S.W.3d 609, 613 (Tex. 2006). Furthermore, the issue of severance can be

reviewed on appeal. In re Hoover, Bax & Slovacek, L.L.P., 6 S.W.3d 646, 649

(Tex. App.--El Paso 1999, no writ); Nicor Exploration Co. v. Florida Gas

Transmission Co., 911 S.W.2d 479 (Tex. App.--Corpus Christi 1995, writ denied).

However, appeal “is no remedy at all for the irreversible waste of judicial and

public resources.” In re Masonite Corp., 997 S. W.2d 194, 198 (Tex. 1999).


                                        21
      Accordingly, whether mandamus or appeal constitutes the appropriate

remedy is not susceptible to rigid rules or formulas; rather, appellate courts must

consider a range of both public and private interests in determining whether the

benefits of mandamus review outweigh the detriments. In re Prudential Ins. Co. of

Am., 148 S.W.3d 124, 135-36 (Tex. 2004). Mandamus is appropriate to preserve

important substantive and procedural rights from impairment or loss, and spare

private parties and the public the time and money utterly wasted enduring eventual

reversal of improperly conducted proceedings. In re Essex Ins. Co., 450 S.W.3d

524, 528 (Tex. 2014); In re State, 355 S.W.3d 611, 615 (Tex. 2011); In re McAllen

Medical Center, 275 S.W.3d 458, 465 (Tex. 2008).

      When measured by such standards, improper granting a severance is

reviewable by mandamus, and should be issued in the case at bar. As previously

shown, because of the severance, two juries will be considering the same evidence.

Based on the same evidence, the two juries will be deciding the same issues.

Indeed, the two juries may reach inconsistent results. While the severance could

be corrected on appeal, the time and effort spent on the initial cases would not be

irreversible. Accordingly, mandamus relief is appropriate. In re Energy Resources

Technology GOM, Inc., 2012 WL 4754006 at 2 (Tex. App.--Houston [14th Dist.]

2012, no pet.); In re Oncor Elec. Delivery Co., LLC, 355 S.W.3d 304, 305 (Tex.

App.--Dallas 2011, no pet.); In re El Paso County Hospital Dist., 979 S.W.2d 10,


                                        22
13 (Tex. App.--El Paso 1998, no writ); see also, In re Lewis Casing Crews, Inc.,

2014 WL 3398170 at 5 (Tex. App.--Eastland 2014, no pet.); In re Altec Industries,

Inc., 2012 WL 2469542 at 2 (Tex. App.--Waco 2012, no pet.). To paraphrase the

Corpus Christi Court of Appeals, “If the [severance] is improperly granted,

taxpayers, the court system, and the parties themselves will suffer a meaningless

trial, only to have the results set aside on appeal. Such pleadings, motions,

discovery, jury selection, evidence, trial and eventual judgment amount to a clear

waste of judicial resources, causing the loss of rights, rendering mandamus

proper.” In re Estrada, 492 S.W.3d 42, 46 (Tex. App.--Corpus Christi 2016, no

pet.).

         Even prior to the Supreme Court’s expansion in In re Prudential Ins. Co. of

Am., supra, mandamus is appropriate if the error could not be properly presented

in an appeal. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992). In the case at

bar, General Contractor would have difficulty demonstrating harm flowing from

the severance. First, how would this Court receive the record of the Brooks

County proceedings? Second, the severance would likely skew the proceedings,

potentially affect the outcome of the litigation, and compromise the presentation of

General Contractor’s defense in ways unlikely to be apparent in the appellate

record. For example, in the Henderson County proceeding, Subcontractor is likely

to complain that School District’s plans and specifications are improper, and


                                          23
therefore it is entitled to additional compensation. Conversely, in the Brooks

County lawsuit, School District will claim that the plans and specifications are

proper, and therefore Subcontractor is not entitled to any compensation. The

skewing of proceedings cannot be properly reflecting in appeal after a trial,

warranting mandamus relief. In re Brokers Logistics, Ltd., 320 S.W.3d 402, 409

(Tex. App.--El Paso 2010, no pet.). As a result, mandamus relief is appropriate

herein. See, e.g., In re Greyhound Lines, Inc., 2014 WL 1022329 at 4 (Tex. App.--

Dallas 2014, no pet.)

      The clear need for mandamus relief is further show by the trial court’s

conduct. As initially pointed out, General Contractor filed a motion for leave to

file third party petition, but the trial court claimed no such motion was filed. But

more importantly, at the initial hearing on the motion to transfer venue, the trial

court specifically stated that if General Contractor joined School District as a party,

the entire case would be transferred to Brooks County. Exh. E, p. 15. When

confronted with such ruling, the trial court blithely ignored such ruling. Exh. J-1.

A trial court is not free to blithely ignore its prior order. Mercedes-Benz Credit

Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).

                    CONCLUSION AND PRAYER

      Brooks County is clearly the appropriate forum for this lawsuit.             The

building in question was built there, and any defective performance or extra work

                                          24
occurred there. Likewise, the contracts in this matter required lawsuits to be

adjudicated in Brooks County, and the School District is statutory entitled to venue

in Brooks County. In light of both the applicable facts and law, along with the

prior history of this litigation, the trial court’s orders herein compound the previous

questionable rulings, ruling designed to maintain venue in an improper forum.

      WHEREFORE,          PREMISES       CONSIDERED,         RIGNEY        CONSTR-

UCTION & DEVELOPMENT, LLC, Relator in the above styled and numbered

cause, respectfully prays that its Petition for Writ of Mandamus be GRANTED,

that the order of severance be set aside, that this Court require this entire matter be

transferred to Brooks County, and for all other and further relief, either at law or in

equity, to which Relator shows itself justly entitled.

                                        Respectfully submitted,

                                        ___/s/ John A. Rigney__________________
                                        John A. Rigney, State Bar Number: 24089356
                                        4712 N. McColl Road, McAllen, Texas 78504
                                        Tel. (956) 638-6421; Fax. (956) 618-2218
                                        Email: RigneyLaw@aol.com

                              CERTIFICATION
      This is to certify that I have reviewed the above and foregoing petition.
Each and every factual statement contained therein is true and correct. The factual
statements are supported by the competent evidence, which are included in the
exhibits attached to this petition. Furthermore, I hereby certify that all exhibits
attached hereto are true and correct copies of the original.

                                         ___/s/ John A. Rigney_________________

                                          25
                                      John A. Rigney, Attorney at Law

                CERTIFICATE OF NO EVIDENCE
       This is to certify that no evidence was presented in support of the motion to
strike and motion for severance, which form the basis of this mandamus
proceeding.

                                       ___/s/ John A. Rigney_________________
                                      John A. Rigney, Attorney at Law

                CERTIFICATE OF COMPLIANCE
       This is to certify that the above and foregoing document was generated
utilizing Word 2007, with 14 point font (12 point for footnotes) and contains 5779
words.
                                      ___/s/ John A. Rigney__________________
                                      John A. Rigney, Attorney at Law

                    CERTIFICATE OF SERVICE
       I hereby certify that a copy of the foregoing has been served electronically
and/or by facsimile transmission on the following, in accordance with TRAP 6.3,
to-wit:

Carlos A. Balido, 10440 North Central Expressway
Meadow Park Tower, Suite 1500 Dallas, TX. 75231
Ph. (214) 749-4805 Fax (214) 760-1670 Email: carlos.balido@wbclawfirm.com

Jaime Garcia, 216 W. Village Blvd., Ste. 202
Laredo, TX 78041
Ph. (956) 717-1300 Fax (956) 717-0539 Email: jgarcia@jca-law.com

Judge Dan Moore, 100 E. Tyler
Suite 207
Athens, TX 75751

                                      ___/s/ John A. Rigney__________________
                                      John A. Rigney, Attorney at Law

                                        26
