                                       NO. 12-18-00100-CV
                              IN THE COURT OF APPEALS
                 TWELFTH COURT OF APPEALS DISTRICT
                                          TYLER, TEXAS

IN RE:                                                 §
METROPOLITAN PROPERTY
AND CASUALTY INSURANCE                                 §       ORIGINAL PROCEEDING
COMPANY, ET AL,
RELATORS                                               §

                                       MEMORANDUM OPINION
        Metropolitan Property and Casualty Insurance Company, Metropolitan Casualty Insurance
Company, Metropolitan Direct Property and Casualty Insurance Company, Metropolitan General
Insurance Company, Metropolitan Lloyds Insurance Company of Texas, and Economy Premier
Insurance Company (collectively “Metropolitan”) seek mandamus relief from the trial court’s
orders denying its motion to transfer venue and motion to sever.1 We deny the writ.


                                               BACKGROUND
        In 2013, Patti Wan was involved in an automobile collision with Fidel Campos’s minor
son, an uninsured motorist. Wan was covered by an insurance policy issued by Metropolitan that
included uninsured motorist (UM) coverage. Metropolitan paid Wan’s property damage and
bodily injury claims, less her $250 deductible on the property claim. Metropolitan obtained
partial subrogation from Campos and entered into a repayment agreement with him. Metropolitan
reimbursed Wan’s deductible in April 2017.
        Subsequent to the collision, Wan sued Campos for personal injuries allegedly sustained in
the collision.     In October 2017, she amended her petition to include allegations against
Metropolitan for breach of contract, conversion, breach of fiduciary duty, civil conspiracy, and

        1
          The Respondent is the Honorable J. Clay Gossett, Judge of the 4th Judicial District Court, Rusk County,
Texas. The underlying proceeding is trial court cause number 2013-395, styled Patti Wan, Individually & On Behalf
of all Others Similarly Situated v. Fidel Campos; Metropolitan Property & Casualty Ins. Co.; Metropolitan
Casualty Ins. Co.; Metropolitan Direct Property & Casualty Co.; Metropolitan General Ins. Co.; Economy Fire &
Casualty Co.; Economy Preferred Ins. Co.; Metropolitan Lloyds Ins. Co. of Texas; Economy Premier Assurance
Co.; and Liberty County Mutual Ins. Co.
declaratory judgment. She alleged that Metropolitan failed to timely reimburse her deductible,
and she sought certification of a class. Metropolitan moved to transfer venue to Dallas County
and sever the claims against it from the claims against Campos. Following a hearing, the trial
court denied both motions. This original proceeding followed.


                                   AVAILABILITY OF MANDAMUS
       Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619,
623 (Tex. 2007) (orig. proceeding).      Mandamus will issue only to correct a clear abuse of
discretion for which the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of
Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). A trial court has no discretion in
determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833,
840 (Tex. 1992) (orig. proceeding). A trial court abuses its discretion by failing to analyze or
apply the law correctly.     Id.   As the party seeking relief, the relator bears the burden of
demonstrating entitlement to mandamus relief. Id. at 837; In re Fitzgerald, 429 S.W.3d 886, 891
(Tex. App.—Tyler 2014, orig. proceeding.).
       An appellate remedy is adequate when any benefits to mandamus review are outweighed
by the detriments. In re Prudential, 148 S.W.3d at 136. When the benefits outweigh the
detriments, appellate courts must consider whether the appellate remedy is adequate. Id. This
determination is not “abstract or formulaic,” but rather is a practical and prudential determination.
Id. at 136. Flexibility is the principal virtue of mandamus relief and rigid rules are “necessarily
inconsistent” with that flexibility. Id. Thus, the supreme court has held that “an appellate remedy
is not inadequate merely because it may involve more expense or delay” than a writ of mandamus,
however, the word “merely” must be carefully considered. Id. Appeal is not an adequate remedy
when the denial of mandamus relief would result in an “irreversible waste of judicial and public
resources.” Id. at 137. The decision whether there is an adequate remedy on appeal “depends
heavily on the circumstances presented.” Id. The decision is not confined to the private concerns
of the parties but can extend to the impact on the legal system. Id.


                                            SEVERANCE
       In its first issue, Metropolitan contends the trial court abused its discretion when it denied
the motion to sever Wan’s claims against it from her claims against Campos. However, Wan filed

                                                 2
a motion to lift the stay imposed by this Court, on grounds that she no longer desired to contest
the severance.2 In her response to Metropolitan’s petition, Wan withdrew her opposition to the
motion to sever and agreed to sever her claims against Metropolitan from her claims against
Campos.
        When, as in this case, a controversy no longer exists between the parties, the case becomes
moot. Reule v. RLZ Inv., 411 S.W.3d 31, 32 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
When a judgment “cannot have a practical effect on an existing controversy, the case is moot and
any opinion issued on the merits in the appeal would constitute an impermissible advisory
opinion.” Id. An opinion is advisory when it neither constitutes specific relief to a litigant nor
affects legal relations. See Houston Chronicle Publ’g Co. v. Thomas, 196 S.W.3d 396, 401 (Tex.
App.—Houston [1st Dist.] 2006, no pet.).
        Accordingly, because Wan has expressly represented to this Court that she no longer
contests Metropolitan’s entitlement to a severance, we conclude that this issue is now moot. See
Reule, 411 S.W.3d at 32. Thus, we need not address it.3 See TEX. R. APP. P. 47.1.


                                         MOTION TO TRANSFER VENUE
        In its second issue, Metropolitan argues that the trial court abused its discretion in denying
the motion to transfer venue to Dallas County. Metropolitan urges that there is no basis for venue
in Rusk County once the claims against it are severed.
        A party may appeal a venue ruling following a trial on the merits. See TEX. CIV. PRAC. &
REM. CODE ANN. § 15.064(b) (West 2017). If venue was improper, “it shall in no event be
harmless error and shall be reversible error.” Id. Consequently, venue determinations generally
are not reviewable by mandamus. In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999) (orig.
proceeding). A party seeking to enforce a mandatory venue provision is not required to prove the
lack of an adequate appellate remedy, but is required only to show that the trial court abused its
discretion. In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex. 1999). However, when the
relator does not seek enforcement of a mandatory venue statute, mandamus generally is not
available absent an abuse of discretion by the trial court and an inadequate appellate remedy. See
id.    But mandamus review of permissive venue determinations is appropriate only in
        2
            We denied Wan’s motion to lift the stay.
        3
           We trust that the parties will present Respondent with an order granting the severance and that Respondent
will sign such an order in light of Wan’s acquiescence to the severance.
                                                         3
“extraordinary circumstances.” In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig.
proceeding).
       Metropolitan alleges that venue in Rusk County is improper because its principal place of
business is in Dallas County. Therefore, according to Metropolitan, proper venue lies in Dallas
County and Wan’s claims against it should be transferred because they were improperly joined
with her claims against Campos and no venue facts support venue in Rusk County. Although
Metropolitan does not direct this Court to the specific venue provision on which it relies, we
assume Metropolitan relies on Section 15.032 of the Texas Civil Practice and Remedies Code,
which pertains to insurance. Under that section, a suit against an insurance company may be
brought in the county in which the company’s principal office is located, the county in which the
loss occurred, or the county in which the policyholder resided at the time the cause of action
accrued. TEX. CIV. PRAC. & REM. CODE ANN. § 15.032 (West 2017). The Texas Civil Practice
and Remedies Code expressly identifies Section 15.032 as a permissive venue statute, thus,
Metropolitan relies upon permissive venue, not mandatory venue. See id.; see also Chiriboga v.
State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673, 682 n.5 (Tex. App.—Austin 2003, no pet.)
(noting that Section 15.032 is a permissive venue scheme). As a result, absent “extraordinary
circumstances,” mandamus review is not appropriate in this case. See Masonite, 997 S.W.2d at
197; Team Rocket, 256 S.W.3d at 262.
       Assuming, without deciding, that this case satisfies the extraordinary circumstances
requirement, Metropolitan is entitled to a writ of mandamus only if it establishes both
prerequisites to mandamus review. See In re Fitzgerald, 429 S.W.3d at 891. And the mandamus
record does not demonstrate Metropolitan’s ability to establish an abuse of discretion.
       Rather, the record demonstrates that Wan brought forth sufficient venue facts to support
venue in Rusk County with respect to her lawsuit against Metropolitan.           Under the Texas
Insurance Code, an action against an insurer in relation to uninsured motorist coverage must be
brought in the county in which the accident occurred or the policyholder resided at the time of the
accident involving the uninsured motor vehicle. TEX. INS. CODE ANN. § 1952.110 (West 2009).
In this case, it is undisputed that the accident in question occurred in Rusk County and that Wan
resided in Rusk County at the time of the accident. In addition, Wan’s allegations against
Metropolitan concern the manner in which Metropolitan handled the reimbursement of Wan’s
uninsured motorist property claim. Unlike Section 15.032, Section 1952.110 is a mandatory

                                                 4
venue provision. See In re Reynolds, 369 S.W.3d 638, 648 (Tex. App.—Tyler 2012, orig.
proceeding). As a result, Wan’s lawsuit against Metropolitan necessarily relates to her uninsured
motorist coverage and venue is mandatory in Rusk County.                          See TEX. INS. CODE ANN.
§ 1952.110.4 Thus, even assuming the lack of an adequate remedy, Metropolitan cannot show that
Respondent abused his discretion by denying the motion to transfer venue. Consequently,
Metropolitan fails to meet its burden of establishing both prerequisites to mandamus relief
regarding Respondent’s venue determination. See Fitzgerald, 429 S.W.3d at 891.


                                                   DISPOSITION
         Having determined that Metropolitan’s first issue is moot and that it failed to establish an
entitlement to mandamus relief through its second issue, we deny the petition for writ of
mandamus. We lift our stay of proceedings ordered on April 25, 2018.


                                                                       JAMES T. WORTHEN
                                                                         Chief Justice


Opinion delivered May 31, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                    (PUBLISH)




         4
          In its reply brief, Metropolitan argues Section 1952.110 does not apply. We disagree for the reasons stated
in the opinion. However, even assuming Metropolitan is correct, venue is still proper in Rusk County under the
permissive venue statute because Wan resides in Rusk County. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.032.
                                                              5
                                 COURT OF APPEALS
     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                         JUDGMENT


                                            MAY 31, 2018

                                       NO. 12-18-00100-CV

                    METROPOLITAN PROPERTY AND CASUALTY
                         INSURANCE COMPANY, ET AL,
                                  Relators
                                    V.

                                   HON. J. CLAY GOSSETT,
                                          Respondent


                                      ORIGINAL PROCEEDING

               ON THIS DAY came to be heard the petition for writ of mandamus filed by
Metropolitan Property and Casualty Insurance Company, et al; who are the relators in Cause No.
2013-395, pending on the docket of the 4th Judicial District Court of Rusk County, Texas. Said
petition for writ of mandamus having been filed herein on April 24, 2018, and the same having
been duly considered, because it is the opinion of this Court that writ should not issue, it is
therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of
mandamus be, and the same is, hereby denied.
               It is further ORDERED that the Relators, METROPOLITAN PROPERTY
AND CASUALTY INSURANCE COMPANY, ET AL, pay all costs incurred by reason of this
proceeding.
                     James T. Worthen, Chief Justice.
                  Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.


                                                    6
