                                   In The
                             Court of Appeals
               Sixth Appellate District of Texas at Texarkana


                                      No. 06-18-00115-CV




                      IN RE THE GOOD SHEPHERD HOSPITAL, INC.




                                Original Mandamus Proceeding




                         Before Morriss, C.J., Burgess and Carter,* JJ.
                                 Opinion by Justice Carter

__________________________________
*Jack Carter, Justice, Retired, Sitting by Assignment
                                                  OPINION
            Rule 87 of the Texas Rules of Civil Procedure requires that the trial court determine a

venue issue “in a reasonable time prior to commencement of the trial on the merits.” TEX. R. CIV.

P. 87(1). Does the trial court clearly abuse its discretion by setting a hearing on a motion for partial

summary judgment immediately following a hearing and ruling on a motion to transfer venue?

For the reasons below, we conclude that the trial court abused its discretion. We conditionally

grant mandamus relief.

I.          Background

            On November 13, 2002, Good Shepherd Hospital, Inc. (Good Shepherd), and Select

Specialty Hospital-Longview, Inc. (Select), entered into a lease agreement wherein Good

Shepherd agreed to lease to Select approximately 20,000 square feet of hospital space for the

operation of a long-term acute care hospital. 1 In addition, the parties entered into ancillary and

support services agreements. On June 25, 2018, Select filed an original petition, application for

temporary restraining order, and request for temporary and permanent injunctions maintaining that

Good Shepherd had breached the lease and ancillary agreements with Select by failing to provide

the agreed-upon services. 2 On the same day, the trial court issued an ex parte temporary restraining


1
    The hospital is located in Longview, Texas, which is situated in Gregg County.
2
 In its original petition, Select asked the trial court to, among other things, restrain Good Shepherd from (1) refusing
to provide Select and its patients services that Good Shepherd had been providing pursuant to the parties’ agreement,
(2) terminating the parties’ lease agreement, (3) interfering with Select’s rights to quiet possession of the leased
premises and the common area of the hospital, (4) materially changing the referral process and inhibiting the proper
referral of patients to Select, and (5) restricting Select’s access to patient information for the patients referred to Select.
In addition to the injunctive relief, Select also sought a declaratory judgment and monetary damages for breach of
contract. Specifically, Select maintained that Good Shepherd had entered into a valid and enforceable lease and
ancillary agreements and that it had materially breached those agreements.
                                                              2
order, which prevented Good Shepherd from, among other things, “refusing to provide Select and

its patients any and all services that [Good Shepherd] currently provide[d] to [Select] and its

patients pursuant to the [parties’ agreements]. . . .” 3

            In response, Good Shepherd filed a motion to transfer venue, 4 arguing that, pursuant to

Section 15.011 of the Texas Civil Practice and Remedies Code, venue was mandatory in Gregg

County. 5 On July 2, 2018, after conducting a hearing, the trial court entered a temporary injunction

against Good Shepherd. The temporary injunction contained the same or similar provisions as

those set forth in the ex parte temporary restraining order.

            Following an interlocutory appeal of the original temporary injunction, the entry of a

second temporary injunction, and the filing of an amended petition by Select, Good Shepherd filed

an amended motion to transfer venue on November 27, 2018. On the same day, Good Shepherd




3
    The hearing on Select’s request for a temporary injunction was set for July 2, 2018.
4
 After filing its motion to transfer venue, Good Shepherd filed a motion to continue the temporary injunction hearing,
which had been set for one week after Select initiated its lawsuit. In its motion for continuance, Good Shepherd
explained that it had not had adequate time to prepare for the July 2 temporary injunction hearing. Citing Rule 86 of
the Texas Rules of Civil Procedure, Good Shepherd also maintained that an extension of the hearing date would allow
the trial court time to consider its motion to transfer venue prior to issuing a substantive ruling on Select’s request for
a temporary injunction. See TEX. R. CIV. P. 86. The trial court denied Good Shepherd’s motion and proceeded with
the hearing on Select’s request for a temporary injunction.
5
    Section 15.011 states,

            Actions for recovery of real property or an estate or interest in real property, for partition of real
            property, to remove encumbrances from the title to real property, for recovery of damages to real
            property, or to quiet title to real property shall be brought in the county in which all or a part of the
            property is located.

TEX. CIV. PRAC. & REM. CODE ANN. § 15.011 (West 2017).

                                                               3
formally noticed Select that a hearing on its amended motion had been scheduled for January 28,

2019.

        On November 28, 2018, Select filed a motion for partial summary judgment, asking the

trial court to find, among other things, that Good Shepherd had breached the parties’ agreements.

Select also noticed Good Shepherd that the hearing on its motion for partial summary judgment

was scheduled for December 20, 2018. On December 11, 2018, Good Shepherd filed a motion for

continuance of the hearing on Select’s motion for partial summary judgment, arguing that

“blackletter Texas law precludes the Court from ruling upon [Select]’s MSJ before ruling upon

[Good Shepherd]’s previously filed Transfer Motion, which [was] set for hearing on January 28,

2019[,]” at 2:30 p.m. Good Shepherd asked the trial court to reschedule the hearing on Select’s

motion for partial summary judgment to “a reasonable time,” which Good Shepherd interpreted as

being thirty days after the court signed its written order on Good Shepherd’s amended motion to

transfer venue. On December 14, 2018, the trial court entered an order granting Good Shepherd’s

motion for continuance, continuing the hearing on Select’s motion for partial summary judgment

to “January 28, 2019[,] at 2:30 p.m. after (i) the Court ha[d] held a hearing on and signed an order

deciding [Good Shepherd]’s Motion to Transfer venue, and (ii) [Select] ha[d] made its witnesses

available for deposition.”

II.     Discussion

        In its petition for writ of mandamus, Good Shepherd contends that the trial court abused

its discretion when it set a hearing on Select’s motion for partial summary judgment immediately

after hearing and ruling on Good Shepherd’s amended motion to transfer venue. Good Shepherd
                                                 4
asks this Court to (1) grant its petition, (2) order the trial court to cancel its hearing on Select’s

motion for partial summary judgment, and (3) prohibit the trial court from hearing any summary

judgment motions or otherwise addressing the merits of the case until thirty days after the court

issues its written order on Good Shepherd’s motion to transfer venue.

       A.      Relevant Law and Standard of Review

       Mandamus issues only when the mandamus record establishes (1) a clear abuse of

discretion or violation of a duty imposed by law and (2) the absence of a clear and adequate remedy

at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994) (orig. proceeding); Walker v. Packer, 827

S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Mandamus is an extraordinary remedy that will

issue only to correct a clear abuse of discretion, or in the absence of another statutory remedy,

when the trial court fails to observe a mandatory statutory provision conferring a right or

forbidding a particular action.     Arbor v. Black, 695 S.W.2d 564, 567 (Tex. 1985) (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, 827 S.W.2d at 839.

With respect to the resolution of factual issues or matters committed to the trial court’s discretion,

the reviewing court may not substitute its judgment for the trial court. Brady v. Fourteenth Court

of Appeals, 795 S.W.2d 712, 714 (Tex. 1990) (orig. proceeding). However, “[a] trial court has no

‘discretion’ in determining what the law is or applying the law to the facts.” Huie v. De Shazo,

922 S.W.2d 920, 927 (Tex. 1996) (orig. proceeding); see In re Jorden, 249 S.W.3d 416, 424 (Tex.

2008) (orig. proceeding). Therefore, an erroneous legal conclusion by the trial court constitutes
                                                  5
an abuse of discretion. Huie, 922 S.W.2d at 927–28. A clear failure by the trial court to apply the

law correctly is an abuse of discretion. Walker, 827 S.W.2d at 840.

       B.      Applicability of Rule 87(1) of the Texas Rules of Civil Procedure

       In support of its contention that the trial court abused its discretion when it set the hearing

on Select’s motion for partial summary judgment immediately after hearing and ruling on Good

Shepherd’s amended motion to transfer venue, Good Shepherd directs us to Rule 87(1) of the

Texas Rules of Civil Procedure. Rule 87(1) states, in part, “The determination of a motion to

transfer venue shall be made promptly by the court and such determination must be made in a

reasonable time prior to commencement of the trial on the merits.” TEX. R. CIV. P. 87(1). The

language of Rule 87(1) patently requires the trial court to issue a ruling on a motion to transfer

venue prior to proceeding on the merits of the case.

       In addition, Rule 84 of the Texas Rules of Civil Procedure states,

       The defendant in his answer may plead as many several matters, whether of law or
       fact, as he may think necessary for his defense, and which may be pertinent to the
       cause, and such matters shall be heard in such order as may be directed by the court,
       special appearance and motion to transfer venue, and the practice thereunder being
       excepted herefrom.

TEX. R. CIV. P. 84 (emphasis added). Clearly, the “intent of Rule 84 [is] to prevent . . . the trial

court proceeding on meritorious matters prior to its determination of whether venue was properly

before it.” Glover v. Moser, 930 S.W.2d 940, 944 (Tex. App.—Beaumont 1996, writ denied).

Moreover, Rule 86(1), which is the rule governing motions to transfer venue, states that a party

waives any objection to improper venue if the objection is “not made by written motion filed prior

to or concurrently with any other plea, pleading or motion except a special appearance motion
                                                 6
provided for in Rule 120a.” TEX. R. CIV. P. 86(1). Thus, Rule 86(1) also demands due order of a

party’s pleadings in order to prevent the trial court from proceeding on “matters related to the

merits” before determining whether venue is proper. Glover, 930 S.W.2d at 941.

         In response to Good Shepherd’s petition, Select maintains that Rule 87(1) is inapplicable

because a hearing on a motion for partial summary judgment is not a trial on the merits, and thus,

Good Shepherd’s request for mandamus relief should be denied. Citing Mower v. Boyer, 811

S.W.2d 560, 562 (Tex. 1991), Select contends, “Rather, a motion for partial summary judgment,

if granted, only becomes final if it is severed, or the remaining issues in the case are disposed of

by a trial on the merits or additional summary judgment proceedings.” 6 According to Select, Rule

87(1) is not applicable due to the procedural posture of this case. We believe Select’s argument is

misplaced.

         Rule 87(1) speaks to the timely disposition of a motion to transfer venue in juxtaposition

to the commencement of a trial on the merits. Rather than considering whether the disposition of

a motion for partial summary judgment is an appealable final judgment on the merits of a case, we

must determine whether a hearing on a motion for partial summary judgment results in “the

commencement of trial on the merits.” 7 Under the circumstances of this case, we believe it does.



6
  Unlike the issue before this Court, Mower addressed the preclusive effect of a district court’s interlocutory partial
summary judgment. In that case, the Texas Supreme Court held that a partial summary judgment was not entitled to
collateral effect. Mower, 811 S.W.2d at 562.
7
 In support of its position that a hearing on a partial summary judgment is a trial on the merits of the case, Good
Shepherd directs us to Fort Brown Villas III Condominium Association, Inc. v. Gillenwater, 285 S.W.3d 879, 882
(Tex. 2009) (holding that a summary judgment motion hearing is a “trial” under TEX. R. CIV. P. 193.6’s automatic
exclusion for failing to timely disclose evidence); Goswami v. Metropolitan Savings & Loan, 751 S.W.2d 487 (Tex.
1988) (holding that a summary judgment hearing is a “trial” under TEX. R. CIV. P. 63’s deadline to amend a petition);
                                                          7
             When determining whether “commencement of the trial on the merits,” as it is used in

Rule 87(1), includes a hearing on Select’s motion for partial summary judgment, we must give

effect to the plain meaning of the text unless it is ambiguous or leads to an absurd result. Molinet

v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). In determining the plain meaning of the Rule, we

may consult dictionary definitions and consider words in their usual context. 8 TEX. GOV’T CODE

ANN. § 311.011(a) (West 2013). Merriam-Webster Dictionary defines “commence” as “to have

or make a beginning: START.” 9 Commence, MERRIAM-WEBSTER DICTIONARY (11th ed. 2006).

In addition, Black’s Law Dictionary defines “merits” as “[t]he elements or grounds of a claim or

defense; the substantive considerations to be taken into account in deciding a case, as opposed to

extraneous or technical points, esp. of procedure[.]” Merits, BLACK’S LAW DICTIONARY (10th ed.

2014).

            In its amended petition, Select alleges that Good Shepherd and Select entered into a valid,

enforceable lease, along with ancillary agreements.                      It alleged further that Good Shepherd

materially breached the agreements and threatened to breach them in the future. In its motion for

partial summary judgment, Select stated, “Whether [GOOD SHEPHERD] breached the contract




Lee-Hickman’s Investments v. Alpha Invesco Corp., 139 S.W.3d 698, 701 (Tex. App.—Corpus Christi 2004, no pet.)
(per curiam) (holding summary judgment hearing is a “trial” within the meaning of Section 51.014(b) of the Texas
Civil Practice and Remedies Code); and ASI Aviation, LLC v. Arnold & Itkin, LLP, Nos. 13-16-00612-CV & 13-17-
00122-CV, 2018 WL 6217699, at *3 (Tex. App.—Corpus Christi 2018, no pet.) (mem. op.). However, because these
cases address summary judgment motions that dispose of all of the issues in the case, we find them to be
distinguishable from the facts of this case.
8
 Section 311.011(a) states, “Words and phrases shall be read in context and construed according to the rules of
grammar and common usage.” TEX. GOV’T CODE ANN. § 311.011(a) (West 2013).
9
    The term also means “to take the first step in a course, process, or operation.”
                                                              8
is a question of law for the court, not a fact question for the jury.” “Select is entitled to summary

judgment, as a matter of law, on its breach of contract claims because no genuine issue of material

fact exists that [GOOD SHEPHERD] breached the [agreements].” Select asked the trial court to

grant partial summary judgment on this basis and to find, as a matter of law, that Good Shepherd

breached and anticipatorily breached the agreements.

       In order for the trial court to determine whether Good Shepherd breached the parties’

agreements, it is required to reach one of the substantive claims contained in Select’s amended

petition. This is so regardless of the fact that the trial court’s determination would not be

appealable until the remainder of Select’s claims have been addressed. We therefore conclude

that, when a trial court “begins” or “starts” the process of ruling on substantive matters in a case,

such as is required in deciding a dispositive issue in a partial summary judgment motion, it has

commenced with the trial on the merits for purposes of Rule 87(1) of the Texas Rules of Civil

Procedure.

       C.      Availability of a Clear and Adequate Remedy at Law

       Select also contends that mandamus should not issue in this case because Good Shepherd

has an adequate remedy at law. It is well settled that “[m]andamus will not issue where there is ‘a

clear and adequate remedy at law[.]’” See Walker, 827 S.W.2d at 840 (quoting State v. Walker,

679 S.W.2d 484, 485 (Tex. 1984) (orig. proceeding)). The Texas Supreme Court has adopted a

balancing test to determine whether a party has an adequate remedy by appeal. See In re Prudential

Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding); see In re AIU Ins. Co., 148

S.W.3d 109, 115 (Tex. 2004) (orig. proceeding). Under this balancing test, a remedy available on
                                                 9
direct appeal is adequate when the detriments of mandamus review outweigh the benefits.

Prudential Ins. Co., 148 S.W.3d at 136. If the benefits of mandamus review outweigh the

detriments, the appellate court must determine whether the remedy by appeal is adequate. Id. The

Texas Supreme Court reasoned:

            The operative word, “adequate,” has no comprehensive definition; it is simply a
            proxy for the careful balance of jurisprudential considerations that determine when
            appellate courts will use original mandamus proceedings to review the actions of
            lower courts. . . . An appellate remedy is “adequate” when any benefits to
            mandamus review are outweighed by the detriments.
Id. The Texas Supreme Court stated, “Whether an appellate remedy is ‘adequate’ so as to preclude

mandamus review depends heavily on the circumstances and is better guided by general principles

than by simple rules.” Id. at 137. The Texas Supreme Court, however, still emphasized that

mandamus review should be limited to “exceptional cases” and only to prevent impairment of

“important substantive and procedural rights.” Id. at 136.

             In support of its contention that Good Shepherd has an adequate remedy at law, Select

directs us to Section 15.0642 of the Texas Civil Practice and Remedies Code, stating that Good

Shepherd would have a right to seek immediate review of a denial of its claim for mandatory

venue. 10 Good Shepherd maintains that “the court’s scheduling of the hearings prevents [it] from


10
     Section 15.0642 states,

            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 2017).
                                                               10
seeking mandamus review of an adverse venue ruling and a stay before the trial court adjudicates

the merits of the case.” We agree with Good Shepherd. The very purpose of the venue statutes is

to give a defendant the right to defend the merits of the case in the proper county. Wagner v.

Kroger, 663 S.W.2d 43 (Tex. App.—Houston [14th Dist.] 1983, writ dism’d). Accordingly, Good

Shepherd is entitled to have the venue question resolved before it is required to try the case on any

of the merits. To hold otherwise would virtually eliminate the need for those statutes.

       Notably, under Rule 84 of the Texas Rules of Civil Procedure, the trial court has broad

discretion to determine the order of proceedings, but that discretion is limited when deciding

motions to transfer venue. See Glover, 930 S.W.3d at 941. In this case, Good Shepherd followed

all of the necessary requirements in perfecting its claim of improper venue. Once Good Shepherd

filed its amended motion to transfer venue and requested a hearing, the trial court was required to

rule on that motion within “a reasonable time prior to commencement of the trial on the merits.”

See TEX. R. CIV. P. 87(1). We do not consider the trial court’s determination of venue made

immediately prior to conducting a hearing on the merits of the case as constituting a “reasonable

time.” Consequently, we find that the trial court abused its discretion when it scheduled a hearing

on Select’s motion for partial summary judgment immediately after hearing and ruling on Good

Shepherd’s amended motion to transfer venue. Thus, mandamus is an appropriate avenue in which

to correct the trial court’s failure to observe Rule 87(1).




                                                  11
III.   Conclusion

       Accordingly, we conditionally grant Good Shepherd’s petition for writ of mandamus and

direct the trial court to set Good Shepherd’s amended motion to transfer venue for a hearing and

rule on its motion within a reasonable time prior to hearing Select’s motion for partial summary

judgment. We are confident the trial court will comply with this opinion, and the writ will issue

only in the event it does not. See TEX. R. APP. P. 52.8.




                                              Jack Carter
                                              Justice
Date Submitted:        March 5, 2019
Date Decided:          March 6, 2019




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