in Re Pentex Foundation and Joshua Unger, Trustee of GBU Friends and Associates, Trust
02-15-00069-CV
| Tex. App. | Mar 2, 2015Background
- Pentex sued in Fannin County to enforce a written contract that (1) contains an explicit clause making the contract "performable only in Fannin County, Texas," and (2) provides a $5,000,000 liquidated-damages/buyout term (thus constituting a “major transaction” under Tex. Civ. Prac. & Rem. Code § 15.020).
- Gibbs and Walton moved to transfer venue to Tarrant County under the permissive-convenience statute (§ 15.002); the trial court initially granted the transfer.
- Pentex filed a timely motion to reconsider; on rehearing the trial judge reversed and denied the transfer, then set trial for June 1, 2015.
- Gibbs and Walton petitioned the Texarkana Court of Appeals for mandamus, arguing the trial court lacked authority to reconsider its transfer order; Pentex cross‑petitioned seeking mandamus enforcement of mandatory venue under § 15.020.
- The Texarkana court held the trial court lacked jurisdiction to reconsider the transfer and denied Pentex’s cross‑petition as belonging to the intermediate appellate court for the transferee county (Second Court of Appeals for Tarrant County); Pentex then filed this petition in the Second Court of Appeals seeking mandamus to enforce the contractual mandatory-venue provision.
Issues
| Issue | Plaintiff's Argument (Pentex) | Defendant's Argument (Gibbs/Walton) | Held/Outcome |
|---|---|---|---|
| Whether § 15.020 mandates venue in Fannin County where the contract (a “major transaction”) specifies Fannin as the exclusive forum | Contract is a major transaction (≥ $1M) and contains an express clause making disputes "performable only in Fannin County," so venue is mandatory and trial court must retain the case | Venue transfer permissible for convenience under § 15.002; initial transfer order was proper | Trial court initially transferred, later reconsidered and denied transfer; Texarkana held trial court lacked authority to reconsider and denied Pentex’s cross‑petition as for the transferee court to decide; Pentex seeks mandamus in the Second Court to enforce § 15.020 |
| Whether mandamus is the proper vehicle to enforce a contractual mandatory-venue provision | Mandamus is proper under § 15.0642 and governing precedent when mandatory venue is denied | Mandamus relief not appropriate where interlocutory procedural defects exist; venue questions belong in transferee court | Precedent recognizes mandamus to enforce mandatory venue; § 15.0642 permits mandamus before trial; Pentex invoked mandamus in Second Court |
| Whether pleading/appendix established prima facie proof of mandatory venue | Pentex attached the contract, pleaded amount of damages and exclusive Fannin venue; these facts were undisputed and thus taken as true | Gibbs/Walton did not specifically deny venue facts, instead argued inconvenience | Under Tex. R. Civ. P. 87 and cases, properly pleaded and undisputed venue facts constitute prima facie proof of mandatory venue |
| Priority of § 15.020 over permissive venue statutes | § 15.020(c) controls and displaces conflicting permissive venue statutes when a major transaction applies | Permissive-convenience transfer rules still relevant if mandatory venue not established | When § 15.020 applies (major transaction + written exclusive forum), it trumps permissive venue; transfer under § 15.002 is improper where § 15.020 mandates venue |
Key Cases Cited
- In re Fisher, 433 S.W.3d 523 (Tex. 2014) (mandamus and § 15.0642 authority to enforce mandatory venue)
- In re Cont'l Airlines, Inc., 988 S.W.2d 733 (Tex. 1998) (mandamus is the remedy for enforcing mandatory venue provisions)
- In re Applied Chem. Magnesias Corp., 206 S.W.3d 114 (Tex. 2006) (standard for mandamus to enforce mandatory-venue statutes)
- In re David Lopez, Sr., 372 S.W.3d 174 (Tex. 2012) (relief under mandatory-venue statutes requires showing trial court clearly abused discretion; no need to show lack of appellate remedy)
- In re AutoNation, 228 S.W.3d 663 (Tex. 2006) (forum-selection clauses should be enforced absent strong reasons to set them aside)
- Flores v. Millennium Interests, Ltd., 185 S.W.3d 427 (Tex. 2005) (principles governing liquidated-damages clauses)
- Valence v. Dorsett Operating Co., 164 S.W.3d 656 (Tex. 2005) (liquidated-damages and contract-damage principles)