in Re: Philadelphia Indemnity Insurance Company
12-17-00117-CV
| Tex. App. | Jul 31, 2017Background
- Red Dot Buildings subcontracted with Rigney Construction for a school project in Brooks County and obtained a payment bond from Philadelphia Indemnity under Tex. Gov’t Code ch. 2253.
- Red Dot sued Rigney for breach of contract in Henderson County; Rigney moved to transfer venue to Hidalgo County (denied by trial court).
- Red Dot later added Philadelphia in a first amended petition under chapter 2253; Philadelphia moved to transfer venue to Brooks County under section 2253.077.
- The trial court denied Philadelphia’s motion to transfer on the ground that venue had already been determined before Philadelphia was joined.
- Philadelphia filed an original mandamus seeking an order directing the trial court to transfer venue; after the mandamus petition was filed, Red Dot nonsuited its claims against Philadelphia.
- The Court of Appeals dismissed the mandamus as moot and ordered the trial court to vacate its May 30, 2017 transfer order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Philadelphia’s mandamus is moot after nonsuit | Red Dot: nonsuit renders case moot; court should dismiss | Philadelphia: controversy survives because claims can be refiled, public importance, and mandatory venue remains due to new party | Court: Proceeding is moot after nonsuit; no mootness exceptions apply; mandamus dismissed |
| Whether the "capable of repetition yet evading review" exception saves the case | Philadelphia: likely to face same action again so exception applies | Red Dot: record does not show the action was too short to litigate or that repeat injury is likely | Court: Exception does not apply—issue can be, and has been, reviewed in other cases |
| Whether collateral-consequences exception applies | Philadelphia: trial court’s order could have res judicata effect and practical consequences | Red Dot: Philadelphia is a business and lacks the stigmatizing, continuing disabilities that justify the exception | Court: Collateral-consequences exception does not apply; alleged consequences are not the narrow, lasting harms needed |
| Whether appellate relief would be useful or unavailing | Philadelphia: relief would set venue rule and prevent future erroneous denials | Red Dot: because nonsuit removed any live controversy, relief would be unavailing | Court: Under Dow Chemical, mandamus will not issue if it would be useless; thus dismissed |
Key Cases Cited
- Heckman v. Williamson Cnty., 369 S.W.3d 137 (Tex. 2012) (mootness and obligation to consider intervening events)
- Williams v. Lara, 52 S.W.3d 171 (Tex. 2001) (requirement of a justiciable controversy at all stages)
- Zipp v. Wuemling, 218 S.W.3d 71 (Tex. 2007) (appeal is moot when judgment cannot affect parties’ rights)
- Gen. Land Office of the State of Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569 (Tex. 1990) (exceptions to mootness doctrine)
- Dow Chem. Co. v. Garcia, 909 S.W.2d 503 (Tex. 1995) (mandamus will not issue if it would be useless or unavailing)