in Re: Philadelphia Indemnity Insurance Company
12-17-00117-CV
| Tex. App. | Jul 29, 2017Background
- Philadelphia Indemnity Insurance Company (Relator) filed a reply opposing Real Party/Claimant’s motion for rehearing regarding a mandamus proceeding about venue.
- The trial court transferred venue away from Henderson County; this Court ordered the Claimant to respond to the Surety’s mandamus petition.
- Claimant took a nonsuit in the trial court after this Court’s order and did not adequately explain the timing or notify the Court/Surety.
- Relator argues Claimant had actual notice of the proceeding (proof of service received) but failed to act and improperly blames email service and Surety.
- Relator contends the trial court’s venue order has preclusive effect (res judicata) and became final after 30 days, barring relief; Claimant also failed to present a demand to the trial court before seeking mandamus.
- Relator notes Brooks County I.S.D. has since been joined, which would make Brooks County the mandatory venue, and argues this Court lacks jurisdiction to disturb an otherwise valid order.
Issues
| Issue | Claimant's Argument | Relator's Argument | Held |
|---|---|---|---|
| Whether Claimant’s nonsuit and failure to respond moots the mandamus | Nonsuit renders the matter moot and venue can be reasserted if refiling | Nonsuit timing and silence show Claimant had notice; nonsuit does not negate preclusive effect | Court denied rehearing — relator argues matter not moot because claims remain and res judicata applies |
| Preclusive effect of trial court’s venue transfer | Venue can be asserted anew on refiling in Henderson County | Trial court’s transfer has preclusive effect; erroneous orders still bind; final after 30 days | Transfer viewed as preclusive/final; relator asserts this bars relief |
| Requirement to present demand to trial court before mandamus | Implicitly contends mandamus appropriate without prior demand due to circumstances | Mandamus relief barred unless party first sought relief from trial court | Relator contends Claimant failed to present demand and thus cannot obtain mandamus |
| Impact of joinder of Brooks County I.S.D. on venue jurisdiction | Claimant’s response unclear; implies venue issues remain contestable | Joinder makes Brooks County mandatory venue; Court lacks jurisdiction to correct an otherwise valid order | Relator asserts joinder shifts mandatory venue and undermines Claimant’s rehearing request |
Key Cases Cited
- Brown v. State, 911 S.W.2d 744 (Tex. Cr. App. 1995) (circumstantial evidence can be as probative as direct evidence)
- Peck v. Ray, 601 S.W.2d 165 (Tex. Civ. App.—Corpus Christi 1980, writ ref'd n.r.e.) (a party’s duty to be informed requires taking action when aware of proceedings)
- In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (trial court venue determinations have preclusive effect)
- In re Southwestern Bell Telephone Co., 35 S.W.3d 602 (Tex. 2000) (orders transferring venue become final after thirty days)
- Schein v. American Restaurant Group, Inc., 852 S.W.2d 496 (Tex. 1993) (erroneous judgments do not lose preclusive effect)
- Segrest v. Segrest, 649 S.W.2d 610 (Tex. 1983) (a judgment’s correctness does not affect res judicata application)
- Miller v. State and County Mut. Fire Ins. Co., 1 S.W.3d 709 (Tex. App.—Fort Worth 1999, pet. denied) (venue determinations preclusive effect)
- In re Fain, 514 S.W.3d 917 (Tex. App.—Fort Worth 2017, no pet.) (mandamus prerequisites include presenting demand to trial court)
- Newton v. Calhoun, 203 S.W.3d 382 (Tex. App.—El Paso 2006, no pet.) (same: mandamus relief requires prior trial-court demand)
- Estate of Clifton v. Southern Pac. Transp. Co., 709 S.W.2d 636 (Tex. 1986) (appellate courts lack jurisdiction to correct errorless orders)
- Davis v. Bryan & Bryan, Inc., 730 S.W.2d 643 (Tex. 1987) (similar principle on appellate jurisdiction)