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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-17-00449-CV

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IN RE BESTEST, INC. AND JOSHUA ALAN JORDAN

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Original Proceeding

136th District Court of Jefferson County, Texas

Trial Cause No. D-199,594

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MEMORANDUM OPINION

In this original mandamus proceeding, we must decide whether the trial court 

clearly abused its discretion by refusing to rule on a defendant’s motion to transfer 

venue until after the parties complete discovery and mediation. We hold that the trial 

court clearly abused its discretion. Because no adequate appellate remedy exists, we 

conditionally grant mandamus relief. 

Seven-year-old Jarod Johnson Jr. died in a motor vehicle collision on June 17, 

2016. Holly D. Johnson filed a wrongful death suit in Jefferson County, Texas, 

against BesTest, Inc., Joshua Alan Jordan, Jarod Lawrence Johnson and Refractory 
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Construction Services Co., LLC. Her pleadings allege that at the time of the collision 

Jordan was in the scope of his employment with BesTest and Johnson was in the 

scope of his employment with Refractory. She alleged that venue is proper in 

Jefferson County pursuant to section 15.002(a)(3) of the Civil Practice and Remedies 

Code. See Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a)(3) (West 2017). 

On March 31, 2017, BesTest and Jordan jointly filed a motion to transfer 

venue. They alleged that the accident occurred in Liberty County, the plaintiff 

resides in Liberty County, Jordan resides in Hardin County, BesTest has its principal 

place of business in Lee County, and Refractory has its corporate office in Galveston 

County. They specifically denied the plaintiff’s contention that Refractory 

Construction Services Co., LLC does business in Jefferson County, Texas at their

corporate offices in Nederland, Texas. They requested that the case be transferred to 

Galveston County. On June 20, 2017, a deposition was taken of Thomas Vaughn, 

the Beaumont Area Manager for Refractory. 

According to the parties, the trial court initially heard the motions to transfer 

on July 10, 2017. On October 5, 2017, BesTest and Jordan filed a motion for a ruling 

on their motion to transfer venue. They alleged no further venue discovery was 

required and argued that Rule 87 of the Texas Rules of Civil Procedure requires that 

the trial court determine a motion to transfer venue promptly. Holly Johnson filed a 
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response and moved for entry of a docket control order. Citing excerpts from 

Vaughn’s deposition, she argued in part that Refractory has a principal office in 

Jefferson County. Additionally, she argued that additional time was required for 

discovery, including the deposition of the corporate representative/venue witness for 

BesTest, and to review venue relevant documentation. The proposed docket control 

order would require alternative dispute resolution to conclude by February 1, 2018, 

and set a trial date of April 9, 2018.

On October 17, 2017, the trial court conducted a hearing on the motion for a 

ruling. The trial court discussed setting the case for a trial in May 2018. Refractory’s 

counsel agreed to having the trial court keep Refractory’s motion to transfer under 

advisement, and requested time to submit additional briefing concerning transferring 

an entire case to a county of proper venue. The trial court suggested, “I’m willing to 

kind of, I guess, grant some leeway or latitude if everybody is on board with that and 

then see how the rest of the discovery unfolds.” The trial court suggested that after 

mediation they could ask for a status conference and obtain a ruling on the motion 

to transfer at that time. During the October hearing, counsel for BesTest and Jordan 

did not voice an objection to the trial court’s decision to delay ruling on their motion 

to transfer.
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In a hearing held November 13, 2017, BesTest and Jordan requested a ruling 

on their motion to transfer. Counsel explained that the trial court had not considered 

their motion for a ruling during the October 17 hearing. The trial court explained 

that he decided to postpone ruling on the motion to transfer because one of the 

defendants had waived venue and additional discovery would assist the court in 

determining whether to sever the case and send the defendants to different counties. 

Reasoning that the best time for mediation was after discovery was complete, the 

trial court ruled that it would not rule on the motion to transfer until after the parties 

submitted to mediation. Counsel for Refractory reminded the trial court that he had 

obtained permission to submit additional briefing and informed the trial court that 

he had filed the brief. 

In her response to the mandamus petition, Holly Johnson suggests a delay of 

four to six months is not unreasonable, that the trial court properly considered 

Relators’ silence and Refractory’s consent to delaying a ruling in the October 17 

hearing, and that delaying a ruling on the motion to transfer until after discovery and 

mediation is completed is neither arbitrary nor unreasonable because an immediate

ruling on the motion to transfer venue “had the potential to create a procedural and 

logistical nightmare caused by two different trials in two different counties regarding 

the conduct of the same parties in the same motor vehicle collision.” 
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A trial court commits a clear abuse of discretion when it refuses to rule on a 

pending motion within a reasonable amount of time. See In re Greenwell, 160 

S.W.3d 286, 288 (Tex. App.—Texarkana 2005, orig. proceeding) (mandamus relief 

conditionally granted when trial court refused to rule on a motion for partial 

summary judgment before trial). What is considered a reasonable amount of time is 

dependent upon the circumstances of each case. In re Shredder Co., L.L.C., 225 

S.W.3d 676, 679 (Tex. App.—El Paso 2006, orig. proceeding) (mandamus relief 

conditionally granted when motion to compel arbitration was left pending 

approximately six months). 

In considering what is considered a reasonable time under the circumstances 

of this case, it is significant that the matter under the trial court’s advisement is a 

motion to transfer venue. “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. Three 

months after the parties submitted their venue affidavits and after the trial court took 

the matter under advisement, BesTest and Jordan complained that the trial court had 

failed to determine their motion to transfer promptly. On November 13 when 

BesTest and Jordan requested a ruling, it appears the trial court had before it all the 

information required to consider the merits of the venue issue, which concerned 
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whether Refractory had a principal office in Jefferson County. The trial court’s 

stated reason to further delay its decision on the motion to transfer venue for several

additional months does not concern the merits of the venue issue. Rather, it is based 

solely on speculation that one of the defendants might settle or be non-suited from 

the case. Under the record before us, we conclude that the trial court abused its 

discretion by failing to determine venue promptly, as required by the applicable rule. 

See id.; see also Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). 

Citing In re Masonite Corporation, Holly Johnson argues that Relators have 

not established that they lack an adequate remedy by appeal because permissive 

venue determinations are properly reviewed on appeal following judgment on the 

merits. See In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999) (orig. 

proceeding). In Masonite Corporation, the appellate court acknowledged that 

permissive venue rulings are typically reviewed on appeal, but granted mandamus 

relief because the trial court’s erroneous venue ruling burdened other courts. Id. at

198-99. Nevertheless, mandamus may properly be employed to correct improper 

venue procedure. In re Shell Oil Co., 128 S.W.3d 694, 696 (Tex. 2004). The trial 

court’s refusal to rule promptly, as required by Rule 87, is an error of venue 

procedure. See Tex. R. Civ. P. 87.1. In evaluating benefits and detriments of 

mandamus, we consider whether mandamus will preserve important substantive and 
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procedural rights from impairment or loss. In re Team Rocket, L.P., 256 S.W.3d 257, 

262 (Tex. 2008). 

Accordingly, we conditionally grant the writ, and direct the trial court to rule 

on the motion to transfer the case. The writ will not issue unless the trial court fails 

to act in accordance with this opinion.

PETITION CONDITIONALLY GRANTED. 

PER CURIAM

Submitted on December 4, 2017

Opinion Delivered December 21, 2017

Before McKeithen, C.J., Horton and Johnson, JJ.