1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

_________________ NO. 09
- 17
- 00 449
- CV



### _________________
IN RE BESTEST, INC. AND JOSHUA ALAN JORDAN

________________________________________________________________________ Original Proceeding 136th District Court of Jefferson County, Texas

Trial Cause No. D
- 199,594

________________________________________________________________________ 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 condit ionally 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 Refractory2

Construction Serv ices 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 se ction 15.002(a)(3) of the Ci vil 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 allege d 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 corpor ate office in Galveston County. They specifically denied t he plaintiff’s contention t hat Refractory Construction Services Co., LLC does business in Jefferson County, Texas at their corporate offices in Nederland, Texas

. They requested that the case be t ransferred to Galveston County. On June 20, 2017, a deposition was taken of Thomas Vaughn, the Beaumont Area Manager for Refractory. According to the parties, th e trial court initially heard the motion s 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 determin e a motion to transfer venue promptly. Holly Johnson filed a3

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 reso lution 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 agr eed to having the trial court keep Refractory’s motio n 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, c ounsel for BesTest and Jordan did not voice an object ion to the trial court’s decision to delay ruling on their motion
to transfer.4

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 the ir 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 defendan ts had waived venue and additional discovery would assist the court in determining wh ether 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 t hat 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 n or 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 .”5

A trial court commits a clear abuse of discretion when it refuses to rule on a pending motion wit hin 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 c onsidered 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 m otion 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 an d 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 request ed a ruling , it appears the trial court ha d before it all the information required to consider the merits of the venue issue, which concerned6

whether Refractory had a principal office in Jefferson County. The trial court’s
stated reason to f

urther delay its decision on the motion to transfer venue for several additional months does not concer n 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 ab used its discretion by failing to determine venue promptly, as required by the applicable rule.
See i d

. ; 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 6 94, 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 and7

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

Submi tted on December 4, 2017 Opinion Delivered December 21, 2017 Before McKeithen, C.J., Horton and Johnson , JJ.