NO. 07-01-0256-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL B APRIL 17, 2002

______________________________ MASON BRISTOL and JBW LAND and MINERALS, I NC., Appellants
v. PLACID O IL COMPAN Y,

Appellee

_________________________________ FROM THE 1 21st JUDI CIAL DIS TRICT F OR YOAKUM COU NTY; NO. 6886; HON. KELLY G. MOORE, PRESIDING

_______________________________ MEMORAN

DUM OPINI

ON

_______________________________ Before BOYD, C.J., QUINN and JOHNSON, J.J. Mason Bristol and JBW Land and Minerals, Inc. (Bristol) appeal from a final judgment

entered in favor of Placid Oi l Compan y(Placid) . Their three points of error
concern venue. That i s, Bristol contends that er ror occurred w hen venue was transferred from Tarrant to Yoakum County, Texas. So too d o they asser t that any venue dispute was waived because Placid 1) did not timely secure a hear ing on itsmotion to transfer and 2)1 Th e ve rsion of §1 5.01 1 in ex istenc e at the tim e su it was filed sta ted th at: [a] cti ons for recovery of real propert

y or an estat e or i nter est i n real propert y, for par

ti ti on of re al pro perty, to re m ove enc um bran ces from the title to re al pro perty, or to qu iet title to real p rope rty sha ll be bro ugh t in the c oun ty in which all or a pa rt of the prop erty is loca ted. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §15.011 (Ve rnon 1986 ). 2 invoked the judicial power of the Tarrant Count

y court befor

e the motion was granted. We affirm. Issue One – Propriety of Order Transferring Venue Init ially, Bristol contends that the cau se should not have been transferred from Tarrant County. He believes this is so because the mandator y venue pr

ovision de scribed at§15.011 of the Tex as Ci vil Pract ice an d Reme dies Co de was inapp licable. 1 Furthermore, it all eged ly was in app licab le be caus e he h ad on ly sou ght, vi a the suit, monetary damag es as opposed to an interest in land. We disagree. Standard of Revi

ew “In determining whether venue was or was not proper, the appellate court shall consider the entire record, including the trial on the merits.” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §15.064 (b). This statutory provision allows us to review the decision on a record differentthan th at befor e the di stri ct cou rt at t he timeit ruled upon t he issue. Ruiz v. Conoco, Inc. , 868 S.W.2d 752, 757 (Tex. 1993); Bleeker v. Villarr eal , 941 S.W.2d 163, 167 (Tex. App.–Corpus Ch ri sti 1996, pet. dism’d by agr.). That is, we must indepen dently review the “entire record to determine w hether venue w as proper

in the ultimate county of suit.” Ruiz v. Conoco, Inc. , 868 S.W .2d at 757-58. So, if in reviewing the entire record we find any pr obative evidence illustrating that venue was proper in the county wherein judgment was entered, we must affirm the decis ion to transfer venue to that county. Id.3

Or, as stated by

the CorpusChristi Courtof Appeals, “our review considers on ly w hether the venue ruli ng was u ltimately vindicated by the fully devel oped record.” Bleeker v. Villarrea l , 941 S.W.2d at 167. Application of Standard First, as mentioned in footnote one, sui ts to recover realty or an interes t in realty must be filed in the county wh ere all or part of the propert y is located. T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §15.011 (Vernon 1986). Second, throu gh his live pl eading at the t ime of trial, Bristol s ought, among ot her things, the imposition of a constr uctive trust “on the
revenue received from the [oil] w ell in que stion and the lease . . . .” (Emphasi s added)

. Third, a constructive trust is a relationship with respect to property subjectin g o ne who holds legal title to pr

operty “to convey

it to another

. . . .” Talley v. Howsley

, 176 S.W.2d 158, 160 (Tex. 1943) . Fourth, given t he foregoing definition of a constructive trust, Bristol effectively demanded the conve yance of both the mi neral leasehol d at issue and r evenue produced therefrom to himsel f. Fifth, it is indi sputable that an oi l and gas lease constitutes
an interest i n land or real ty. Jupiter Oil Co. v. Snow, 819 S.W.2d 466, 46 8 (T ex. 1991). Sixth, since a mineral le ase constit utes an interest in land, logic dictates that Bristol’s dem and for a cons truc tive trust upon the l ease was tan tamount to an attempt to recover an intere st in realty . Seventh, s ince actions to recover an interest i n realty must be filed in the county wherein the land is located and the la nd at bar w as located in Y oakum2 To the ext ent t hat Bri stol sought a constr ucti ve tr ust vi a an amended pleadi ng fi led af ter the cause was tr ansferr ed from Tarrantto Yoa kum Coun ty, t he amendm ent woul d have ent it led Pl acid t o agai n seek transfer, ass um ing the Ta rran t Co unty dis tric t co ur t ha d in itially refu sed to tran sfe r the p roc eed ings

. Gold v. Ins all , 8 S.W .2d 54 2, 543 (Te x. Ci v. App. –Galvest on 1928, wri t di sm’d w.o. j. ) (st ati ng that one who has pr ev iou sly waiv ed an opport unity t o tr ansferve nu e m ay re ga in s uc h o pp or tun ity wh en the pla intif f am en ds his pleadi ng to al lege a new cause o f action implicating a different venue provision). Thus, i rrespect ive of whet her the demand for the t rust had be en as se rte d in Bri stol ’s i nit ial plead ing an d ret ained thro ughout t he cause or fi rst m e ntione d in his last plea ding , venu e still lay in Yoak um Co unty, i. e. the count y wher ein t he lan d was locat ed. 4 Coun ty, then mandatory venue was in Yoakum C ounty, the county where ju dgment was rendered. 2 In short, that th e legisl ature intended to have disputes involv ing the ow nership of land resolved in the county or counties wherein the land lay is clear. Up on considerin g the entire record before us, we conclude that the legislature’s intent was fulfilled at bar. The dispute regar

ding the interest i n realty was resol ved by t he district court for the county wherein t he land was located. Thus, w e cannot say that venue w as improper. Issue Two and

Three –W

aiver of Rig

ht to Tr ansfer Delay Bristol contends that Placid waived its venue complaint beca use it“did not sec ure”
a timely hearing on its motion to transfer. In support ther eof, he cited authori ty

imposing upon the movant an obl igation to r equest a he aring w ithin a reaso nable time, Whitworth
v. Kuhn , 734 S.W.2d 108, 111 (Tex. App.–Aust in 1987, no w rit), and topursue such a hearing. Grozier v. L-B Sprinkler & Plumbing Repair , 744 S.W .2d 306, 311 (Tex. App–Fo rt Worth 1988, writ denied). Yet, as pr oof that the dutieswere br eached, Bristo l merely cites to the amount of

time whic h lapsed between the date on w hich Placid filed its motion and the date on which the trial court eventually ruled on it; that period app roximated 32 months. Unmentioned by Bris tol is the date on which Placid req uested the hearing or the steps, if5

any, taken by the company to secure one. Yet, our review of the file disclosed th at Placid prayed that the matter “ be set for hearing ” in the cl osing paragraph of i ts motion and in its first amended answer

filed on October

30, 1997. So, to t he extent that a movant “has

the duty to request a setting,” T EX
. R. C IV
. P

. 87(1), it appears that Placid sought one at least twice. Given this circumstance, the reco rd does n ot support Bristol’s assertion in this respect. Nor does the recor

d afford us evidence upon whi c h to conclude that Placid somehow

acted less than diligently in pursuing the matter once a hearing w as sought. N or can one r easo nab ly att ribu te no n-f easa nce t o the comp any simp ly b ecause 32 months lapsed before the tri al court ruled on the moti on. A myri ad of things coul d have caused thatdelay. It

is quite possible that Placid did nothing. Equally possible is that Placid diligently pursued resol ution of its motion but that the trial co urt’s docket did not permit determination of the request. Or, it could be that the trial court awaited Bristol’s response to the motion, which response was not filed un til five weeks before the matter was formally submitted to the court. I n any c ase, the burden l ay wi th Bristol to present us w ith an appellate record suppor ting his contention that Placid w as less than di ligent, In re Spiegel , 6 S.W.3d 643, 646 (Tex. App.–Amaril lo 1999, no pet.) , and it did not

. Thus, to impute nonfeasance to the oil company would be to act u pon mere spec ulat ion, some thin g we cannot do. Furthermore, it may be that delay in obtaining a hearing provides grounds for th e trial court to deny a motion to transf er. Yet, such a delay does not mean that the trial court must deny it. It remains w ith in it s discreti on to neverth eless entertai n the motion on the merits i f it so cho oses. Kerrville State Hosp. v. Clark , 900 S.W .2d 4 25, 4 30 n. 2 (Te x.6

App.–Austin 1995), rev’d on other grounds , 923 S.W .2d 582 (Tex. 1995). Here, the court chose to entertain it, and, we cannot hold th at it abused its discretion in doing so. This is especiallyso given that Bristol nowhere asserts that the delay i mpaired his abi lity to defeat the motion. Invocation of T

rial Cour t’s J urisdicti on Last ly, Bristol as serts that the trial court was obligated to deny the motion because Placid invoked “ the judicial power of the Tar rant County Court in amanner inco nsistent with a continuing intention to tr ansfer venue.”The manner in w hich it all egedly i nvoked thatpower

was thro ugh filing a motion for summary judgment. Yet, Placid ex pressly made its request for s ummary judg ment subject to i ts moti on to transfer venue . Under that circumstance, seeking relief from the court did not result i n waiver of the pending motion to change ve nue. General Motors Corp. v. C astaneda , 980 S.W .2d 777, 783 (Tex. App.-- San Antonio 1998, pet. deni ed) (holdin g that GM di d not waive its motion to transfer because it stated in its la ter motions that same were s ubject to itsvenue motion)

. Next, the authorities cited by Bristol as support fo r his contentio n a re inapposite. For instance, the court in Ko hu t v. Mrs . B aird’s Bakeries, Inc. , 478 S.W .2d 1 39 (T ex. Civ. App.--Houston [14th Dist.] 1972, no wr it) was faced with a situation where Bai rd’s pursued summary judgment after its m otion to transf

er venue had been s ustained. That did not
occur here. Nor was the cas e at bar actual ly tri ed on the merits before th e ven ue issue
was heard; that is

what dist i ngui shes Gentry v. Tu cker , 891 S.W .2d 766 (Tex. App.-- Texarkana 1995, no writ) from the dispute before u s. Finall y, Dossey v. Oe hler , 359 S.W.2d 624 (Tex. Civ. App.--Eastland 1962, writ dism’d w.o.j.) is readily distinguish abl e7

since the plea of priv ilege filed there was made subject toa plea in abatement. That is, the defendantin Dossey

first mov ed to a bate the proceedi ng and then to tr ansfer venue, stating that the latter

was subj ect to the former. In doing so, it ignor ed the concept of due order of pleading s. Nothing like that happe ned here. Accordingly , w e overrul e the three iss ues asserted by Bristol and affirm the judgm ent e nter ed be low.

Brian Quinn Justice
Publish.