REVERSED AND REMANDED; Opinion Filed March 5, 2020

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-19-00228-CV

KEN-DO CONTRACTING, L.P., Appellant

V.

F.A. BROWN’S CONSTRUCTION, LLC D/B/A BROWN CONSTRUCTION 

AND BROWN’S CONCRETE CONSTRUCTION, Appellee

On Appeal from the 134th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-13-09249

MEMORANDUM OPINION

Before Justices Myers, Schenck, and Carlyle

Opinion by Justice Schenck

Appellant Ken-Do Contracting, L.P. (“Ken-Do”) appeals a judgment in favor 

of F.A. Brown’s Construction, L.L.C. d/b/a Brown Construction and Brown’s 

Concrete Construction (“Brown”). In its first of eleven issues, Ken-Do asserts the

trial court erred in failing to transfer venue from Dallas County to Ellis County. 

Because we conclude the trial court erred in failing to transfer venue to Ellis County, 

we reverse the trial court’s judgment and remand the case with instructions to 

transfer the case to Ellis County. Because all issues are settled in the law, we issue 

this memorandum opinion. TEX. R. APP. P. 47.4.
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BACKGROUND

Ken-Do was the general contractor on a Texas Department of Transportation 

construction project in Johnson County. In 2012, Ken-Do and Brown entered into a 

subcontract agreement for Brown to perform concrete work related to the project. 

Brown subsequently sued Ken-Do in Dallas County for breach of contract. Brown 

alleged venue was proper in Dallas County because Ken-Do had a principal office 

in Dallas County.

Ken-Do filed a motion to transfer venue denying it had a principal office in 

Dallas County and requesting the trial court transfer venue to Ellis County, where it 

maintained a principal office. Brown filed a response to Ken-Do’s motion, 

supported by the affidavit of its Vice President Thomas Brown. In his affidavit, 

Thomas Brown stated that Ken-Do had a principal office in Dallas County. To 

support the allegation, Thomas Brown relied on various documents attached to his 

affidavit that showed Ken-Do used a Dallas County post office box to conduct 

business. The trial court denied Ken-Do’s motion. Following a jury trial, the trial 

court rendered judgment in favor of Brown, awarding it damages and fees. Ken-Do

appealed that final judgment to this court in Ken-Do Contracting, L.P. v. F.A. 

Brown’s Constr., L.L.C., No. 05-16-00373-CV, 2017 WL 3381105, at *1 (Tex. 

App.—Dallas Aug. 7, 2017, pet. denied) (mem. op.).

In our prior panel opinion, we reviewed the evidence in the record to 

determine whether venue was proper in Dallas County as asserted by Brown. See 
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id. at *2. We concluded Brown failed to show venue was proper in Dallas County, 

and we examined whether there was any probative evidence in the record at that 

stage to show venue was proper in Ellis County, the county to which Ken-Do sought 

transfer. See id. at *3. We concluded there was no probative evidence in the record 

to show venue was proper in Ellis County. See id. Because neither party had made 

the necessary venue showing, we reversed the trial court’s judgment and remanded 

the case to the trial court to conduct further proceedings on the issue of venue. See 

id. at *4.

The day following the issuance of our mandate in our prior opinion, the trial 

court ordered that “this matter is TRANSFERRED to Johnson County, Texas, 

pursuant to the Court of Appeals, Fifth District of Texas at Dallas’s Opinion of 

August 7, 2017.” Brown filed a motion to reconsider in which it argued this Court 

did not order the trial court to transfer venue to Johnson County or any other county 

and that venue was proper in Dallas County because the parties’ contract was made 

in Dallas County and Brown performed the contract in part in Dallas County. In 

support of its motion, Brown submitted an affidavit in which its Vice President 

described events relating to the contract that occurred in Dallas County. The trial 

court denied that motion and signed an order dismissing the case for lack of 

jurisdiction. 

Brown petitioned this Court for mandamus relief, which we granted. See In 

re F.A. Brown’s Constr., LLC, No. 05-18-00804-CV, 2018 WL 4443281, at *1 (Tex. 
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App.—Dallas Sept. 18, 2018, orig. proceeding). In our mandamus opinion, we 

concluded the trial court acted outside the scope of our mandate and improperly 

exercised its discretion by failing to conduct further proceedings and ordering 

transfer to Johnson County. See id. We then ordered the trial court to issue an order 

vacating its order transferring the case to Johnson County and further ordered the 

trial court to conduct further proceedings on the issue of venue. See id. at *4.

After this Court’s mandamus opinion issued, Ken-Do filed a supplemental 

brief in support of its motion to transfer venue, to which it attached the affidavit of 

Ken Halverson, owner of Ken-Do. The trial court conducted a hearing at which it 

concluded venue was proper in Dallas County and reinstated the prior jury verdict. 

Ken-Do filed this appeal.

DISCUSSION

In its first issue, Ken-Do asserts the trial court erred in failing to transfer venue 

from Dallas County to Ellis County. Ken-Do argues this Court has already 

considered and rejected Dallas County as a proper venue in its prior opinion and that 

none of the additional evidence offered in the additional venue proceedings 

subsequent to the prior appeal would support a finding that venue was proper in 

Dallas County. Ken-Do urges Ellis County is proper because it is the county where 

Ken-Do’s principal office is located and where a substantial part of the events or 

omissions giving rise to the claim occurred.
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In our prior panel opinion, we set forth the standard of review we apply to a 

trial court’s venue determination: 

Section 15.064 requires that we consider the entire record, including 

the trial on the merits, to determine whether venue was or was not 

proper in the county of suit. TEX. CIV. PRAC. & REM. CODE ANN. § 

15.064(b). If there is no probative evidence to show venue was proper 

in the county of suit, we must then determine whether there is any 

probative evidence in the record to show venue was proper in the 

county to which transfer was sought. Id; Ruiz, 868 S.W.2d at 757. If 

there is any probative evidence to show venue was proper in that 

county, we remand with instructions to the trial court to transfer to that 

county. Ruiz, 868 S.W.2d at 757. If there is no probative evidence to 

show venue was proper in either the county of suit or the county to 

which transfer was sought, we must remand to the trial court for further 

proceedings on the venue issue. Id.

See Ken-Do Contracting, L.P., 2017 WL 3381105, at *2 (citing Ruiz v. Connoco, 

868 S.W.2d 752, 757 (Tex. 1993)). Further, when determining venue for a breach 

of contract claim, we consider where the contract was made, where it was performed, 

and where it was breached. See id. at *3 (citing In re Red Dot Bldg. Sys., Inc., 504 

S.W.3d 320, 323 (Tex. 2016) (orig. proceeding)).

In our prior panel opinion, we concluded there was no probative evidence in 

the record that venue was proper in Dallas County. See id. Despite this Court’s 

holding, Brown continued to argue in the trial court that venue was proper in Dallas 

County, claiming Brown performed in part the contract at issue and breaches of the 

contract occurred in Dallas County. In support of this argument, Brown submitted 

an affidavit in which its Vice President described events relating to the contract that 

occurred in Dallas County. In addition to Brown’s affidavit, the record contains one 
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other piece of evidence submitted after this Court’s prior panel opinion: the affidavit 

of Ken Halverson, owner of Ken-Do, which was attached to Ken-Do’s supplemental 

brief in support of its motion to transfer venue. The trial court considered this 

evidence and ultimately found venue to be proper in Dallas County despite our 

earlier opinion in which we concluded there was no evidence in the trial court to 

show venue was proper in Dallas County. See id. 

The trial court’s final judgment reinstating the jury verdict included its 

findings on venue as follows:

After reviewing the pleadings of the parties, reviewing the evidence on 

file herein and hearing the arguments of counsel the Court finds that 

[Ken-Do] solicited [Brown] to bid the contract at issue herein in Dallas 

County, the contract at issue herein was then made and entered into in 

Dallas County, performed in part in Dallas County and part of [KenDo]’s breaches occurred in Dallas County. Therefore, the Court finds 

Dallas County is a proper venue for this cause and the verdict returned 

on December 18, 2015 of the 12 duly qualified men and women who 

were selected and sworn in as the Jury in the cause should be reinstated 

as the verdict of this Court.

The foregoing findings indicate the trial court found venue was proper in Dallas 

County because all or a substantial part of the events or omissions giving rise to its 

claim occurred in Dallas County. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 15.002(a)(1). 
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Even assuming without deciding the trial court properly considered Dallas 

County as a proper venue in light of this Court’s prior opinion,

1 we cannot conclude 

the additional evidence supports a finding that venue is proper in Dallas County. 

I. Where the contract was made

In Thomas Brown’s affidavit, he alleged that he “negotiated, agreed to and 

entered into” the contract at issue at a jobsite in Dallas County with Ken-Do’s 

superintendent. As Ken-Do points out, this testimony contradicts Thomas Brown’s 

testimony at trial that he signed the contract at Ken-Do’s office with Ken-Do’s 

employee Amy Jo Ray. In Halverson’s affidavit, he testified Ken-Do had one office,

located in Waxahachie, Ellis County, Texas. Halverson further averred that KenDo’s employee Amy Jo Ray worked exclusively in Ken-Do’s office and never at a 

jobsite. 

II. Where the contract was performed

In his affidavit, Thomas Brown further alleged Brown performed the contract 

in Dallas County at least in part by “[a]cquiring, picking-up and transporting” 

various components and materials that were part of the contract at issue at locations 

in Dallas County. The contract at issue in this case is for Brown to perform concrete 

 

1 Arguably, this Court’s prior opinion necessarily and affirmatively established that venue is not proper 

in Dallas County such that the law of the case doctrine applies to exclude Dallas County as a proper venue 

in any subsequent proceeding. As the supreme court has explained, “[b]y narrowing the issues in successive 

appeals, the law-of-the-case doctrine further seeks to promote efficiency and uniformity in the decisionmaking process. Requiring a party to reargue issues previously lost in the court of appeals as a predicate 

to this Court’s review would obviously work at cross-purposes to the doctrine.” See Paradigm Oil, Inc. v. 

Retamco Operating, Inc., 372 S.W.3d 177, 182 (Tex. 2012) (under law-of-the-case doctrine, decision 

rendered in former appeal of case generally binding in later appeal of same case).
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work related to a construction project in Johnson County. More specifically, Brown 

contracted to furnish all material and necessary equipment and perform all labor 

necessary to “remov[e] and install[] inlets box culverts and RCP pipe.” In In re Red 

Dot Building System, Inc., the supreme court found that in a breach of contract action 

involving a contract for the sale of custom-made goods, the performance occurred 

in the county where the goods were fabricated. See In re Red Dot Bldg. Sys., Inc., 

504 S.W.3d at 323. In contrast, in this case, the contract specifically stated Brown 

was to perform concrete services in connection with a project located in Johnson 

County. See id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 15.035(a) (“ . . . if 

a person has contracted to perform an obligation in a particular county, expressly 

naming the county . . ., suit on or by reason of the obligation may be brought against 

him . . . in that county . . . .”).

III. Where the contract was breached

In his affidavit, Thomas Brown also argued Dallas County was where KenDo breached the contract, asserting Dallas County was where Ken-Do made verbal 

changes to the contract by insisting Ken-Do order and pay for materials from vendors 

located in Dallas County and by then failing to order or pay for materials supplied 

by a vendor located in Dallas County. At trial, Thomas Brown testified that Ken 

Halverson insisted the materials be ordered through Ken-Do’s office. But the only 

evidence of where Ken-Do’s office is located is (1) the post office box address used 

by Ken-Do, which we have already concluded is not a business office, see Ken-Do 
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Contracting, L.P., 2017 WL 3381105, at *2, (2) Ken-Do’s registered office in 

Waxahachie, Ellis County, and (3) Halverson’s affidavit in which he testified KenDo’s only office was located in Waxahachie, Ellis County, Texas. Thus, even if 

Thomas Brown’s affidavit established Ken-Do’s breaches for failure to make 

payments, those breaches occurred in Ellis County. 

We conclude the trial court erred by finding venue proper in Dallas County 

because there is no probative evidence to support such a finding. Accordingly, we 

sustain Ken-Do’s first issue.

As part of its first issue, Ken-Do argues the trial court should have transferred 

venue to the county to which Ken-Do sought transfer. We agree. A lawsuit may be 

brought “in the county of the defendant’s principal office of this state, if the 

defendant is not a natural person.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 15.002(a)(3). Principal office is defined as an office of a corporation “in which 

the decision makers for the organization within this state conduct the daily affairs of 

the organization.” Id. In his affidavit, Halverson states “all business decisions are 

made in[,] . . . [a]ll orders for materials for projects are placed[,] . . . [and] all 

materials payments are made out of . . .” Ken-Do’s sole office located in 

Waxahachie, Ellis County. Accordingly, the additional evidence filed by the parties 

after this Court’s prior opinion establishes Ken-Do’s principal office is located in 

Waxahachie, Ellis County, Texas. 
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CONCLUSION

Because we conclude there is probative evidence to show venue is proper in 

Ellis County, the county to which Ken-Do sought transfer, we reverse the trial 

court’s judgment and remand the case with instructions to transfer the case to Ellis 

County.

190228F.P05

/David J. Schenck/

DAVID J. SCHENCK

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

KEN-DO CONTRACTING, L.P., 

Appellant

No. 05-19-00228-CV V.

F.A. BROWN’S CONSTRUCTION, LLC 

D/B/A BROWN CONSTRUCTION AND 

BROWN’S CONCRETE 

CONSTRUCTION, Appellee

On Appeal from the 134th Judicial District 

Court, Dallas County, Texas

Trial Court Cause No. DC-13-09249.

Opinion delivered by Justice Schenck. 

Justices Myers and Carlyle participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

REVERSED and this cause is REMANDED to the trial court with instructions to transfer the 

case to Ellis County.

It is ORDERED that appellant KEN-DO CONTRACTING, L.P. recover its costs of this 

appeal from appellee F.A. BROWN’S CONSTRUCTION, LLC D/B/A BROWN 

CONSTRUCTION AND BROWN’S CONCRETE CONSTRUCTION.

Judgment entered this 5

th

day of March, 2020.