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CAUSE NO. 12-17-______-CV

In The 

Court of Appeals 

for the 

Twelfth Appellate District 

Tyler, Texas 

IN RE: 

RIGNEY CONSTRUCTION & DEVELOPMENT, LLC 

RELATOR’S RIGNEY CONSTRUCTION & 

DEVELOPMENT, LLC 

PETITION FOR WRIT OF MANDAMUS 

TO THE HONORABLE JUDGES OF SAID COURT: 

 NOW COMES RIGNEY CONSTRUCTION & DEVELOPMENT, LLC, 

Relator in the above styled and numbered cause, and this its PETITION FOR 

WRIT OF MANDAMUS, demonstrating that the trial court’s failure to transfer 

this cause to Brooks County pursuant to mandatory venue provisions contained in 

the parties’ contract was error, along with its severance of claims interwoven 

claims arising from the same transactions and occurrences, and would show unto 

the Court as follows: 

STATEMENT OF NATURE OF CASE

ACCEPTED

12-17-00370-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

11/28/2017 9:32 AM

Pam Estes

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 11/28/2017 9:32:59 AM PAM ESTES Clerk
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This matter involves construction of a school in Brooks County. Real Party 

in Interest, Red Dot Building Systems, provided a quote to Relator which Relator 

utilized to bid to for the construction of the school for Real Party in Interest Brooks 

County I.S.D. Relator was awarded the contract with Real Party in Interest Brooks 

County I.S.D., and the contract they entered required all disputes be adjudicated in 

Brooks County. Relator then entered into a contract with Real Party in Interest

Red Dot Building System, which also incorporated such forum selection clause. 

When, in violation of the contract, Red Dot Building System sued Relator in 

Henderson County, the trial court, the 173rd District Court of Henderson County, 

Hon. Dan Moore presiding, refused to transfer the case to Brooks County. 

Furthermore, to maintain improper venue in Henderson County, the trial court 

severed Relator’s third party claims against Real Party Brooks County I.S.D., even 

though such claims arise out of the very same transactions and occurrences, and 

create the very real specter of inconsistent jury verdicts. Relator herein seeks relief 

from both determinations.

STATEMENT OF JURISDICTION

This Court possesses jurisdiction pursuant to Tex. Civ. Prac. & Rem. Code 

§15.0642, which authorizes this Court to grant writs of mandamus to effectuate 

mandatory venue provisions. This Court also possesses jurisdiction pursuant to 

Tex. Gov't Code §22.221 which authorizes this Court to issue writs of mandamus 
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when a trial court has refused to enforce a forum selection clause, and when a trial 

court has improperly severed claims arising out of the same transactions and 

occurrence.

ISSUES PRESENTED

Did the trial court err in refusing to enforce the mandatory venue provisions 

of parties’ contract?

Did the trial court err in refusing to transfer venue, when the plaintiff failed 

to file a response to the defendant’s motion?

Under the current mandatory venue statutes, is Brooks County I.S.D. entitled 

to be sued in Brooks County?

Can this Court grant mandamus relief because the trial court refused to 

enforce mandatory venue provisions, both contractual and statutory?

Does Texas follow policies and procedures to promote judicial economy?

Is a trial court authorized to sever claims against parties arising out of the 

same transaction and occurrence, merely to permit the plaintiff to effectuate its 

improper choice of forum?

Is a trial court authorized to sever contribution claims?

Can this Court grant mandamus relief, when a trial court improperly severs 

causes of action?

STATEMENT OF FACTS
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Much like the fabled case of Jarndyce v. Jarndyce, this matter constitutes 

the continuation of a long running controversy. See, In re Red Dot Building 

System, Inc., 504 S.W.3d 320 (Tex. 2016); In re Philadelphia Indemnity Ins. Co., 

2017 WL 3224886 (Tex. App.--Tyler 2017, no pet). Such long history clearly 

demonstrates improper litigant and judicial attempts to maintain a controversy 

before it, when the controversy clearly belongs in another forum.

Brooks County I.S.D., Real Party in Interest (hereinafter referred to as 

“School District”) desired the construction of a new building. After requesting 

proposals, Brooks County I.S.D. selected Rigney Construction & Development, 

Relator herein, to be the general contractor on the project. As a result, the parties 

entered a detailed contract containing plans and specifications. This contract also 

contained a forum selection clause, mandating venue for all disputes in Brooks 

County. Exh. A.

In order to perform this contract, Relator (hereinafter referred to as “General 

Contractor”) entered into a contract with Real Party in Interest Red Dot Building 

Systems, for providing a steel building. Such contract incorporated the contract 

between School District and General Contractor, including its venue provision. 

Exh. B.

During the course of performance, Red Dot Building Systems (hereinafter 

referred to as “Subcontractor”) claimed that School District’s plans and 
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specifications were contained numerous errors, requiring them to perform 

additional work, and thus demanded additional compensation. When the architect 

who informally arbitrated the matter ruled against it, Subcontractor filed suit in 

Henderson. Exh. C. In response, General Contractor filed a motion to transfer 

venue, claiming that mandatory venue lay in Brooks County. Exh. D-1. 

Subcontractor failed to file a timely venue response as required by Tex. R. Civ. P.

87(1); the response was filed seven days before the hearing (instead of the 

mandated thirty). Exh. D-2. General Contractor expressly objected. Exh. D-3. 

Subcontractor never requested leave for late filing, and the trial court never granted

leave.1 As a result, Subcontract failed to satisfy its burden of demonstrating proper 

venue; indeed, the trial court had nothing before it which in any way supported 

Subcontractor’s position. Nevertheless, the trial court refused to transfer the matter 

to Brook County. Exh. D-4.

At the hearing on the motion to transfer venue, the trial court specifically 

ordered General Contractor to file a third party petition against School District. 

The trial court further indicated that when General Contractor did so, it would 

transfer the matter to Brooks County. Exh. E, p. 15. Because such statement 

amounted to leave to file a third party claim against School District, General 

 

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To the extent that the trial court granted leave, such leave amounted to an abuse of discretion, 

because Subcontractor completely failed to explain or introduce evidence why such pleading was 

tardy. See, e.g., In Interest of Z.W.C., 856 S.W.2d 281, 283 (Tex. App.--Fort Worth 1993, no 

writ) (trial court abused discretion by granting relief when no evidence was presented).
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Contractor did so. (Additionally, this pleading asserted a counterclaim against 

Subcontractor). Exh. F. School District was duly served with citation and filed an 

answer.

Seeing its improper venue slipping away, and ignoring the fact that the trial 

court had orally granted leave, Subcontractor filed a motion to strike General 

Contractor’s third party petition, claiming that General Contractor had failed to 

obtain leave. In the alternative, it sought to sever General Contractor’s claims 

against School District, Exh. G, even though contribution claims cannot be 

severed.

In response, General Contractor filed a motion for leave to file a third party 

complaint. Exh. H-1. General Contractor subsequently filed a more detailed 

response to Subcontractor’s motion to strike, pointing out that severance was 

improper because of the interwoven nature of the claims, and because claims for 

contribution were being asserted. Exh. H-2. In the meantime, School District filed 

an answer, seeking transfer of the case to Brooks County. Exh. I.

At the hearing on Subcontractor’s Motion to Strike, no evidence was 

presented. The trial court claimed that General Contractor failed to request leave 

to file its third party petition, Exh. J-1, an assertion which is demonstrably false. 

Exh. H-1. The trial court expressly ignored its prior statement that it would 

transfer the case to Brooks County once School District was joined as party, 
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claiming it was a “brash statement” (whatever that means). Exh. J-1. Instead, in a 

blatant attempt to maintain a lawsuit which it knows2belongs in Brooks County, 

the trial court severed General Contractor’s claims against School District, and 

transferred them to Brooks County. However, the trial court maintained 

Subcontractor’s claims against General Contractor before it. Exh. J-2; Exh. J-3.

But the trial court was not authorized to sever such claims; contribution 

claims cannot be severed, and Subcontractor failed to satisfy the test necessary for 

severance. Furthermore, such severance raises the specter of inconsistent verdicts, 

and wastes precious judicial resources. Accordingly, General Contractor is 

requesting relief from this Court.

SUMMARY OF ARGUMENT

Mandatory venue between School District and General Contractor lay in

Brooks County, pursuant to the contract and the mandatory venue statutes. 

Likewise, mandatory venue between General Contractor and Subcontractor lay in

Brooks County pursuant to the contract as General Contractor plead in its original 

motion to transfer venue, especially since Subcontractor failed to file a timely

venue response. Accordingly, the trial court erred in failing to transfer venue to 

Brooks County, which warrants mandamus relief.

 

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For another example of completely tortured and legally incorrect reasoning by the trial court to 

maintain venue of the underlying lawsuit, please see this Court’s initial opinion in In Re: 

Philadelphia Indemnity Ins. Co., Cause No. 12–17–00117–CV (Tex. App.--Tyler 2017, no pet.).
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School District was entitled to venue in Brooks County, and its entitlement 

to such venue requires the entire case to be transferred there. Recognizing this, the 

trial court severed School District and returned it to whence it came, even though 

under Subcontractor’s factual theory, School District caused its entire problems

with deficient plans and specifications. But the trial court abused its discretion in 

doing so, because the interwoven requirement for severance was not satisfied, and 

because contribution claims cannot be severed from the main case. Accordingly, 

the trial court erred, warranting mandamus relief.

ARGUMENT

[A] Mandatory Venue Lies in Brooks County

{1} Parties Contractually Agreed to Venue in Brooks County

School District and General Contractor entered into a contract concerning 

the construction of the school. The general conditions of the contract Article 13.1 

provided as follows:

Exclusive venue for any action arising out of the Project 

or the Contract Documents is in the state courts of the 

county in which the Owner's administrative offices are 

located. Exh. A, §13.1. 

This provision is also incorporated into the contract between General Contractor 

and Subcontractor. Exh. B. 

Subcontractor submitted its bid for its Pre-Engineered Metal Building scope 
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of work "per plans and specs", with only the listed deviations. Abolition of the 

venue provisions was not among them. Exh. B, p. 5. Subcontractor's bid not only 

incorporated the plans, but also in section 13120 of the “specifications”,

specifications which Subcontractor referenced in its bid. Exh. B-1. Part 1, 

1.00(A) of said section incorporates the exclusive venue provision as part of 

Subcontractor’s section and requirements. Since Subcontractor’s bid was per plans 

and “specifications”, Subcontractor incorporated such provisions, and now cannot 

deny that it is bound by the mandatory venue provision in Brooks County.

Under general principles of Texas contract law, separate terms may be 

incorporated by reference into a contract. Tribble & Stephens Co. v. RGM 

Constructors, L.P., 154 S.W.3d 639, 663 (Tex. App.--Houston [14th Dist.] 2004, 

pet. denied). “A contractual term is not rendered invalid merely because it exists 

in a document incorporated by reference.” In re D. Wilson Constr. Co., 196 

S.W.3d 774, 781 (Tex. 2006). Accordingly, the forum selection provision 

contained in the School District/General Contractor contract was incorporated into 

the contract between General Contractor and Subcontractor. See, Bancroft Life & 

Cas. ICC, Ltd. v. Davnic Ventures, L.P., 2013 WL 1222112 (S.D. Tex. 2013); 

Bancroft Life & Cas. ICC, Ltd. v. FFD Resources III, LLC, 2012 WL 2368302

(S.D. Tex. 2012).

Despite any prior hostility to such clauses, Texas' venue statutes now 
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provide:

An action arising from a major transaction shall be 

brought in a county if the party against whom the action 

is brought has agreed in writing that a suit arising from 

the transaction may be brought in that county.

Tex. Civ. Prac. & Rem. Code §15.020(b). This statutory provision creates 

mandatory venue. In re Group 1 Realty, Inc., 441 S.W.3d 469, 472 (Tex. App.--El 

Paso 2014, no pet.). Indeed, this provision controls over all other possible venue 

provisions. In re Fisher, 433 S.W.3d 523, 532 (Tex. 2014). As applied herein, the 

trial court erred in failing to transfer venue.

Furthermore, the trial court erred in failing to transfer venue because 

Subcontractor failed to file a timely response (and thus it was not before the court). 

Because Subcontractor’s response was not before the trial court, likewise its 

arguments and evidence were not properly before the trial court. Cf., Benchmark 

Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996)(late filed summary judgment 

evidence not before trial court unless leave granted); unlike the plea of privilege, a 

motion to transfer venue is not an evidentiary hearing. Tex. R. Civ. P. 87.3(b).

Moreover, the lack of a response requires a transfer of venue. After a 

defendant has filed a motion to transfer venue, the burden shifts to the plaintiff to 

present evidence the venue is proper. Tex. R. Civ. P. 87.2(a). If no evidence of 

proper venue has been presented, then the trial court must transfer venue. The best 

analogy is a no evidence motion for summary judgment; after a proper motion has 
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been filed, the non movant must file a response, or else the trial court must grant 

the motion. Lucio v. John G. and Marie Stella Kenedy Mem'l Foundation, 298 

S.W.3d 663, 672 (Tex. App.--Corpus Christi 2009, pet. denied).

{2} School District Entitled to Venue in Brooks County

In addition to the mandatory venue provision in the contract, it is also 

undisputed that School District is a political subdivision. Pursuant to statute, 

mandatory venue lies in the county where a school district is located. Tex. Civ. 

Prac. & Rem. Code §15.0151. As applied to the case at bar, this is Brooks County. 

And because School District is entitled to venue in Brooks County, the entire case 

must be transferred there.

{3} Mandamus Appropriate to Enforce Mandatory Venue

Traditionally, in order to obtain mandamus relief, a relator was required to 

demonstrate an abuse of discretion for which he lacked an adequate remedy at law. 

Regardless of such traditional requirements, the Texas Legislature has expressly 

provided that a litigant is entitled to mandamus relief to enforce mandatory venue 

provisions. Tex. Civ. Prac. & Rem. Code §15.0642. Accordingly, General 

Contractor is entitled to a writ of mandamus herein if it proves entitlement to 

mandatory venue. Id. It has clearly done so. Accordingly, mandamus relief is 

proper herein.

Likewise, it is well settled that mandamus relief is proper to enforce forum 
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selection clauses. In re Zotec Partners, LLC, 353 S.W.3d 533, 536 (Tex. App.--

San Antonio 2011, no pet.). "[A]n appellate remedy is inadequate when a trial 

court improperly refuses to enforce a forum selection clause because allowing the 

trial to go forward will vitiate and render illusory the subject matter of an appeal--

i.e., trial in the proper forum." In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 

(Tex. 2010). Such authority also authorizes this Court to transfer venue Brooks 

County.

[B] Trial Court Erred in Severing Cases

{1} Texas Requires Judicial Economy

Texas possesses a long standing policy of precluding multiplicity of suits. 

Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 651 (1958); State ex rel. City of

Colleyville v. City of Hurst, 519 S.W.2d 698, 701 (Tex. Civ. App.--Fort Worth

1975, writ ref’d n.r.e.). Thus, a plaintiff can join all claims which he possesses 

against a defendant, Roberts v. Dunn, 426 S.W.2d 273, 275 (Tex. Civ. App.--

Dallas 1968, no writ), and must do so if the claims arise from the same the same 

transaction or occurrence. Barr v. Resolution Trust Corp. ex rel. Sunbelt Federal 

Savings Ass’n, 837 S.W.2d 627, 630-31 (Tex. 1992). Likewise, a claimant can 

join several defendants into a single lawsuit, if the claims against them arise out of 

the same transaction or occurrence. Tex. R. Civ. P. 40. “Under the policy of our 

law to avoid a multiplicity of suits, the courts are liberal in allowing parties to be 
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joined when the joinder cannot result in prejudice.” Roy Mitchell Contracting Co. 

v. Mueller Co., 326 S.W.2d 522, 525 (Tex. Civ. App.--Texarkana 1959, writ ref’d 

n.r.e.).

A severance divides one lawsuit into two. Kansas Univ. Endowment Ass'n 

v. King, 350 S.W.2d 11, 19 (Tex. 1961). Obviously, a severance runs counter to 

this policy of liberal joinder. As the Texas Supreme Court has recognized in the 

class action context:

Piecemealing personal injury litigation by having 

separate juries decide the common and individual issues 

works a substantial change in the nature of the jury trial 

itself. Such a procedure forces two juries to evaluate 

discreet issues out of context and without knowledge of 

all the evidence. This procedure can also lead to 

inconsistent verdicts between class members. Moreover, 

the common and individual issues may be so interwoven 

that the litigants would have to present much of the same 

evidence to both juries, wasting the court's time and the 

litigants' money.

Southwestern Refining Co., Inc. v. Bernal, 22 S.W.3d 425, 440 (Tex. 2000).

{2} Severance Improper Herein Because Claims Interwoven

In order for a severance to be proper, each of the following must be 

demonstrated:

1. the controversy involves more than one cause of 

action; 

2. the severed claim is one that would be the proper 

subject of a lawsuit if independently asserted; and 
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3. the severed claim is not so interwoven with the 

remaining action that they involve the same 

facts and issues.

F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex. 2007). 

Thus, the issue is whether General Contractor’s claims against School District are 

interwoven with its claims against Subcontractor, and whether Subcontractor’s 

claims against General Contractor are interwoven with General Contractor’s claim 

against School District and Subcontractor; after all, these causes of action all arise 

from the same transaction.

Claims are interwoven if the same issues or the same issues must be decided

in both cases. See, Coalition of Cities for Affordable Utility Rates v. Public Utility 

Commission of Texas, 798 S.W.2d 560, 564 (Tex. 1990), cert. denied, 499 U.S. 

983, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991). Consequently, “Though the 

propriety of severance must be reviewed on a case-by-case basis, when the severed 

and unsevered claims arise out of the same transaction or occurrence and the facts 

necessary to show liability and damages with regard to all claims are roughly the 

same, severance is generally improper.” Hummell v. Medaphis Physician 

Services Corp., 1998 WL 35277043 at 3 (Tex. App.--Corpus Christi 1998, no 

writ)(emphasis added). 

In the case at bar, the following is just a partial list of identical issues which 

must be adjudicated in both the Henderson County case and the Brooks County 
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case:

 What are do the plans and specifications for the 

building in question require for the pre-engineered 

metal building?

 What were School District’s obligations under 

these transactions?

 What were General Contractor’s obligations under 

these transactions?

 What were Subcontractor’s obligations under these 

transactions?

 What was actually delivered by Subcontractor?

 Did what was actually delivered by Subcontractor 

comply with the plans and specifications for these 

transactions?

 If what was actually delivered by Subcontractor 

did not comply with the plans and specifications 

for these transactions, was it Subcontractor’s fault?

 If what was actually delivered by Subcontractor 

did not comply with the plans and specifications 

for these transactions, was it General Contractor’s 

fault?

 If what was actually delivered by Subcontractor 

did not comply with the plans and specifications 

for these transactions, was it School District’s 

fault?

 If what was actually delivered by Subcontractor 

complied with the plans and specifications for 

these transactions, what are the damages suffered?

 If what was actually delivered by Subcontractor
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complied with the plans and specifications for 

these transactions, is School District responsible 

for the damages suffered?

 If what was actually delivered by Subcontractor 

did not comply with the plans and specifications 

for these transactions, what are the damages 

suffered?

 Is Subcontractor entitled to the approximately 

$100,000 retained by School District?

 Is General Contractor entitled to the approximately 

$100,000 retained by School District?

 Is School District entitled to the approximately 

$100,000 retained by it?

Likewise, the following is just a partial list of identical evidence which must be 

presented in both the Henderson County case and the Brooks County case:

 Copy of initial contract between School District 

and General Contractor (containing plans and 

specifications).

 Copy of contract between General Contractor and 

Subcontractor.

 Evidence of what was required under contract 

between School District and General Contractor.

 Evidence of what was required under contract

between General Contractor and Subcontractor.

 Evidence of what was actually provided by 

Subcontractor.

 Pictures of what was actually provided by 

Subcontractor.
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 Evidence of whether goods, materials and services 

provided by Subcontractor complied with contract 

between School District and General Contractor.

 Evidence of whether goods, materials and services 

provided by Subcontractor complied with contract 

between General Contractor and Subcontractor.

 Evidence of whether goods, materials and services 

provided by Subcontractor complied with the 

bidding requirements of the plans and 

specifications.

 The difference in value between goods, materials 

and services actually provided by Subcontractor, 

and those required in the contract between School 

District and General Contractor.

 The difference in value between goods, materials 

and services actually provided by Subcontractor, 

and those required in the contract between General 

Contractor and Subcontractor.

 The determination by the project’s architect that 

Subcontractor was not entitled to any more 

monies.

 The determination by the project’s architect that 

Subcontractor was obligated to provide certain 

items per plans and specifications.

Because of the overlap of evidence and issues, the trial court clearly abused its 

discretion in severing the claims. See, e.g., Levetz v. Sutton, 404 S.W.3d 798, 803 

(Tex. App.--Dallas 2013, pet. denied); Bates v. First Nat. Bank of Waco, 502 

S.W.2d 181, 185 (Tex. Civ. App.--Waco 1973, no writ).
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In addition to similarity in issues and evidence, claims are interwoven if the 

severance may result in inconsistent verdicts. As one court has explained in the 

context of a medical malpractice case:

In his fourth amended petition, [patient] alleged a 

continuous course of treatment constituting one 

continuous transaction, jointly producing an indivisible 

injury. Accordingly, the damages, if any, suffered by 

[patient] from the acts [patient] alleges in the severed 

claims, necessarily relate to and are intertwined with the 

damages he suffered from the alleged acts of the Harris 

County defendants. At a single trial of all claims, the 

finder of fact will be asked, for each entity concerning 

which there is evidence of some responsibility for 

[patient’s] injuries, to assign a percentage of that 

responsibility; the percentage the finder of fact assigns to 

each such entity will necessarily affect, and be affected 

by, the percentage of responsibility it assigns to each of 

the other such entities. If the severance order were 

allowed to stand, and the case were to proceed as two 

separate suits, then that relationship would hold true only 

in the abstract, and not in practice. The severance of the 

claims into two separate suits would not, of itself, 

preclude each set of defendants from presenting evidence 

that the defendants on trial in the other suit were 

responsible for [patient’s] injuries. In each of those suits, 

the facts and issues relating to each particular entity's 

liability for [patient’s] injuries would be the same. 

Additionally, the respective triers of fact could each find 

that [patient] had been injured and that the parties over 

whom their respective courts had no jurisdiction were 

collectively 100 percent responsible for his injuries, with 

the nonsensical result that [patient] would recover 

nothing, despite those findings. On the other hand, the 

respective triers of fact could, instead, each decide that 

the parties over whom their respective courts did have 

jurisdiction were collectively 100 percent responsible for 

Jones's injuries, leading to the equally nonsensical result 
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that there would be, at least temporarily, two different 

judgments for full compensation for the same injuries to 

[patient].

If the severance order were allowed to stand, and the case 

were to proceed as two separate suits, it is, of course, by 

no means certain that either of these most extreme results 

we have suggested here, will actually be realized. 

However, any similar but less extreme result that might 

come to pass would remain nonsensical, and therefore 

unjust, for the same reason. Accordingly, the severance 

makes an unjust result, either over- or undercompensating [patient] for any injuries he may ultimately 

be shown to have suffered, not merely possible, but 

probable.

Jones v. Ray, 886 S.W.2d 817, 821-22 (Tex. App.--Houston [1st Dist.] 1994, no 

writ); see also, Santos v. Holzman, 2005 WL 167309 at 2 (Tex. App.--Corpus 

Christi 2005, pet. denied).

In the case at bar, the trial court’s severance creates a real prospect of 

inconsistent verdicts. School District is retaining approximately $100,000 

concerning the payment of claims relating to Subcontractor’s work. In the 

Henderson County case, the jury may determine that Subcontractor is entitled to 

this money. However, in the Brooks County case, the jury may determine that 

School District is entitled to this money. Both cannot be correct. Accordingly, the 

severed claims are clearly interwoven, and the trial court erred in holding they 

were not. See, e.g., Madeksho v. Abraham, Watkins, Nichols & Friend, 112 

S.W.3d 679, 690 (Tex. App.--Houston [14th Dist.] 2003, pet. denied); Jones v. 
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Ray, supra; see also, Pierce v. Blalack, 2017 WL 4320411 at 5 (Tex. App.--

Texarkana 2017, no pet.)(denial of severance proper because severance would have 

created possibility of inconsistent verdicts).

Furthermore, General Contractor questions whether severance is even 

legitimately possible in this context. As previously noted, General Contractor has 

sued the School District for contribution; it was School District’s plans and 

specifications which created any confusion and Subcontractor’s demands in the 

initial instance. A litigant is entitled to have the same jury determine all parties 

who are responsible in the same lawsuit. F.F.P. Operating Partners, L.P. v. 

Duenez, supra. As a result, all claims for contribution must be tried in the main

lawsuit; they cannot be severed and tried separately. BDO Seidman, LLP v. 

Bracewell & Patterson, LLP, 2003 WL 124829 at 2 (Tex. App.--Dallas 2003, pet. 

denied); Casa Ford, Inc. v. Ford Motor Co., 951 S.W.2d 865, 876 (Tex. App.--

Texarkana 1997, pet. denied). Yet, the trial court’s severance order does precisely 

this, mandating that two different juries determine who is responsible, based on the 

same evidence. As a result, it is improper. BDO Seidman, LLP v. Bracewell & 

Patterson, LLP, supra; Casa Ford, Inc. v. Ford Motor Co., supra.

As previously noted, one of the reasons for joinder is judicial economy, and

as the Texas Supreme Court noted approximately thirty years ago, “The need for 

judicial economy has recently become more acute because the dockets of our trial 
21

courts are overburdened.” Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 246-47 

(Tex. 1988). Furthermore, such liberal joinder reduces costs, not only costs to the 

litigants but costs to the system. Atlas Roofing Co. v. Hall, 150 Tex. 611, 245 

S.W.2d 477, 480 (1952). But it is impossible to argue that the trial court’s 

severance accomplishes this goal. Instead of one lawsuit to resolve all the issues, 

now there are two, requiring two judges, two courtrooms, two court reporters, two 

district clerks, two juries, two trials, two judgments, and two appeals. The same 

evidence will need to be presented twice. The judicial system will be required to 

hear and consider the same evidence twice, increasing costs to everyone involved. 

Such a thwarting of the policies regarding joinder and severance shows the trial 

court’s determination is wrong.

{3} Mandamus Proper For Improper Severance

Admittedly, mandamus will not issue “when the law provides another plain, 

adequate, and complete remedy.” In re Tex. Dep't of Family & Protective Sevices, 

210 S.W.3d 609, 613 (Tex. 2006). Furthermore, the issue of severance can be 

reviewed on appeal. In re Hoover, Bax & Slovacek, L.L.P., 6 S.W.3d 646, 649 

(Tex. App.--El Paso 1999, no writ); Nicor Exploration Co. v. Florida Gas 

Transmission Co., 911 S.W.2d 479 (Tex. App.--Corpus Christi 1995, writ denied). 

However, appeal “is no remedy at all for the irreversible waste of judicial and 

public resources.” In re Masonite Corp., 997 S. W.2d 194, 198 (Tex. 1999).
22

Accordingly, whether mandamus or appeal constitutes the appropriate 

remedy is not susceptible to rigid rules or formulas; rather, appellate courts must 

consider a range of both public and private interests in determining whether the 

benefits of mandamus review outweigh the detriments. In re Prudential Ins. Co. of 

Am., 148 S.W.3d 124, 135-36 (Tex. 2004). Mandamus is appropriate to preserve 

important substantive and procedural rights from impairment or loss, and spare 

private parties and the public the time and money utterly wasted enduring eventual 

reversal of improperly conducted proceedings. In re Essex Ins. Co., 450 S.W.3d 

524, 528 (Tex. 2014); In re State, 355 S.W.3d 611, 615 (Tex. 2011); In re McAllen 

Medical Center, 275 S.W.3d 458, 465 (Tex. 2008).

When measured by such standards, improper granting a severance is 

reviewable by mandamus, and should be issued in the case at bar. As previously 

shown, because of the severance, two juries will be considering the same evidence. 

Based on the same evidence, the two juries will be deciding the same issues. 

Indeed, the two juries may reach inconsistent results. While the severance could 

be corrected on appeal, the time and effort spent on the initial cases would not be 

irreversible. Accordingly, mandamus relief is appropriate. In re Energy Resources 

Technology GOM, Inc., 2012 WL 4754006 at 2 (Tex. App.--Houston [14th Dist.] 

2012, no pet.); In re Oncor Elec. Delivery Co., LLC, 355 S.W.3d 304, 305 (Tex. 

App.--Dallas 2011, no pet.); In re El Paso County Hospital Dist., 979 S.W.2d 10, 
23

13 (Tex. App.--El Paso 1998, no writ); see also, In re Lewis Casing Crews, Inc., 

2014 WL 3398170 at 5 (Tex. App.--Eastland 2014, no pet.); In re Altec Industries, 

Inc., 2012 WL 2469542 at 2 (Tex. App.--Waco 2012, no pet.). To paraphrase the 

Corpus Christi Court of Appeals, “If the [severance] is improperly granted, 

taxpayers, the court system, and the parties themselves will suffer a meaningless 

trial, only to have the results set aside on appeal. Such pleadings, motions, 

discovery, jury selection, evidence, trial and eventual judgment amount to a clear 

waste of judicial resources, causing the loss of rights, rendering mandamus 

proper.” In re Estrada, 492 S.W.3d 42, 46 (Tex. App.--Corpus Christi 2016, no 

pet.). 

Even prior to the Supreme Court’s expansion in In re Prudential Ins. Co. of 

Am., supra, mandamus is appropriate if the error could not be properly presented 

in an appeal. Walker v. Packer, 827 S.W.2d 833, 837 (Tex.1992). In the case at 

bar, General Contractor would have difficulty demonstrating harm flowing from 

the severance. First, how would this Court receive the record of the Brooks 

County proceedings? Second, the severance would likely skew the proceedings, 

potentially affect the outcome of the litigation, and compromise the presentation of 

General Contractor’s defense in ways unlikely to be apparent in the appellate 

record. For example, in the Henderson County proceeding, Subcontractor is likely 

to complain that School District’s plans and specifications are improper, and 
24

therefore it is entitled to additional compensation. Conversely, in the Brooks 

County lawsuit, School District will claim that the plans and specifications are 

proper, and therefore Subcontractor is not entitled to any compensation. The 

skewing of proceedings cannot be properly reflecting in appeal after a trial, 

warranting mandamus relief. In re Brokers Logistics, Ltd., 320 S.W.3d 402, 409 

(Tex. App.--El Paso 2010, no pet.). As a result, mandamus relief is appropriate 

herein. See, e.g., In re Greyhound Lines, Inc., 2014 WL 1022329 at 4 (Tex. App.--

Dallas 2014, no pet.)

The clear need for mandamus relief is further show by the trial court’s 

conduct. As initially pointed out, General Contractor filed a motion for leave to 

file third party petition, but the trial court claimed no such motion was filed. But 

more importantly, at the initial hearing on the motion to transfer venue, the trial 

court specifically stated that if General Contractor joined School District as a party, 

the entire case would be transferred to Brooks County. Exh. E, p. 15. When 

confronted with such ruling, the trial court blithely ignored such ruling. Exh. J-1. 

A trial court is not free to blithely ignore its prior order. Mercedes-Benz Credit 

Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).

CONCLUSION AND PRAYER

Brooks County is clearly the appropriate forum for this lawsuit. The 

building in question was built there, and any defective performance or extra work 
25

occurred there. Likewise, the contracts in this matter required lawsuits to be 

adjudicated in Brooks County, and the School District is statutory entitled to venue 

in Brooks County. In light of both the applicable facts and law, along with the 

prior history of this litigation, the trial court’s orders herein compound the previous

questionable rulings, ruling designed to maintain venue in an improper forum.

WHEREFORE, PREMISES CONSIDERED, RIGNEY CONSTRUCTION & DEVELOPMENT, LLC, Relator in the above styled and numbered 

cause, respectfully prays that its Petition for Writ of Mandamus be GRANTED, 

that the order of severance be set aside, that this Court require this entire matter be 

transferred to Brooks County, and for all other and further relief, either at law or in 

equity, to which Relator shows itself justly entitled.

Respectfully submitted,

___/s/ John A. Rigney__________________

John A. Rigney, State Bar Number: 24089356

4712 N. McColl Road, McAllen, Texas 78504

Tel. (956) 638-6421; Fax. (956) 618-2218

Email: RigneyLaw@aol.com

CERTIFICATION

 

This is to certify that I have reviewed the above and foregoing petition. 

Each and every factual statement contained therein is true and correct. The factual 

statements are supported by the competent evidence, which are included in the 

exhibits attached to this petition. Furthermore, I hereby certify that all exhibits 

attached hereto are true and correct copies of the original.

___/s/ John A. Rigney_________________
26

John A. Rigney, Attorney at Law

CERTIFICATE OF NO EVIDENCE

 

This is to certify that no evidence was presented in support of the motion to 

strike and motion for severance, which form the basis of this mandamus 

proceeding.

___/s/ John A. Rigney_________________

John A. Rigney, Attorney at Law

CERTIFICATE OF COMPLIANCE

This is to certify that the above and foregoing document was generated 

utilizing Word 2007, with 14 point font (12 point for footnotes) and contains 5779

words. 

___/s/ John A. Rigney__________________

John A. Rigney, Attorney at Law

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been served electronically 

and/or by facsimile transmission on the following, in accordance with TRAP 6.3, 

to-wit:

Carlos A. Balido, 10440 North Central Expressway

Meadow Park Tower, Suite 1500 Dallas, TX. 75231

Ph. (214) 749-4805 Fax (214) 760-1670 Email: carlos.balido@wbclawfirm.com

Jaime Garcia, 216 W. Village Blvd., Ste. 202

Laredo, TX 78041

Ph. (956) 717-1300 Fax (956) 717-0539 Email: jgarcia@jca-law.com

Judge Dan Moore, 100 E. Tyler

Suite 207

Athens, TX 75751

___/s/ John A. Rigney__________________

John A. Rigney, Attorney at Law