in Re Medical Carbon Research Institue, L.L.C. and Jack C. Bokros, PH.D. ( 2008 )

Petition for Writ of Mandamus Denied and Memorandum Opinion filed January 29, 2008

Petition for Writ of Mandamus Denied and Memorandum Opinion filed January 29, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00935-CV

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IN RE MEDICAL CARBON RESEARCH INSTITUTE, L.L.C., and JACK C.  BOKROS, PH.D., Relators

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

M E M O R A N D U M   O P I N I O N

On November 5, 2007, relators Medical Carbon Research Institute, L.L.C. (AMCRI@), and Jack C. Bokros, Ph. D., filed a petition for writ of mandamus in this court.  See Tex. Gov=t Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.  In the petition, MCRI and Bokros complain of the Honorable Ben Hardin=s, presiding judge of the 23rd District Court, Brazoria County, failure to rule on their (1) motion to reconsider order denying their motion to transfer venue, and (2) motion to dismiss for lack of subject matter jurisdiction pursuant to forum selection provision to permit real party in interest, Michael M. Phillips, to re-filing in a court in Travis County.

On April 26, 2005, Phillips filed suit against MCRI and Bokros in Brazoria County for breach of contract and fraud in connection with a settlement agreement.  On May 27, 2005, MCRI and Bokros filed a motion to transfer venue, or alternatively, motion to dismiss for lack of jurisdiction, and answer subject to those motions.  MCRI and Bokros sought to transfer venue to Travis County under the venue provisions of Chapter 15 of the Texas Civil Practice and Remedies Code.  See Tex. Civ. Prac. & Rem. Code Ann. '' 15.001, et seq. (Vernon 2002 & Supp. 2007) (providing rules for determining proper venue).  On May 1, 2006, the trial court held a hearing on MCRI and Bokros= motion to transfer venue, and, on February 20, 2007, denied the motion.  On June 15, 2007, MCRI and Bokros filed a motion to reconsider denial of the motion to transfer venue and dismiss for lack of jurisdiction pursuant a forum selection provision.  At a November 1, 2007 status conference, respondent stated he had already ruled on the venue issues and would not rule on the motion to reconsider. 

MCRI and Bokros maintain that the governing agreement contains a forum selection clause mandating that any claims would be litigated in Travis County.  The clause at issue states, in relevant part: AThe parties agree that, except as otherwise provided in the Act, any Claims shall be decided exclusively by and in the state or federal courts sitting in Travis County, Texas, which courts shall have subject matter jurisdiction over all Claims.@  AForum@ relates to the jurisdiction, generally a nation or State, where suit may be brought.  Liu v. CiCi Enters., LP, No. 14-05-00827-CV, 2007 WL 43816, at *2 (Tex. App.CHouston [14th Dist.] Jan. 9, 2007, no pet.) (mem. op.).  AVenue,@ on the other hand, generally refers to a particular county or a particular court. Gordon v. Jones, 196 S.W.3d 376, 383 (Tex. App.CHouston [1st Dist.] 2006, no pet.); see also Liu, 2007 WL 43816, at *29 (stating that venue concerns the geographic location within the forum where the case may be tried).  We conclude this provision is a venue selection clause, not a forum selection clause, because it refers to the county where suit should be brought. 

The venue selection clause is subject to Rule 87(5) of the Texas Rules of Civil Procedure, which generally does not permit reconsideration of the denial of a motion to transfer venue. Tex. R. App. P. 87(5).  Thus, a trial court has the authority to make only one venue determination.  Van Es v. Frazier, 230 S.W.3d 770, 775 (Tex. App.CWaco 2007, pet. denied); Dorchester Master Ltd. P=ship v. Anthony, 734 S.W.2d 151, 152 (Tex. App.CHouston [1st Dist.] 1987, orig. proceeding). 

Because any reconsideration of respondent=s order denying the motion to transfer venue would have been void, respondent did not abuse his discretion in not ruling on MCRI and Bokros= motion for reconsideration of venue.  MCRI and Bokros have not established their entitlement to the extraordinary relief of a writ of mandamus.  Accordingly, we deny MCRI and Bokros= petition for writ of mandamus.  We further deny MCRI and Bokros= motion to supplement the record as moot. 

PER CURIAM

Petition Denied and Memorandum Opinion filed January 29, 2008.

Panel consists of Chief Justice Hedges and Justices Anderson and Boyce.