in Re: Keith Ross ( 2018 )

Denied and Opinion Filed December 20, 2018
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01052-CV
IN RE KEITH ROSS, Relator
Original Proceeding from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-03754
MEMORANDUM OPINION
Before Justices Lang, Myers, and Whitehill
Opinion by Justice Lang
In this original proceeding, relator alleges the trial court abused its discretion by denying
his motion to transfer venue to Harris County under the mandatory venue provision of section
65.023(a) of the Texas Civil Practice and Remedies Code. Relator seeks a writ of mandamus
directing the trial court to vacate its order denying relator’s motion to transfer venue and to enter
an order granting the motion and transferring the case to Harris County. We stayed the underlying
proceedings and requested responses from the real party in interest and respondent. After
reviewing the petition, response, reply and mandamus record, we conclude relator is not entitled
to the relief requested and deny the petition.
Mandamus relief is the proper remedy to enforce a mandatory venue provision when the
trial court has denied a motion to transfer venue. In re Lopez, 372 S.W.3d 174, 176–77 (Tex.
2012) (citing In re Cont’l Airlines, Inc., 988 S.W.2d 733, 735 (Tex. 1998) (orig. proceeding); TEX.
CIV. PRAC. & REM. CODE § 15.0642). Ordinarily, mandamus relief is proper when the trial court
has abused its discretion and a party has no appellate remedy. In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). “However, where a party seeks to enforce a
mandatory venue provision a party is only required to show that the trial court clearly abused its
discretion by failing to transfer the case and is not required to prove that it lacks an adequate
appellate remedy.” In re Lopez, 372 S.W.3d at 176–77.
Section 65.023 applies to suits “in which the relief sought is purely or primarily injunctive”
and provides for mandatory venue in the county in which the parties sought to be enjoined reside.
TEX. CIV. PRAC. & REM. CODE ANN. § 65.023(a) (writs of injunction against a Texas resident “shall
be tried in a district or county court in the county in which the party is domiciled”); In re Cont’l
Airlines, 988 S.W.2d 733, 736 (Tex. 1998) (orig. proceeding); In re Ameri-Fab, LLC, No. 05-17-
01458-CV, 2018 WL 739791, at *2 (Tex. App.—Dallas Feb. 7, 2018, orig. proceeding) (mem.
op.); In re FPWP GP LLC, No. 05-16-01145-CV, 2017 WL 461355, at *1 (Tex. App.—Dallas
Jan. 25, 2017, orig. proceeding) (mem. op.). Section 65.023 does not apply, however, when the
injunctive relief is ancillary to the other relief sought. In re Ameri-Fab, LLC, at *2 (citing In re
FPWP GP LLC, 2017 WL 461355, at *2–3).
Here, the parties dispute whether the primary purpose of the lawsuit is injunctive. Real
party in interest Southwest Risk, LP sued relator and a co-defendant for allegedly breaching their
employment agreements with Southwest and allegedly misappropriating Southwest’s confidential
and proprietary information and trade secrets. Southwest also seeks a permanent injunction.
Relator maintains that section 65.023 mandates venue in Harris County because Southwest seeks
a permanent injunction and relies on the following from this Court’s opinion in In re FPWP to
support that argument:
On the other hand, a request for injunctive relief is the primary or principal relief
sought, and section 65.023 therefore governs venue, when the plaintiff
specifically pleads for permanent injunctive relief, when the plaintiff seeks only
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declaratory and injunctive relief that are essentially mirror image claims, and/or the
claims cannot be resolved solely as a declaratory judgment.
In re FPWP GP LLC, 2017 WL 461355, at * 3 (emphasis provided by relator) (citing In re Daniel,
No. 12–06–00232–CV, 2006 WL 2361350, at * 3 (Tex. App.—Tyler Aug. 16, 2006, orig.
proceeding) (mem. op.) (citing In re Cont’l Airlines, 988 S.W.2d at 736)); see also In re Ameri-
Fab, 2018 WL 739791, at *2 (citing the above quote as part of discussion of applicable law).
Relator does not, however, argue that the purpose of this suit is purely or primarily injunctive.
Rather, relator relies on In re FPWP for the proposition that if a party pleads for a permanent
injunction, then the case falls under section 65.023 and venue is governed by that statute.
Southwest, in contrast, maintains that the injunctive relief sought is ancillary to its claims for
damages caused by relator’s and his co-defendant’s breach of their employment agreements and
misappropriation of Southwest’s trade secrets and confidential and proprietary information. We
agree with Southwest.
When a party seeks a permanent injunction as well as other relief, a court must review the
pleadings and relief sought to determine the applicability of section 65.023. See Shuttleworth v.
G & A Outsourcing, Inc., No. 01-08-00650-CV, 2009 WL 277052, at * 3 (Tex. App.—Houston
[1st Dist.] Feb. 5, 2009, no pet.) (mem. op.); see also Hogg v. Prof’l Pathology Assocs., P.A., 598
S.W.2d 328, 330 (Tex. App.—Houston [14th Dist.] 1980, writ dism’d). The inclusion of a request
for permanent injunction as one of multiple requests for relief is not alone sufficient to require
application of section 65.023. Here, the pleadings show that Southwest seeks substantial damages
against relator and seeks injunctive relief to prevent future violations of the employment
agreement. Further, the claims for monetary damages are not mirror images of the claims for
injunctive relief. Under this record, we conclude the injunctive relief is ancillary to and in support
of Southwest’s desire for compensation from relator’s alleged wrongdoing and for prevention of
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future wrongdoing. As such, section 65.023 does not apply and the trial court did not abuse its
discretion by denying relator’s motion to transfer venue.
Accordingly, we deny relator’s petition for writ of mandamus. See TEX. R. APP. P. 52.8(a)
(the court must deny the petition if the court determines relator is not entitled to the relief sought).
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
181052F.P05
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