Venue Selection for Real Estate Disputes -- WHERE should a real estate lawsuit be filed and heard?

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

Sometimes, one of the most determinative factors in the ultimate outcome of a legal dispute can be venue. In plain terms, venue is the county of suit. Implicit in venue is the concept that the county of suit is the location within which a Judge and/or jury will hear the evidence, conduct the trial, and determine the outcome of a lawsuit. 

While justice may be said to be blind, any astute observer can see that there are significant differences in various communities' idea of "justice."  Some counties are far more liberal or conservative than others, and these attitudes are reflected in the approach of Judges (who are elected by voters in the community) and jurors charged with deciding who wins a lawsuit.

Some Texas counties are known for being staunchly Plaintiff-oriented, while others seem to almost always favor Defendants. Of course, these are generalizations, but like most stereotypes, a given County's venue reputation generally finds its origins in historical fact.  

While juror predilections  in various Counties are usually of much more concern in injury cases, venue is also important in lawsuits concerning real estate. In fact, the Texas Legislature deemed the location for lawsuits concerning real  property to be so vital, that a specific law  governing the county (venue) in which such suits must be filed:

Tex.Civ. Prac. & Rem. Code § 15.011. LAND.   

Actions for recovery of real property or an estate or interest in real property, for partition of real property, to remove encumbrances from the title to real property, for recovery of damages to real property, or to quiet title to real property shall be brought in the county in which all or a part of the property is located.

The foregoing statute is what is referred to as a "mandatory" venue rule. However, the mandatory nature of the statute does not always mean that a real estate lawsuit will be filed in the proper county.

As the party filing a lawsuit, the plaintiff chooses the venue where she files.  As the result of intentional  strategic effort to avoid the proper venue, or as by mistake, a Plaintiff might file the real estate suit in a county other than one where the land is located.  It is important  to understand that filing the suit in an improper county does not deprive the Courts of the improper county of jurisdiction (the ability to hear the dispute).

It is incumbent upon a Defendant served with a lawsuit related to real estate to determine whether the county of suit is proper (under either a "permissive" or "mandatory" venue rule located in Chapter 15 of the Texas Civil Practices and Remedies Code). Failure by the Defendant to IMMEDIATELY (prior to, or contemporaneously with, filing his Answer to the Plaintiff's lawsuit) raise an objection to a county of improper venue constitutes a waiver of any venue objection. See Tex.R.Civ.P. 86.

Venue for a lawsuit is not intended to confer a  strategic advantage upon either party, but reality dictates that venue can influence the value and/or outcome of a given lawsuit. Thus, the case law is full of cases chronicling venue disputes.  Texas courts are particularly sensitive to not allowing a lawsuit to proceed in a forum other than that which is proper because suits filed and maintained in improper counties promotes forum shopping attendant judicial inefficiency, waste of judicial resources, delays of adjudication of the merits, and skewing of settlement dynamics. See In re Lisa Laser USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010) (per curiam). 

In connection with venue, some basic principles are important to remember: 

• Venue questions/challenges are decided by the trial court, based on the facts existing at the time the Plaintiff's claims  accrued. 
• The trial court judge’s decision on a venue challenge must presume that all venue allegations properly pled in the Plaintiff’s petition are true, unless specifically denied in writing by another party
• A trial judge's venue decision may not be reviewed by an interlocutory appeal. However, when a trial court judge refuses to enforce a mandatory venue provision (including , Tex.Civ. Prac. & Rem. Code § 15.011, related to suits concerning land) a party may seek mandamus relief, thereunder an court of appeals ORDERS the trial court to transfer the case. See TEX. CIV. PRAC. & REM. CODE § 15.0642. 
• Once the Plaintiff has established proper venue against one Defendant, the same court also has venue over all Defendants in all claims arising out of the same facts or occurrence  
• If  (even after trial) a court of appeals determines that venue in the trial court was improper due to a mandatory venue provision (and that any objection to venue was not waived), failure of the trial court to transfer the case to a county of proper venue will constitute reversible error and may "undo' the entire trial and verdict.
• Venue/Forum Selection can be agreed upon in writing.  Such agreements are presumptively valid. In re Laibe Corp., 307 S.W.3d 314, 316 (Tex. 2010) (per curiam). Accordingly, mandamus is available if a trial court improperly refuses to enforce a forum selection clause. See Laibe Corp., 307 S.W.3d at 316; In re ADM Investor Servs., 304 S.W.3d 371, 374 (Tex. 2010). Further, mandamus relief is specifically authorized to enforce a statutory mandatory venue provision. 

If you have been served with a lawsuit arising from a real estate dispute, it is important to review whether venue is appropriate prior to making any filing with the court. You should consult a lawyer experienced with real estate lawsuits prior to filing an Answer or any other responsive pleading. Failure to do so may result in waiver of strategic benefits associated with transferring the case to a more appropriate or desirable county.