CAYCE, Chief Justice.
The question presented in this mandamus proceeding is whether the trial court abused its discretion in denying the City of Dallas's motion to transfer venue to Dallas County under the mandatory venue provision of section 65.023(a) of the Texas Civil Practice and Remedies Code. Specifically, we have been asked to decide whether the primary relief sought in the underlying suit filed by the City of Fort Worth is the issuance of a permanent injunction, which would require that the suit be tried in Dallas County, or the rendition of a declaratory judgment, which would allow the suit to be tried in Tarrant County. We hold that the primary relief sought by Fort Worth is declaratory, not injunctive, and that venue in Tarrant County is proper. Accordingly, we hold that the trial court did not abuse its discretion in denying the motion to transfer venue and we deny Dallas's petition for writ of mandamus.
In 1968, after years of conflict between the cities of Dallas and Fort Worth over airport development, the cities reached an agreement for the development of a new regional airport, DFW Airport. The city managers of Dallas and Fort Worth signed a "Contract and Agreement" (the Contract), effective April 15, 1968, and the city councils adopted a "1968 Regional Airport Concurrent Bond Ordinance" (the Joint Bond Ordinance), effective November 12, 1968.
Following the deregulation of the airline industry in 1978, Congress enacted the Wright Amendment, which dictated that passenger planes could fly from Love Field only to cities in Texas and four bordering states: New Mexico, Oklahoma, Arkansas, and Louisiana.
Both cities have repeatedly reaffirmed the 1968 agreement since its execution. In 1992, the Dallas and Fort Worth city councils enacted a joint resolution confirming their ongoing commitment to DFW Airport and to the covenants they made in the 1968 agreement. As recently as last year, the cities passed the "Twenty Ninth Supplemental Regional Airport Concurrent Bond Ordinance," authorizing the issuance of DFW Regional Airport joint revenue refunding bonds, one of the many supplemental bond ordinances the cities have passed over the past thirty years.
The relations between the two cities began to change, however, in October 1997, when Congress passed a bill called the Shelby Amendment. This legislation amended the Wright Amendment to allow turn-around passenger air travel from Love Field to three additional states: Kansas, Alabama, and Mississippi.
Soon after the passage of the Shelby Amendment, Dallas city officials took the public position that federal law mandates that Dallas expand Love Field service in accordance with the loosened restrictions of the Shelby Amendment and began to explore the possibility of expanding passenger air service out of Love Field. Anticipating that Dallas would eventually allow commercial flights outside the scope of the 1968 agreement, Fort Worth filed the underlying suit against Dallas, naming the Dallas/Fort Worth International Airport Board (the DFW Board) and Legend Airlines, Inc. (Legend), among others, as co-defendants.
The gravamen of Fort Worth's complaint is that Dallas continues to be bound by the 1968 agreement, notwithstanding the loosened flight restrictions for Love Field allowed by the Shelby Amendment. Fort Worth requests a declaratory judgment under the Uniform Declaratory Judgments Act (the Declaratory Judgments Act)
On October 31, 1997, Dallas and Legend each moved to transfer venue of the underlying suit to Dallas County. Among the grounds asserted for changing venue, Dallas and Legend contended that Fort Worth's suit is primarily a request for a permanent injunction, and not for a declaratory judgment. Therefore, Dallas and Legend asserted the case is governed by section 65.023(a) of the Texas Civil Practice and Remedies Code,
In May 1998, Continental Airlines, Inc. and Continental Express, Inc. (collectively, Continental) announced that Continental would begin scheduled interstate passenger service between Love Field and Cleveland, Ohio on July 1, 1998. In an apparent reaction to this announcement, Fort Worth amended its pleadings to name Continental as a defendant to the suit.
On June 15, 1998, Fort Worth applied for a temporary restraining order (TRO) and a temporary injunction to prevent Continental from scheduling passenger flights between Love Field and Cleveland in contravention of the cities' 1968 agreement, until final resolution of the underlying lawsuit. After a four-day hearing that began on June 29, the trial court granted a temporary injunction against Continental.
Meanwhile, on June 19, 1998, a hearing was held on Dallas, Continental, and Legend's motions to transfer venue. The trial court denied the motions, and Continental and Legend filed separate petitions for writs of mandamus with this court.
Departing somewhat from its position in the trial court, Continental contended in this court that venue is mandatory in Harris County,
We write in this proceeding to address the merits of Dallas's petition because, unlike the temporary ancillary relief Fort Worth sought and obtained against Continental to preserve the status quo until the dispute below is resolved, the principal and primary relief Fort Worth seeks in the underlying suit is directly against Dallas;
STANDARD OF REVIEW
In deciding whether a writ of mandamus is appropriate, we recognize that mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy at law. See Republican Party v. Dietz, 940 S.W.2d 86, 88 (Tex.1997) (orig.proceeding). A trial court clearly abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. See Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig.proceeding). A trial court has no discretion in determining what the law is or in applying the law to the facts. See Walker, 827 S.W.2d at 840. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in mandamus. See id.
A defendant raises the question of proper venue by objecting to a plaintiff's venue choice through a motion to transfer venue. See TEX.R. CIV. P. 86; Wilson v. Texas Parks & Wildlife Dep't, 886 S.W.2d 259, 260 (Tex.1994). The fact that mandatory venue lies in another county provides one basis for a venue transfer. See TEX.R. CIV. P. 86(3)(b). If the plaintiff's chosen venue rests on a permissive venue statute and the defendant files a meritorious motion to transfer based on a mandatory venue provision, the trial court must grant the motion. See Wichita County v. Hart, 917 S.W.2d 779, 781 (Tex.1996); Langdeau v. Burke Inv. Co., 163 Tex. 526, 358 S.W.2d 553, 556 (1962). An erroneous denial of such a motion is reviewable by mandamus. See TEX. CIV. PRAC. & REM.CODE ANN. § 15.0642 (Vernon Supp. 1998). In such a situation, the relator does not have to show an inadequate remedy at law—only that the trial court erroneously refused to enforce a mandatory venue provision. See KJ Eastwood Inv., Inc. v. Enlow, 923 S.W.2d 255, 258 (Tex.App.—Fort Worth 1996, orig. proceeding).
MANDATORY VENUE UNDER SECTION 65.023(a)
Section 65.023 provides:
TEX. CIV. PRAC. & REM.CODE ANN. § 65.023(a) (Vernon 1997). The important right provided to a defendant under this statute to defend a suit for permanent injunction in the county of the defendant's domicile originated with our first state legislature in 1846, and it has been preserved since that time by all successive legislatures.
In determining whether a lawsuit constitutes a suit for permanent injunction for the purpose of determining proper venue, we only look to the express relief sought in the allegations and prayer of the plaintiff's petition. See Renwar Oil Corp. v. Lancaster, 154 Tex. 311, 276 S.W.2d 774, 775 (1955). When those pleadings show that the issuance of a permanent injunction is the primary and principal relief sought in the lawsuit, venue is mandatory in the county of the defendant's domicile. See Brown v. Gulf Television Co., 157 Tex. 607, 306 S.W.2d 706, 708 (1957) (construing the predecessor statute to section 65.023(a)); Guion v. Gibson, 439 S.W.2d 715, 716 (Tex.Civ.App.—Houston [14th Dist.] 1969, no writ). On the other hand, if a review of the allegations and the prayer in the plaintiff's petition shows that issuance of a permanent injunction would be merely ancillary to a judgment awarding declaratory relief, the requirement that the suit be brought in the county of the defendant's domicile does not apply. See Brown, 306 S.W.2d at 708; Guion, 439 S.W.2d at 716.
INJUNCTIVE VS. DECLARATORY RELIEF
An injunction is coercive and equitable in nature. See Valley Oil Co. v. City of Garland, 499 S.W.2d 333, 335 (Tex.Civ. App.—Dallas 1973, no writ). The function of injunctive relief is to restrain motion and to enforce inaction. See Boston v. Garrison, 152 Tex. 253, 256 S.W.2d 67, 70 (1953); R.I.O. Sys., Inc. v. Union Carbide Corp., 780 S.W.2d 489, 493 (Tex.App.—Corpus Christi 1989, writ denied).
To be entitled to injunctive relief, a plaintiff must prove the existence of a wrongful act, imminent harm, irreparable injury, and the absence of an adequate legal remedy. See Morris v. Collins, 881 S.W.2d 138, 140 (Tex.App.—Houston [1st Dist.] 1994, writ denied). Fear or apprehension of the possibility of injury is not sufficient; the plaintiff must prove that the defendant has attempted or intends to harm the plaintiff in the future. See State v. Morales, 869 S.W.2d 941, 946-47 (Tex.1994); Frey v. DeCordova Bend Estates Owners Ass'n, 647 S.W.2d 246, 248 (Tex. 1983); Morris, 881 S.W.2d at 140.
In contrast, a declaratory judgment is one that simply declares the rights, status, or other legal relations of the parties without ordering anything to be done. See TEX. CIV. PRAC. & REM.CODE ANN. § 37.003(a), (b) (Vernon 1997) (trial court has "power to declare rights, status, and other legal relations whether or not further relief is or could be claimed," and the declaration "has the force and effect of a final judgment or decree"); Harris County Tax Assessor-Collector v. Reed, 210 S.W.2d 852, 854 (Tex.Civ. App.—Austin 1948, no writ) (holding that when party brings a declaratory judgment action, no relief other than declaratory judgment need be sought). The purpose of a declaratory judgment is to settle and to afford relief from uncertainty and insecurity with respect to these rights, statuses, and other legal relations. See TEX. CIV. PRAC. & REM.CODE ANN. § 37.002(b). Actual injury or harm is not a prerequisite to a declaratory judgment lawsuit; a trial court may construe a contract in a declaratory judgment action before a breach occurs. See id. § 37.004(b); Hasty, Inc. v. Inwood Buckhorn Joint Venture, 908 S.W.2d 494, 499 (Tex.App.—Dallas 1995, writ denied).
The law presumes that the defendant will recognize and respect the rights declared by a declaratory judgment and will abide by the judgment in carrying out its duties. See Valley Oil Co., 499 S.W.2d at 335-36. However, ancillary injunctive relief may be obtained when the evidence shows that the defendant will not comply with the judgment. See Texas Education Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994); Commissioners' Court v. Rayburn, 264 S.W.2d 552, 555 (Tex.Civ.App.—Beaumont 1954, no writ). The Declaratory Judgments Act itself expressly authorizes a party to obtain supplemental ancillary relief, including a permanent injunction, to enforce a declaratory judgment. See Valley Oil Co., 499 S.W.2d at 336 (holding that declaratory judgment does not bar subsequent proceeding for coercive relief to enforce rights established by judgment where losing party contravenes judgment); see also TEX. CIV. PRAC. & REM. CODE ANN. § 37.011 ("Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application must be by petition to a court having jurisdiction to grant the relief.").
FORT WORTH'S PETITION ONLY REQUESTS DECLARATORY RELIEF
Dallas contends that the language in Fort Worth's prayer asking the trial court to declare that Dallas is "prohibited, under the Contract and the Joint Bond Ordinance" from expanding commercial flights to and from Love Field, when read in the context of other language in the body of Fort Worth's petition, compels us to find that the primary relief sought by Fort Worth against Dallas is a permanent injunction. We disagree. None of the cited language, either standing alone or combined with other allegations in Fort Worth's petition, supports a finding that Fort Worth's suit against Dallas is primarily injunctive in nature.
Nowhere in its petition or prayer for relief does Fort Worth request that the trial court order Dallas, or any other defendant, to do
Dallas also singles out two phrases in the 24-page body of the petition as proof that Fort Worth is primarily seeking to enjoin Dallas—"irreparable harm is imminent" and "the status quo will be changed." Dallas's reliance on this language is misplaced. First, when read in context, it is clear that the phrase "irreparable harm is imminent" was inserted in the petition merely to introduce a series of paragraphs explaining why Fort Worth believes it is necessary to sue Dallas for a declaratory judgment. These allegations properly advise the trial court that the controversy is ripe for adjudication.
Finally, Dallas asserts that Fort Worth's suit is merely a well-masked request for a permanent injunction and urges us to look beyond the live pleadings to divine another motive and intent for this suit that is not found in the pleadings. We refuse to engage in such speculation.
The primary relief Fort Worth seeks against Dallas is declaratory in nature, not injunctive. The fact that a declaratory judgment
Because we hold that the primary relief sought in Fort Worth's suit is a declaratory judgment, section 65.023 of the Texas Civil Practice and Remedies Code does not apply. Accordingly, we hold that the trial court did not abuse its discretion in denying Dallas's motion to transfer venue, and we deny the relief requested in Dallas's petition for writ of mandamus.
After we denied Continental's and Legend's requests for mandamus relief, both parties filed mandamus proceedings in the Supreme Court of Texas. The supreme court has set those petitions for oral argument on September 9, 1998.