Necessity and Nature of Venue in Texas Civil Litigation–Texas Civil Litigation Attorneys

Court of Appeals of Texas,Dallas.
Rutilio Ignacio VELASCO, Individually and a/n/f
Josue Velasco, A Minor, Erick Velasco, A Minor,
and Steven Velasco, A Minor, and as Representative
of The Estate of Gloria Oviedo Velasco, Appellant
v.
TEXAS KENWORTH COMPANY, Texas Kenworth
Company d/b/a MHC Kenworth-Dallas,
Texas Kenworth Company d/b/a MHC Kenworth-
Fort Worth, Texas Kenworth Company d/b/a Texas
Kenworth Co. Dallas, Texas Kenworth Company d/
b/a Texas Kenworth Co. Fort Worth, Texas Kenworth
Corporation and Mark Sims, Appellees.
No. 05-03-01160-CV.
Aug. 17, 2004.
Rehearing Overruled Sept. 30, 2004.
Background: Husband of driver killed in accident,
individually, as representative of driver’s estate, and
on behalf of minor children, brought wrongfuldeath
action against manufacturer of tractor involved
in accident, and against individual. After
transfer of venue from county where accident occurred,
the 192nd Judicial District Court, Dallas
County, Merrill Hartman, J., granted summary
judgment for defendants. Husband appealed.
Holding: The Court of Appeals, Joseph B. Morris,
J., held that venue lay in county where accident occurred.
Vacated and remanded.
West Headnotes
[1] Venue 401 8.2
401 Venue
401I Nature or Subject of Action
401k8 Actions for Torts
401k8.2 k. Particular Torts. Most Cited
Cases
Pursuant to venue statute, venue for wrongful-death
case brought by husband of driver killed in multivehicle
accident lay in county where accident occurred,
where driver died, where bid for tractor involved
in accident was submitted and opened by
county authorities, and where individual defendant
talked to county authorities. V.T.C.A., Civil Practice
& Remedies Code § 15.002(a)(1).
[2] Venue 401 1.5
401 Venue
401I Nature or Subject of Action
401k1.5 k. Nature and Necessity of Venue in
Action. Most Cited Cases
A plaintiff has the first choice to fix venue in a
proper county. V.T.C.A., Civil Practice & Remedies
Code § 15.002(a)(1).
[3] Appeal and Error 30 1043(8)
30 Appeal and Error
30XVI Review
30XVI(J) Harmless Error
30XVI(J)6 Interlocutory and Preliminary
Proceedings
30k1043 Interlocutory Proceedings
30k1043(8) k. Objections to Venue
and Motions for Change of Venue. Most Cited
Cases
It is reversible error to transfer venue from a proper
venue, even if the county of transfer would have
been proper if originally chosen by the plaintiff.
V.T.C.A., Civil Practice & Remedies Code §
15.002(a)(1).
[4] Appeal and Error 30 840(1)
30 Appeal and Error
30XVI Review
30XVI(A) Scope, Standards, and Extent, in
General
30k838 Questions Considered
30k840 Review of Specific Questions
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and Particular Decisions
30k840(1) k. In General. Most
Cited Cases
To determine whether a trial court improperly
transferred venue in a case, an appellate court must
consider the entire record, including any trial on the
merits. V.T.C.A., Civil Practice & Remedies Code
§ 15.002(a)(1).
[5] Venue 401 33
401 Venue
401III Change of Venue or Place of Trial
401k33 k. Power and Duty of Court in General.
Most Cited Cases
If there is any probative evidence that supports venue
in the county of suit, the trial court must deny a
transfer; this is true even if the evidence preponderates
to the contrary. V.T.C.A., Civil Practice &
Remedies Code § 15.002(a)(1).
[6] Venue 401 2
401 Venue
401I Nature or Subject of Action
401k2 k. Place in Which Action May Be
Brought or Tried in General. Most Cited Cases
Venue statute limits the number of counties where
venue can be maintained to those with a substantial
connection with the lawsuit. V.T.C.A., Civil Practice
& Remedies Code § 15.002(a)(1).
*632 M. Kevin Queenan, Queenan Law Firm, P.C.,
DeSoto, for Appellant.
*633 James L. Williams, Williams, Peters &
Parmelee, P.C., and Carolyn Mitchell, Law Office
of Carolyn Mitchel, Fort Worth, for Appellee.
Before Justices MORRIS and
WHITTINGTON.FN1
FN1. The Honorable Tom James, Retired,
Court of Appeals, Fifth District of Texas at
Dallas, was a member of the panel at the
time this case was argued and submitted
for decision. Due to his retirement from
the Court, Justice James did not participate
in the issuance of this opinion.
SeeTEX.R.APP. P. 41.1(a) & (b).
OPINION
Opinion by Justice MORRIS.
In this wrongful death case, appellant Rutilio Ignacio
Velasco, individually and as next friend to
Josue Velasco, a minor, Erick Velasco, a minor,
and Steven Velasco, a minor, and as Representative
of the Estate of Gloria Oviedo Velasco, appeals the
trial court’s final judgment dismissing his claims
with prejudice. On appeal, appellant makes three
general arguments: first, he asserts his case was improperly
transferred from Johnson County to Dallas
County; second, he claims the Johnson County trial
court erred in granting summary judgment to appellee
Mark Sims; and third, he contends the Dallas
County trial court erred in denying his motion for a
continuance and granting summary judgment to appellees
Texas Kenworth Company, Texas Kenworth
Company d/b/a MHC Kenworth-Dallas, Texas Kenworth
Company d/b/a MHC Kenworth-Fort Worth,
Texas Kenworth Company d/b/a Texas Kenworth
Co. Dallas, Texas Kenworth Company d/b/a Texas
Kenworth Co. Fort Worth and Texas Kenworth
Corporation. Because we conclude appellant’s case
was transferred to Dallas County in error, we vacate
the Dallas County trial court’s final summary judgment
and remand the case to that court for transfer
back to the trial court in Johnson County.
Appellant filed this lawsuit after his wife died in a
multi-vehicle collision in Johnson County, Texas.
In his petition, appellant alleged that a used Kenworth
semi-tractor purchased by Johnson County
from the Kenworth appellees shortly before the accident
had faulty brakes and was a proximate cause
of the collision. Appellant asserted claims for negligence,
strict liability, breach of warranty, and misrepresentation.
FN2 Kenworth filed an answer
denying each allegation in appellant’s petition and
filed a motion to transfer the case from Johnson
County to Dallas County. Appellant amended his
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petition to include Mark Sims as defendant. Appellant
asserted venue was proper in Johnson County
because it is the location where a substantial part of
the events or omissions giving rise to his claims occurred
and because appellee Mark Sims resided in
Johnson County. Sims moved for and was granted
summary judgment. The trial court then granted
Kenworth’s motion to transfer appellant’s lawsuit to
Dallas County. In Dallas, Kenworth filed a traditional
and a no-evidence motion for summary judgment.
The trial court granted summary judgment in
Kenworth’s favor and rendered a final judgment incorporating
all of the previous interlocutory orders.
It is from this judgment that appellant appeals.
FN2. Appellant also asserted claims
against the previous owners of the vehicle,
Unimin Corporation and Unimin Texas
Company, L.P. The Unimin defendants
were granted summary judgment by the
Johnson County trial court.
[1][2][3][4][5] In his first point of error, appellant
complains about the trial court’s order transferring
his lawsuit from Johnson *634 County to Dallas
County.FN3 Texas venue law is well-established.
The plaintiff has the first choice to fix venue in a
proper county. See Wilson v. Texas Parks & Wildlife
Dept., 886 S.W.2d 259, 261 (Tex.1994). It is reversible
error to transfer venue from a proper venue
even if the county of transfer would have been
proper if originally chosen by the plaintiff. See id.
at 262. To determine whether a trial court improperly
transferred the case, we must consider the entire
record, including any trial on the merits. Ruiz
v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex.1993).
If there is any probative evidence that supports venue
in the county of suit, the trial court must deny
the transfer. Bonham State Bank v. Beadle, 907
S.W.2d 465, 471 (Tex.1995). This is true even if
the evidence preponderates to the contrary. Id.
FN3. In addition to opposing the trial
court’s transfer order on the merits, appellant
also claims that Kenworth waived the
venue issue by “waiting almost a year to
seek a hearing on its motion.” Because appellant
has provided no argument or authority
to support this contention, appellant
does not present the issue for review.
SeeTEX.R.APP. P. 38.1(h).
[6] In the case before us, appellant relies on section
15.002(a)(1) of the Texas Civil Practices and Remedies
Code to establish venue in Johnson County.
This section provides that venue is proper in the
county where “all or a substantial part of the events
or omissions giving rise to the claim occurred.”
TEX. CIV. PRAC. & REM.CODE ANN. §
15.002(a)(1) (Vernon 2002). This provision limits
the number of counties where venue can be maintained
to those with a substantial connection with
the lawsuit. Chiriboga v. State Farm Mut. Auto. Ins.
Co., 96 S.W.3d 673, 681 (Tex.App.-Austin 2003,
no pet.). Appellant’s factual basis for maintaining
venue in Johnson County is that Johnson County is
where the accident occurred, where appellant’s wife
died, where the bid for the semi-tractor was submitted
and opened by Johnson County representatives,
and where Sims talked to Johnson County representatives
about the semi-tractor. Thus, appellant
contends, Johnson County became the site for a
substantial part of the facts giving rise to his
claims. We agree.
Appellant’s wrongful death claim arose when his
wife died in the accident in Johnson County. See
Ray v. Farris, 887 S.W.2d 164, 166
(Tex.App.-Texarkana 1994,rev’d on other
grounds, 895 S.W.2d 351 (Tex.1995)). Additionally,
appellant’s petition complains about the failure
of Kenworth to inform or warn Johnson County
about the dangerous condition of the semi-tractor,
the breach of various warranties contained in the
bid proposal, and misrepresentations made to Johnson
County with respect to the character or quality
of the semi-tractor. Appellant complains that these
omissions or acts occurred at the time the bid was
delivered to Johnson County representatives in
Johnson County. Because a substantial number of
the essential facts upon which appellant’s claims are
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based occurred in Johnson County, we conclude
venue was proper in Johnson County.
Conceding that there is no dispute that appellant’s
claim arose when the accident occurred in Johnson
County, Kenworth argues that for purposes of a
venue analysis under subsection (a)(1), we must focus
solely on the defendant’s action or inaction giving
rise to appellant’s claims. Specifically, Kenworth
asserts that because appellant’s petition alleges
that it failed to properly repair, service, or inspect
the brakes on the semi-tractor, Tarrant County
is the proper venue under subsection (a)(1) because
that is where these alleged acts or omissions occurred.
FN4 Initially, we *635 note that there is no
indication that the present venue statute contemplates
only one county can satisfy the requirements
of subsection (a)(1). Indeed at least one appellate
court has concluded more than one county may
qualify as proper venue under subsection (a)(1)
provided a “substantial part of the event or omissions”
giving rise to the claim occurred there. See
Southern County Mut. Ins. Co. v. Ochoa, 19
S.W.3d 452, 458 (Tex.App.-Corpus Christi 2000).
Therefore, to succeed on its motion to transfer,
Kenworth had to establish that no substantial part
of the events giving rise to appellant’s claims occurred
in Johnson County, not merely that a substantial
part of the events or omissions occurred in
another county. Kenworth has failed to do so. Even
assuming that Tarrant County qualified as a county
where a substantial part of the events or omissions
giving rise to appellant’s cause of action occurred,
there was probative evidence that Johnson County
also satisfied subsection (a)(1)’s requirements. Accordingly,
the trial court erred in transferring the
case from Johnson County.
FN4. Although Kenworth argued in the trial
court that the appropriate venue under
subsection (a)(1) was Tarrant County,
Kenworth requested the trial court to transfer
the case to Dallas County under subsection
(a)(3) because that is where its principal
place of business is located.
Although our research has revealed no Texas case
directly on point, we find support for our conclusion
in several federal cases. Because subsection
(a)(1) appears to have been patterned after a federal
venue statute, we may presume the legislature intended
to adopt the construction placed on that
wording by the federal courts and look to federal
cases to guide our interpretation of the state
statute.FN5 See id at 457. The ninth circuit has
reasoned that because the harm a plaintiff experienced
occurred in Nevada, venue was proper there
as the location where a substantial part of the
events and omission giving rise to the claim occurred.
See Myers v. Bennett Law Offices, 238
F.3d 1068, 1075 (9th Cir.2001). In product liability
cases against manufacturers, other courts have
stated the accident or crash constituted a substantial
part of the events giving rise to the claim such that
venue is appropriate where the crash or accident occurred.
Cali v. E. Coast Aviation Serv., Ltd., 178
F.Supp.2d 276, 282 (E.D.N.Y.2001) (venue proper
where airplane crashed); Roll v. Tracor, Inc., 26
F.Supp.2d 482, 485 (W.D.N.Y.1998) (venue proper
where accident occurred); and Dwyer v. Gen. Motors
Corp., 853 F.Supp. 690, 692 (S.D.N.Y.1994).
Contrary to Kenworth’s position, federal courts
have interpreted the subsection (a)(1)’s federal
counterpart to allow venue in a district where acts
or omissions closely related to the legal action occurred,
even if none of those acts or omissions were
the act or omission that allegedly caused the injury.
See e.g., Ciena Corp. v. Jarrard, 203 F.3d 312,
315-16 (4th Cir.2000).
FN5. The federal statute provides venue in
a diversity action may be placed in “a judicial
district in which a substantial part of
the events or omission giving rise to the
claim occurred.” 28 U.S.C. § 1391(a)(2).
Because the accident, appellant’s wife’s death, and
other events of which appellant complains occurred
in Johnson County, we conclude that Johnson
County has a close connection to this lawsuit and
that the requirements of subsection (a)(1) have been
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satisfied. We therefore sustain appellant’s first point
of error. Because our determination on the venue
question is dispositive, we do not address appellant’s
remaining points of error. SeeTEX.R.APP. P.
47.1.
We vacate the judgment of the trial court and remand
this case to the trial *636 court for transfer to
the Johnson County trial court for further proceedings
consistent with this opinion.
Tex.App.-Dallas,2004.
Velasco v. Texas Kentworth Co.
144 S.W.3d 632
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