Hyundai Motor Company; Hyundai Motor America, Inc.; and Port City Hyundai, Inc. v. Mario Alvarado--Appeal from 229th Judicial District Court of Duval County

DISSENTING OPINION
No. 04-92-00387-CV
HYUNDAI MOTOR COMPANY; Hyundai Motor America, Inc.;
and Port City Hyundai, Inc.,
Appellants
v.
Mario Alvarado,
Appellee
From the 229th Judicial District Court, Duval County, Texas
Trial Court No. 14,492
Honorable Benjamin Euresti, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Dissenting opinion by: Bill J. Stephens, Justice(1)

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Bill J. Stephens, Justice

Delivered and Filed: November 25, 1998

I respectfully disagree with my colleague's treatment of Point of Error Number One, and accordingly I dissent.

The majority opinion believes the real issue to be whether "tag-along" venue is a legitimate method of acquiring venue, citing from Justice Michol O'Connor, et al., O'Connor's Texas Rules: Civil Trials 95 (1997):

This (the venue statute) permits a plaintiff to establish venue against a target defendant by first filing suit against a friendly defendant, who then will file a third party action against the target defendant.

and concluding that Polaris Inv. Management Corp. v. Abascal, 892 S.W.2d 860, 862 (Tex. 1995) supported that premise. The Polaris case was an appeal from the denial of mandamus by the Court of Appeals to force the trial court to change its venue ruling. The Supreme Court granted the writ and held that mandamus would not lie to challenge a venue decision. I do not read into this opinion that "tag-along" venue was approved by the Supreme Court.

I would further support my position in the following dissent by reliance on WTFO, Inc. v. Braithwaite, 899 S.W.2d 709, 714 (Tex. App.--Dallas 1995, no writ) which held:

When a motion to transfer venue is filed, the initial burden of proof that venue is maintainable in the county of suit is on the plaintiff. Tex. R. Civ. P. 87(2)(a). If the defendant specifically denies the venue facts, the plaintiff must support his pleadings by prima facie proof of the venue facts. Tex. R. Civ. P. 87(3)(a).... If the plaintiff fails in his burden, the defendant has the burden of showing that venue is maintainable in the county in which the transfer is sought under either a general, permissive, or mandatory venue rule. See Tex. Civ. Prac. & Rem. Code Ann. 15.001-.040 (Vernon 1986); Tex. R. Civ. P. 87(2)(a). If the defendant succeeds in that showing, the cause will be transferred to the appropriate county. Tex. R. Civ. P. 87(2)(a).

and Pearson v. Jones Co., Ltd., 898 S.W.2d 329 (Tex. App.--Eastland 1994, no writ) for the proposition that a reviewing court must review the entire record and determine whether there is any probative evidence that venue was proper in the county of trial.

POINT OF ERROR NUMBER ONE

The trial court's judgment must be reversed, because venue was improper in Duval County.

This case was first filed in Webb County, the county of the accident, and resulted in a final summary judgment in favor of Hyundai. That case was appealed to this court as Cause No. 04-91-00208-CV, styled Mario Alvarado, et al. v. Hyundai Motor Co., et al. On March 14, 1994, this court reversed and rendered the trial court's judgment.

After the summary judgment was granted in Webb County, this suit was filed in Duval County against Nueces County residents Vicente Reyes, for negligence, and Rita Padron, the owner of the car, for negligent entrustment. After Reyes and Padron answered without challenging venue, plaintiffs, on the same day, amended their pleadings to join the same Hyundai defendants named in the Webb County suit. The Hyundai defendants filed answers, subject however, to their motions to transfer venue to Webb County, Texas and to their pleas in abatement. Following a hearing on the motions to transfer venue to Webb County, the motions were denied. After denial of the motion to transfer venue, the Hyundai defendants filed cross-actions against Reyes and Padron.

VENUE

The Hyundai defendants' motions to transfer venue, which were timely filed in March, 1991, were heard by the Duval County district judge on May 1, 1991. These motions were denied by order signed July 24, 1991.

Venue was proper in either Webb County, Texas, where the accident occurred, or in the county where the defendants resided. Tex. Civ. Prac. & Rem. Code Ann. 15.001 (Vernon 1986).

On March 4, 1991, the plaintiffs filed the following Requests for Admissions in the case in Duval County, addressed to Reyes and Padron and their attorney of record:

1. Admit or deny that Rita Padron is a resident of Duval County, Texas.

2. Admit or deny that Vicente Reyes is a member and resident of the household of Rita Padron.

The record shows that plaintiff's attorney certified that true and correct copies of the Requests for Admissions to Reyes and Padron were forwarded to all counsel of record on the 1st day of March, 1991. Neither Reyes nor Padron filed answers to the Requests for Admissions.

The record further reveals that a copy of the Request for Admissions were served upon the attorney for Reyes and Padron on March 1, 1991, but the post office "green card" showing that the attorney for Reyes and Padron received such copy was not filed in the court records until November 17, 1992, a date after the Hyundai defendants' motions to transfer venue to Webb County had been denied.

The plaintiffs allege in their original petition (as well as in their trial petition) that:

Defendants Vicente Reyes and Rita Padron are residents of Duval County, Texas and can be served with citation by serving them at their residence located at 106 E. King, San Diego, Texas.(2)

Reyes and Padron state, in their answer to plaintiffs' original petition, that:

the allegations contained in Plaintiffs' Original Petition are generally untrue and demands their legal prerogative of requiring Plaintiffs to prove each and every allegation if they can.

Hyundai included in their motions to transfer venue from Duval County to Webb County, a specific denial that Reyes and Padron were Duval County residents. Further, there were attached to the motions, "true and correct" copies of the deposition of Armando Fuentes, taken on July 24, 1990 in the Webb County suit, which stated that venue was proper in Webb County, where the accident occurred.

Hyundai contends that the venue facts alleged in Plaintiffs' petition could no longer be taken as true after Hyundai's allegations in their motions to transfer venue that venue in Duval County was improper. Their allegations were:

1) the defendants Reyes and Padron do not reside in Duval County; 2) the alleged cause of action did not occur in Duval County; 3) there are no mandatory or permissive exceptions that authorized the maintenance of the action in Duval County; 4) specifically, the Hyundai's (sic) defendants denied that the defendants Reyes and Padron are residents of Duval County or that they were residents of Duval County when this action was instituted; 5) they alleged that the plaintiff's cause of action, if any, is founded upon an accident which occurred in Webb County, Texas; and 6) that if plaintiffs have a cause of action, it accrued in Webb County.

Plaintiffs responded to Hyundai's motion to transfer venue, claiming that venue was proper in Duval County, pursuant to section 15.001 of the Texas Civil Practice and Remedies Code since the defendants Reyes and Padron filed a general denial and did not challenge venue. They also claimed that venue was proper in Duval County as to the Hyundai defendants as a result of the third party action filed by Reyes and Padron against the Hyundai defendants pursuant to section 15.062 of the Texas Civil Practice and Remedies Code.

Tex. Civ. Prac. & Rem. Code Ann. 15.061 (Vernon 1986) provides:

When two or more parties are joined as defendants in the same action or two or more claims or causes of action are properly joined in one action and the court has venue of an action or claim against any one defendant, the court also has venue of all claims or action against all defendants unless one or more of the claims or causes of action is governed by one of the provisions of Subchapter B requiring transfer of the claim or cause of action, on proper objection, to the mandatory county.

Tex. Civ. Prac. & Rem. Code Ann. 15.062 (Vernon 1986) provides:

Venue of the main action shall establish venue of a counterclaim, cross claim, or third-party claim properly joined under the Texas Rules of Civil Procedure.

The Hyundai defendants argue that the failure of Reyes and Padron to file a motion to transfer venue merely waives the right to challenge venue and has no effect whatsoever on the rights of the Hyundai defendants to challenge venue of the action brought by the plaintiffs against them. With this argument, I agree.

Plaintiffs respond, claiming that venue in Duval County is proper because the Requests for Admissions sent to Reyes and Padron establish this fact. They further state that "because these requests were never answered, they were automatically deemed admitted." In their brief, they argue:

The evidence before the trial court at the time of its venue determination established without question that Reyes and Padron lived in Duval County, and therefore Duval County was a permissible choice for Alvarado pursuant to Tex. Civ. Prac. & Rem. Code 15.001 (Vernon 1986).

*********

Because the suit against Hyundai grew out of the same transaction as the suit against Reyes and Padron, and because the trial court had venue over the claims of Reyes and Padron, section 15.062 required that venue over the Hyundai claims be retained in Duval County.

Rules 86 and 87 of the Texas Rules of Civil Procedure govern motions to transfer venue. Tex. R. Civ. P. 86, 87. Rule 86 provides in relevant part that the motion to transfer venue shall state that the action should be transferred to another county of proper venue because "the county where the action is pending is not a proper county," and "the motion shall state the legal and factual basis for the transfer of the action" and further, "shall request transfer of the action to a specific county of mandatory or proper venue." The Hyundai defendants' motions to transfer venue from Duval County to Webb County meet the requirements of Rule 86.

Governing Law of Review

The standard of appellate review is governed by the following language of Tex. Civ. Prac. & Rem. Code Ann. 15.064 (Vernon 1986):

(b) On appeal from the trial on the merits, if venue was improper it shall in no event be harmless error. In determining whether venue was or was not proper, the appellate court shall consider the entire record, including the trial on the merits.

The plain language of 15.064(b) requires the appellate court to conduct an independent review of the entire record to determine whether venue was or was not proper in the county of suit. In deciding a venue issue, the Court of Appeals will conduct an independent review of the entire record, including the trial on the merits. Tex. Civ. Prac. & Rem. Code Ann. 15.064(b) (Vernon 1986); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757-58 (Tex. 1993).

On appeal, the issue is not whether the trial court properly determined the venue issue, but whether the venue as determined by the trial court is, in fact, proper or improper. If venue is improper, it is presumed to be harmful error, and the case will be reversed.

The language of Tex. R. Civ. P. 87 (3)(a) is particularly persuasive:

(a) Affidavit and Attachments. All venue facts, when properly pleaded, shall be taken as true unless specifically denied by the adverse party. When a venue fact is specifically denied, the party pleading the venue fact must make prima facie proof of that venue fact; provided, however, that no party shall ever be required for venue purposes to support by prima facie proof the existence of a cause of action or part thereof, and at the hearing the pleadings of the parties shall be taken as conclusive on the issues of existence of a cause of action. Prima facie proof is made when the venue facts are properly pleaded and an affidavit, and any duly proved attachments to the affidavit, are filed fully and specifically setting forth the facts supporting such pleading. Affidavits shall be made on personal knowledge, shall set forth specific facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify.

No party is required to prove the elements of his cause of action for the purpose of establishing venue; however, when the defendant specifically denies the venue allegations of the plaintiff, the latter is required to present prima facie proof of the venue facts. Tex. R. Civ. P. 87(3)(a); Conoco, Inc. v. Ruiz, 818 S.W.2d 118, 126-7 (Tex. App.--San Antonio 1991), aff'd, 868 S.W.2d 752 (Tex. 1993); Kimmell v. Loeffler, 791 S.W.2d 648, 653 (Tex. App.--San Antonio 1990, writ denied).

In the case at bar, the plaintiffs offered no evidence to establish that venue was proper in Duval County. Their response to the motions to transfer venue contained no affidavits or other proof of any kind; they simply argued that Reyes' and Padron's waiver of their right to contest venue "proved" venue facts against the Hyundai defendants, and that the "deemed admission" by Reyes and Padron proved venue as to them in Duval County. I disagree.

One party's waiver does not constitute "prima facie proof" against another party asserting venue rights under Tex. R. Civ. P. 87(3). If another party's waiver could substitute for proof of venue facts, the statutory goal of proper venue as set out in section 15.061 of the Texas Civil Practice and Remedies Code would be thwarted.

Admissions deemed admitted against one defendant cannot be used to establish residence for venue purposes as to another defendant in the same case when the other defendant challenges venue. See USX Corp. v. Salinas, 818 S.W.2d 473, 479 (Tex. App.--San Antonio 1991, writ denied). Furthermore, it is well settled that deemed admissions resulting from one defendant's failure to answer a request for admissions may not be imputed to another defendant in the same case, nor are they binding on the latter. Hardy v. DeLeon, 5 Tex. 211, 243 (1849); Texas Supply Center, Inc. v. Daon Corp., 641 S.W.2d 335, 338 (Tex. App.--Dallas 1982, writ ref'd n.r.e.); Carbonit Houston,Inc. v. Exchange Bank, 628 S.W.2d 826, 829 (Tex. App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.); Gonzales v. Blake, 605 S.W.2d 634, 636 (Tex. Civ. App.--Houston [1st Dist.] 1980, no writ); Grierson v. Sreenan, 560 S.W.2d 423, 425 (Tex. Civ. App.--Beaumont 1977, no writ); Bryant v. Kimmons, 430 S.W.2d 73, 76 (Tex. Civ. App.--Austin 1968, no writ).

In the case at bar, the Hyundai defendants filed motions to transfer venue to Webb County in which they alleged that venue was improper in Duval County. Their motions were supported by allegations and proof by way of affidavits that the plaintiffs' cause of action accrued in Webb County.

When a venue fact is specifically denied by a defendant, as it was here, the plaintiff, the party pleading the venue fact, must make prima facie proof of it. "Prima facie proof is made when the venue facts are properly pleaded and an affidavit, and any duly proved attachments to the affidavits, are filed fully and specifically setting forth the facts supporting such pleading." Tex. R. Civ. P. 87(3)(a).

As already noted, the plaintiffs offered no proof by affidavits, or otherwise, that the defendants Reyes and/or Padron were residents of Duval County when the suit was filed. Even though the Requests for Admissions were deemed admitted, that had no effect on the Hyundai defendant's motion to transfer venue. The Hyundai defendants sustained their burden to show that venue was proper in Webb County by filing affidavits and the duly attached excerpts from the Armando Fuentes' deposition which stated that the accident, made the basis of the suit, occurred in Webb County. The district court of Duval County, on the basis of the pleadings and affidavits before it, was required to transfer venue of the case to Webb County, where the action accrued. See Cox Engineering, Inc. v. Furston Machine & Supply Co., 749 S.W.2d 508, 511-12 (Tex. App--Fort Worth 1988, no writ). This, it did not do, but determined that venue was proper in Duval County.

A review of the entire record, both the trial and appellate, show no evidence that plaintiffs resided in Duval County at the time suit was filed. To the contrary, in answer to interrogatories filed on October 21, 1991, both Reyes and Padron state that their place of residence was "10521 Hemlock, Corpus Christi, Texas." I would take judicial notice that Corpus Christi, Texas is in Nueces County, Texas. Also, the record reveals that the plaintiffs introduced into evidence the accident reports made by a Texas Highway Patrolman at the scene of the accident. This report states that Reyes' place of residence was "10521 Hemlock, Corpus Christi, Texas," and that the accident made the basis of the suits occurred in Webb County, Texas. There was no evidence contradicting the sworn testimony of Reyes and Padron that they resided in Corpus Christi, Nueces County, Texas.

The plaintiffs' argument that venue is "proper" in Duval County is based on the premises that: 1) an unrelated party can "waive" another litigant's right to complain about venue; and 2) the mere existence in the court file of requests for admission directed to another party which were not answered, provides "evidence" of venue facts to defeat a motion to transfer venue. Neither argument is valid.

Reyes' and Padron's lack of complaint about venue does not make venue "proper" in Duval County, as to the Hyundai defendants. Venue is "proper" only if the venue statutes place venue in the county of suit. The plaintiffs' position ignores the real issue; whether venue in Duval County comported with the statutory venue provisions.

The Hyundai defendants' venue proof establishes conclusively that the plaintiffs' cause of action accrued in Webb County. The Hyundai defendants timely denied plaintiffs' venue allegations and moved to transfer the case to Webb County, Texas. The plaintiffs failed to meet their burden of showing that venue was proper in Duval County, and the record before this court demonstrates that venue was not proper in Duval County, but was proper in Webb County.

I would sustain the Hyundai defendants' first point of error as to Appellants Hyundai Motor Company, Hyundai Motors America, Inc., and Port City Hyundai, Inc., and order the cause of action as to them remanded to the trial court with instruction to direct the district clerk of Duval County, Texas, to forthwith transfer this cause, as to them, to the district clerk of Webb County, Texas, for further proceedings. The defendant Vicente Reyes did not appeal, and the judgment as to him should be final.

BILL STEPHENS,

JUSTICE

PUBLISH

 

 

 

1. Assigned to this case by the Chief Justice of the Supreme Court of Texas.

2. The record does not show that citation was ever issued or served on either Reyes or Padron.

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