RAMIRO GARZA AND J&R VALLEY OILFIELD SERVICES, INC. v. INES GONZALEZ GARCIA (Majority)

No. 02-0300

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Ramiro Garza and J&R Valley Oilfield Services, Inc., Petitioners,

v.

Ines Gonzalez Garcia, Respondent

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On Petition for Review from the

Court of Appeals for the Thirteenth District of Texas

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 Argued January 22, 2003

Justice Wainwright, dissenting.

Intending to stem venue shopping and gamesmanship, the Legislature precluded Texas appellate courts from reviewing venue transfers ordered on the basis of Aconvenience of the parties and witnesses and in the interest of justice.@ Tex. Civ. Prac. & Rem. Code ' 15.002(b); see An Act Relating to Venue for Civil Actions: Debate on Tex. S.B. 32 on the Floor of the House, 74th Leg., R.S. 4 (May 3, 1995) (testimony of Rep. Duncan) (transcript available at the Texas State Law Library) [hereinafter Debate on Tex. S.B. 32]. Unlike any other orders issued in civil matters by state trial courts (of which I am aware), decisions to transfer venue based on convenience of the parties are by statute shielded entirely from appellate review. Tex. Civ. Prac. & Rem. Code ' 15.002(c). But the Legislature raises this shield only Awhere the court finds@ the requisite elements required for the convenience transfer.[1] Id. ' 15.002(b)-(c)(emphasis added). Notwithstanding the words of the statute, the Court decides today that trial courts need not comply with the Legislature=s instructions under section 15.002(b) to find a convenience transfer with reference to the three factors set out in the statute. __ S.W.3d __. Now, without making the referenced finding, a trial court may sign an order that generically grants a transfer motion that recites anywhere in the motion four talismanic words B Aconvenience of the parties@ - and insulate the grant of the motion from appellate review for all time. Under the Court=s opinion, this occurs even if 1) no arguments were presented to the trial court in the briefing or at the venue hearing in support of a convenience transfer, 2) no evidence was submitted in the briefing or at the hearing in support of the required statutory fact findings and 3) there is no indication in the record that a trial judge was even aware that signing the generic order would effect a convenience transfer. Certainly the Legislature may restrict appellate review of venue transfers upon the satisfaction of given conditions, but we should check to ensure that the conditions were considered by trial courts to trigger the bar on appellate review.

The Court goes even further and states that a trial judge can intentionally violate the statute, without recourse, by granting the transfer even if the judge expressly states that Athere was no evidence for a convenience transfer.@ __ S.W.3d at __. If this were to occur, this Court should not countenance such conduct in the Texas judicial system, much less interpret a statute in a manner that invites its violation. The Court=s interpretation of this statute is inconsistent with the statute=s language and is a departure from long-standing precedent that we are to give effect to all of the words in a statute. St. Luke=s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997); Simmons v. Arnim, 220 S.W. 66, 70 (Tex. 1920). The Court should follow the express language of the statute and simply require, at a minimum, some indication in the record that the trial court transferred the case for convenience of the parties. This approach is consistent with the legislative preclusion of appellate review of convenience transfers because it does not permit factual or legal sufficiency review of the evidence supporting a transfer. Appellate courts would search the record only for some indication that the transfer was for the convenience of the parties. If such an indication is in the record, then the transfer stands and there is no appellate consideration of its merits.

In this case, Ramiro Garza and J&R Valley Oilfield Services, Inc. complained that Starr County was not a county of proper venue, asserting that APlaintiffs= cause of action, if any, did not arise in Starr County@ and that Ano mandatory or permissive exception authorizes the maintenance of the action in Starr County, Texas.@ Specifically, defendants argued that Garza was not a resident of Starr County for venue purposes.[2] After arguing that venue was proper in Hidalgo County, the motion stated in the following single sentence: AAlternatively, [J&R] would show that venue should be transferred to Hidalgo County for the convenience of the parties.@

The motion neither cited nor referenced any supporting arguments of inconvenience or injustice to the parties. At the venue hearing, the parties did not argue that the court should transfer the case based on convenience, neither the court nor the parties even mentioned the required findings under the statute, and there is no indication in the record that the trial judge granted a convenience transfer. The court signed an order that recited, A[T]he Court grants Defendants= Motion to Transfer Venue.@ The parties and the trial court focused on whether the plaintiffs= chosen venue, Starr County, was a proper venue under section 15.002(a)(2) based on Garza=s residence, and there was ample evidence that Starr County was defendant=s residence. Venue was proper in Starr County, and this Court never suggests that it was not.

As further justification for its ruling, the Court contends that trial judges are too busy to pay attention to such details before signing venue transfer orders. ___ S.W.3d at ___. On the contrary, it is the sworn duty of judges to uphold the law and pay careful attention to such important legal details. Only when the record indicates that trial courts effected a convenience transfer may we then be satisfied that the statutory requisites were followed while also honoring the Legislature=s intent to remove the merits of such transfers from appellate review. In short, when a transfer is also sought on traditional venue grounds, it would not be onerous to require a trial court transferring a case under section 15.002(b) to indicate in some manner in the record that, after considering the statutory factors, it granted the motion to transfer venue based on convenience of the parties and witnesses. This would avoid developing jurisprudence, as the Court does today, based on a guess that the judge Amight have intended to grant [the motion] on convenience grounds.@ __ S.W.3d at __. Rather than guess, the Court could determine if a trial judge actually made a convenience transfer if it simply enforced the statute as written. Given a legislative instruction to trial courts to affirmatively take action to effect a convenience transfer, the Court should require some indication that the statute was followed rather than assume, without any indication in the record, that it was.

But the Court contends that its decision is not based on just a guess, but also on a presumption. __ S.W.3d at __. Its presumption is that A[g]enerally, we must affirm a trial court=s ruling if any ground in the accompanying motion is meritorious.@ __ S.W.3d at __. I question whether insertion of a few words in a motion can always raise an additional meritorious ground on appeal in motions the Court cites to support its position (e.g., summary judgments and pleas to the jurisdiction). Even assuming it can, this is also not an appropriate basis for the decision. It is inappropriate for the Court to apply an appellate presumption to trump a statutory instruction. This is especially true when the statute was enacted as part of a clear Legislative mandate, as existed here, to address venue shopping. See Debate on Tex. S.B. 32, supra (testimony of Rep. Duncan). Moreover, the Court=s examples of motions to which this presumption applies are inapposite; the Legislature does not require a finding to grant a summary judgment or a plea to the jurisdiction; it does for a convenience transfer. The Court attempts to avoid this distinction by relying on a guess and a presumption. I fear that the opinion=s method of interpreting this statute could open a pandora=s box of unintended consequences by not enforcing the Legislature=s instruction to trial courts to Afind@ specified factors to order a convenience transfer, when this can be accomplished without undermining the preclusion on appellate review.

For these reasons, I respectfully dissent, and I join sections I and II of CHIEF JUSTICE PHILLIPS=S dissent. I respectfully part with CHIEF JUSTICE PHILLIPS=S dissent only as to his statement that the Court=s opinion may be supported by a literal reading of the statute.

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J. Dale Wainwright

Justice

OPINION DELIVERED: May 14, 2004

 [1] For a convenience transfer the court must find that A(1) maintenance of the action in the county of suit would work an injustice to the movant considering the movant=s economic and personal hardship; (2) the balance of interests of all the parties predominates in favor of the action being brought in the other county; and (3) the transfer of the action would not work an injustice to any other party.@ Tex. Civ. Prac. & Rem. Code ' 15.002(b)(1)-(3). The Court=s opinion does not mention these three factors.

 [2] If venue is properly established against one defendant, it is also proper against all the defendants for all claims arising out of the same occurrence. Tex. Civ. Prac. & Rem. Code ' 15.005. For this reason, the parties focused their argument on the important issue of Garza=s county of residence.