American Home Products Corp., et al v. Fawn C. Clark, et al.--Appeal from 249th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

No. 10-99-134-CV

AMERICAN HOME PRODUCTS CORPORATION

AND WYETH-AYERST LABORATORIES, A

DIVISION OF AMERICAN HOME PRODUCTS

CORPORATION,

Appellants

v.

FAWN C. CLARK, SYLVIA JACOBSON, ANNA

KRAUS, SHARLET LAWS, NANCY WEBSTER,

DONNA WELCH, DELIA ZEEH, CAROL BODILY,

MARY JO HALL, AND SHONNA BUSH,

Appellees

From the 249th District Court

Johnson County, Texas

Trial Court # 249-213-98

MEMORANDUM OPINION

Appellees filed suit in Johnson County against Appellants and others for injuries allegedly sustained as a result of Appellees use of a product combination commonly referred to as phen-fen. None of the appellees is a resident of Johnson County. Appellants filed a Motion to Transfer Venue, Objection to Attempted Joinder, and Motion to Strike and/or Sever Plaintiffs under sections 15.002 and 15.003 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. 15.002, 15.003 (Vernon Supp. 1999). After receiving Appellees response to this motion and conducting a hearing, the court denied the motion without specifying the grounds for its decision.

Appellees questioned our jurisdiction to hear this interlocutory appeal purportedly brought under section 15.003(c) of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. 15.003(c) (Vernon Supp. 1999). Because the court s original order did not specify whether the court denied Appellants motion because each appellee had established proper venue under section 15.002 or because each appellee was properly joined under section 15.003, we abated this cause and directed the court to prepare a revised order specifying the basis for its decision so we could answer Appellees jurisdictional challenge. See American Home Prods. Corp. v. Clark, No. 10-99-134-CV, slip op. at 3, 1999 WL 435200, at *2 (Tex. App. Waco June 29, 1999, order).

The court signed its Revised Order on July 9. That order states in pertinent part:

Based upon the record, the pleadings and all evidence, the Court finds that venue as to all Defendants is appropriate under Tex. Civ. Prac. & Rem. Code 15.002(a)(2) and 15.005.

As the Court finds that Plaintiffs, each of them, have established venue as to all defendants pursuant to Tex. Civ. Prac. & Rem. Code 15.002(a)(2) and 15.005, the Court need not decide the issues presented by the motions, evidence, and argument concerning Tex. Civ. Prac. & Rem. Code 15.003.

Section 15.003(c) permits an appeal only from a decision allowing or denying . . . joinder in cases where a party is unable to independently establish proper venue. Tex. Civ. Prac. & Rem. Code Ann. 15.003(c). In this case, the court found that each plaintiff had independently established proper venue. The court also concluded that because venue was proper it did not need to consider the joinder issues raised under section 15.003. Because the court found that each plaintiff had independently established venue and because the court did not reach the joinder question, section 15.003(c) cannot be the jurisdictional basis for this appeal.

No interlocutory appeal is permitted from a determination that venue has been established under sections 15.002(a) and 15.005 of the Civil Practice and Remedies Code. Bristol-Myers Squibb Co. v. Goldston, 983 S.W.2d 369, 374 & n.19 (Tex. App. Fort Worth 1998, pet. dism d by agr.); Tex. Civ. Prac. & Rem. Code Ann. 15.064(a) (Vernon 1986). Accordingly, we dismiss this appeal for want of jurisdiction.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray (dissenting)

Dismissed for want of jurisdiction

Opinion issued and filed September 8, 1999

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