Mora Lee West, Deceased, by and through her Estate Co-Executors, Barbara West Clark, Charles F. West, and William Floyd West, Jr., (APPELLANTS/CROSS-APPELLEES) v. Edwina Taylor, (APPELLEE/CROSS-APPELLANT)--Appeal from County Court at Law of Kendall County

MEMORANDUM OPINION
No. 04-04-00119-CV

Mora Lee WEST, Deceased, By and Through Her Estate Co-Executors, Barbara West Clark, Charles F. West, and William Floyd West, Jr.,

Appellant/Cross-Appellee
v.
Edwina TAYLOR,
Appellee/Cross-Appellant
From the County Court at Law, Kendall County, Texas
Trial Court No. 01-039CCL
Honorable Bill R. Palmer, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 1, 2004

REVERSED AND REMANDED

Mora Lee West, by and through the co-executors of her estate ("the estate"), appeals from the trial court's judgment awarding damages to Edwina Taylor. Because we find that venue was not proper in Kendall County, the county in which suit was filed and judgment rendered, we reverse and remand the case with instruction to the trial court to transfer the case to Schleicher County for a new trial.

Background

Mora Lee West was involved in a car accident on Highway 277 in Schleicher County, Texas on March 18, 1999. The occupants of the other vehicle, Edwina Taylor and her husband, Dub Taylor, were both injured. Mrs. Taylor was taken to Schleicher County Medical Center where she received treatment for her injuries and her husband was taken by air ambulance to Shannon Medical Center in San Angelo, Texas, where he died later that day. Prior to any suit being filed related to the accident, Mora Lee West died from unrelated causes. Her will was admitted to probate in Schleicher County and letters testamentary were issued to three co-executors including Barbara West Clark, Charles F. West, and William Floyd West, Jr.

Subsequently, Mrs. Taylor filed suit against West's estate, maintaining that suit was proper in Kendall County because that was the residence of one of the co-executors, Barbara West Clark. The estate filed a motion to transfer venue to Schleicher County, which the trial court denied. The case proceeded to trial on October 27, 2003. After two days of trial, the jury returned a verdict in favor of Mrs. Taylor and the trial court ultimately entered a final judgment for Mrs. Taylor in the amount of $216, 069.12. The estate timely filed notice of appeal challenging, among other things, venue.

Standard of Review

The estate first contends that venue is not proper in Kendall County and that the trial court

erred in denying the estate's timely Motion to Transfer Venue to Schleicher County. If the defendant objects to the plaintiff's choice of venue through a proper motion to transfer, the burden is on the plaintiff to prove that venue is maintainable in the county of suit. See Tex. R. Civ. P. 86, 87; Wilson v. Tex. Parks & Wildlife Dep't, 886 S.W.2d 259, 260 (Tex. 1994). If the plaintiff fails to meet this burden, the trial court must transfer the suit to another county of proper venue as requested by the defendant, if the defendant meets their burden of establishing that venue is maintainable in the county to which transfer is sought. Tex. Civ. Prac. & Rem. Code Ann. 15.063 (Vernon 2002); Tex. R. Civ. P. 87.

An appellate court, in determining whether venue was or was not proper in the ultimate county of suit, considers the entire record, including the trial on the merits. Tex. Civ. Prac. & Rem. Code Ann. 15.064(b) (Vernon 2002); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757-58 (Tex. 1993). If there is any probative evidence in the record that venue was proper in the county where judgment was rendered, the appellate court must uphold the trial court's determination. Bonham State Bank v. Beadle, 907 S.W.2d 465, 471 (Tex. 1995). If there is no such evidence, the appellate court must reverse and remand to the trial court for a new trial. Ruiz, 868 S.W.2d at 758. If the appellate court finds that venue was improper, it is in no event harmless error and the court must reverse the trial court's judgment. Tex. Civ. Prac. & Rem. Code Ann. 15.064(b). If there is any probative evidence that venue was proper in the county to which transfer was sought, the appellate court should instruct the trial court to transfer the case to that county. Ruiz, 868 S.W.2d at 758.

Analysis

In this case, the facts related to venue are essentially undisputed. The accident giving rise to this lawsuit occurred in Schleicher County and all of the parties involved in the accident- Edwina Taylor, Dub Taylor, and Mora Lee West- were residents of Schleicher County at the time. It is further undisputed that West's estate is being administered in Schleicher County and one of the estate's co-executors resides in Kendall County.

Mrs. Taylor maintains that the lawsuit is proper in Kendall County under the general venue statute that allows lawsuits to be brought in the county of the defendant's residence if the defendant is a natural person. Tex. Civ. Prac. & Rem. Code Ann. 15.002 (a)(2) (Vernon 2002). Specifically, Mrs. Taylor points to the fact that Clark, as one of the co-executors of the estate, was a named defendant in the suit and resided in Kendall County at the time suit was filed. This argument, however, fails to recognize that venue must be determined on the facts as they existed at the time of accrual. Tex. Civ. Prac. & Rem. Code Ann. 15.006 (Vernon 2002)(court shall determine venue based on the facts existing at the time the cause of action accrued). A cause of action is said to accrue "when facts come into existence that authorize a claimant to seek a judicial remedy." Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex. 2001). Clearly, the automobile accident that forms the basis of this lawsuit occurred on March 18, 1999. At that time, West was alive, was the only possible defendant, and was a resident of Schleicher County. The events that occurred after the accrual of Taylor's cause of action in this case, namely West's death and the naming of executors of her estate, are not pertinent to the venue inquiry. See In re Stroud Oil Prop., Inc., 110 S.W.3d 18, 26 (Tex. App. -- Waco 2002, orig. proceeding). In addition, Clark is not being sued in her individual capacity, but only as representative of West's estate. Clark will not be personally liable for any negligent acts or omissions of West and is named in the suit only because in Texas, the estate itself is not a legal entity and cannot be sued as such. Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex. 1987).

Based upon the undisputed facts of this case, venue is proper in Schleicher County under either the general venue rule or the permissive provision for claims against an estate. Tex. Civ. Prac. & Rem. Code Ann. 15.002 , 15.031 (Vernon 2002). Once the motion to transfer was filed, Taylor had the burden of establishing that venue was maintainable in Kendall County. Because the record contains no probative evidence that venue is proper in Kendall County based on the facts as they existed at the time of accrual, and because West has established that venue is maintainable in Schleicher County, it was error for the trial court to deny the motion to transfer. Allowing trial in an improper venue is always reversible error. Tex. Civ. Prac. & Rem. Code Ann. 15.064(b); Ruiz, 868 S.W.2d at 758. Accordingly, we reverse the trial court's judgment and remand with instruction to the trial court to transfer the case to Schleicher County for a new trial. Because we find the issue of venue determinative in this case, we reach no other issues on appeal.

Phylis J. Speedlin, Justice