David L. Polys and Marcia Dignan Polys v. William C. Daney, M.D., et al.--Appeal from 74th District Court of McLennan County

David L. Polys and Marcia Dignan Polys v. William C. Daney, M.D., et al /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-98-285-CV

 

DAVID L. POLYS AND

MARCIA DIGNAN POLYS,

Appellants

v.

 

WILLIAM C. DANEY, M.D., ET AL,

Appellees

 

From the 74th District Court

McLennan County, Texas

Trial Court # 96-2057-3

CONCURRING OPINION

Because the term agency or representative has been construed to require ...possession of broad power and discretion to act for the corporation... the Polyses are denied the forum of their choice. The forum which they chose was not some remote, isolated county known for large monetary awards by juries. They chose Harris county, of which Houston is the county seat.

In Harris county, EmCare maintained a regular office where it regularly conducted the company s business. From this office approximately 5% of the company s nationwide billings were generated and processed. The company listed three addresses on its marketing literature wherein it solicited hospitals to contact them to explore whether the way EmCare staffed and managed hospital emergency rooms was better than the way the prospective hospital was currently operating there emergency rooms. Those three addresses were in Dallas, Houston and Phoenix. They had a Regional Medical Director located in Houston, along with an office manager and office staff. The job description for the Regional Medical Director is as follows:

JOB DESCRIPTION

JOB TITLE:Regional Medical Director

DATE:07/01/93

GENERAL SUMMARY:

Coordinate and/or manage on-site clinical activities and problem resolution for contract clients.

ESSENTIAL FUNCTIONS:

1.Performs clinical medical duties for new and existing(40%)

contracts, as required.

2.Provides contract start-up administration and/or(25%)

consultative medical services; reviews risk management

incidents and advises management.

3.Provides counsel and advise [sic] to contract Medical Directors(25%)

and physicians on variety of issues and/or problems,

Including staffing needs, EMS management, professional

behavior/personal performance of physicians, etc.

4.Assists with physician and medical director recruiting (5%)

and interviews; provides feedback and recommendations,

as requested.

5.Attends corporate meetings. (5%)

The intent of this job description is to provide a representative summary of the major duties and responsibilities performed by incumbents of this job. Incumbent may be required to perform job-related tasks other than those specifically presented in this document.

 

Both Milligan and Ruiz stated that venue against a corporation may be predicated upon the presence in a county of either an agency a more or less regular and permanent business operation or a representative with broad power to act for the corporation. Milligan v. Southern Express, Inc., 151 Tex. 315, 250 S.W.2d 194, 198 (1952); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 759 (Tex. 1993). The evidence referred to above is some evidence that EmCare had a more or less regular and permanent business operation in Harris County. Under the applicable standard of review, it would thus seem to have been an abuse of discretion for the trial court to have ordered the case transferred out of Harris County.

However the concept of agency being a more or less regular and permanent business operation was killed when the Supreme Court converted agency to agent by holding [t]he missing element in an ordinary employee, essential for both types of persons in the venue statute, is possession of broad power and discretion to act for the corporation. Id. at 759 (emphasis added). Thus the focus for venue purposes became whether there was a person regularly working in the county that had broad discretionary authority to bind the corporation in its corporate activities. In this case the focus was on Dr. Clarke. Dr. Clarke has some discretionary authority including the resolution of customer complaints, but it is not the type broad discretionary authority required by Ruiz, by which I am bound. Accordingly, I concur that the trial court did not err in transferring the cause to McLennan County.

I do not rely on Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex. 1998). Ford is an understandable result when you realize that the dealership through which the plaintiff was attempting to establish venue was a separate corporation and business operation from Ford Motor Co. They were a Ford dealership, partially owned by Ford Motor Co., but they were clearly separate business entities with a contractual relationship between them for the conduct of certain manufacture s recall and warranty work. It was the business of the dealership, not Ford Motor Co., that was being regularly conducted in Rusk county.

The present case is distinguishable from Ford. EmCare s business operations in Houston were not operated in the form of another corporate entity. The Houston location was another office where EmCare s business was regularly conducted in Texas. Both offices were part of the same corporate entity. It was EmCare s business that was being regularly conducted in Harris County.

For the reasons expressed, I concur in the holding of the majority.

 

TOM GRAY

Justice

 

Concurring opinion delivered and filed March 22, 2000

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