RENZENBERGER, INC., THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, AND SAMUEL GRANT EVERSON v. CORNELIOUS O'BRYANT, JR.--Appeal from 239th District Court of Brazoria County

NUMBER 13-05-00090-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI EDINBURG

RENZENBERGER, INC., THE BURLINGTON

NORTHERN AND SANTA FE RAILWAY COMPANY,

AND SAMUEL GRANT EVERSON, Appellants,

v.

CORNELIOUS O BRYANT, JR., Appellee.

On appeal from the 239th District Court of Brazoria County, Texas.

MEMORANDUM OPINION

Before the Court En Banc //

Memorandum Opinion by Justice Hinojosa

Joined by Chief Justice Valdez and Justices Castillo and Wittig

This is an accelerated interlocutory appeal under section 15.003(c) of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. 15.003(c) (Vernon Supp. 2004-05). Appellants, Renzenberger, Inc. ( Renzenberger ), The Burlington Northern and Santa Fe Railway Company ( BNSF ), and Samuel Grant Everson ( Everson ), appeal from an order of the trial court denying their motion to transfer venue and concluding that the joinder of appellee, Cornelious O Bryant, Jr. ( O Bryant ), in the underlying lawsuit is proper. See Tex. Civ. Prac. & Rem. Code Ann. 15.003(a) (Vernon Supp. 2004-05). We reverse and remand.

A. Background

This case arises from an automobile accident that occurred in Milam County. O Bryant and Randy Daniels ( Daniels ), another passenger in the vehicle, allege that they sustained personal injuries in the accident. Both parties filed suit against appellants in Brazoria County.

O Bryant and Daniels are railroad workers employed by BNSF. Their cause of action arises under the Federal Employers Liability Act ( FELA ). See 45 U.S.C. 51 et seq. Suits brought under the FELA are subject to the mandatory venue provisions set forth in section 15.018 of the civil practice and remedies code. Tex. Civ. Prac. & Rem. Code Ann. 15.018 (Vernon 2002). Section 15.018 provides, in relevant part:

(b) All suits brought under the Federal Employers Liability Act . . . shall be brought:

(1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;

(2) in the county where the defendant s principal office in this state is located; or

(3) in the county where the plaintiff resided at the time the cause of action accrued.

Tex. Civ. Prac. & Rem. Code Ann. 15.018(b) (Vernon 2002).

The petition filed by O Bryant and Daniels asserts that venue is proper as to Daniels under the FELA because he is a resident of Brazoria County. As to O Bryant, the petition asserts that venue is proper in Brazoria County pursuant to the joinder provisions of section 15.003 of the civil practice and remedies code. Tex. Civ. Prac. & Rem. Code Ann. 15.003 (Vernon Supp. 2004-05). Section 15.003 provides, in relevant part:

(a) In a suit in which there is more than one plaintiff, whether the plaintiffs are included by joinder, by intervention, because the lawsuit was begun by more than one plaintiff, or otherwise, each plaintiff must, independently of every other plaintiff, establish proper venue. If a plaintiff cannot independently establish proper venue, that plaintiff's part of the suit, including all of that plaintiff's claims and causes of action, must be transferred to a county of proper venue or dismissed, as is appropriate, unless that plaintiff, independently of every other plaintiff, establishes that:

(1) joinder of that plaintiff or intervention in the suit by that plaintiff is proper under the Texas Rules of Civil Procedure;

(2) maintaining venue as to that plaintiff in the county of suit does not unfairly prejudice another party to the suit;

(3) there is an essential need to have that plaintiff's claim tried in the county in which the suit is pending; and

(4) the county in which the suit is pending is a fair and convenient venue for that plaintiff and all persons against whom the suit is brought.

Tex. Civ. Prac. & Rem. Code Ann. 15.003(a) (Vernon Supp. 2004-05).

Appellants filed a motion to transfer O Bryant s cause of action to Tarrant County, the county in which the principal office of BNSF is located. Appellants specifically denied O Bryant s assertion that venue was proper in Brazoria County under section 15.003 of the civil practice and remedies code.

O Bryant filed a response with attached affidavits, deposition excerpts, and responses to discovery requests. In the response, O Bryant argued that he was properly before the court in Brazoria County because he had established the four elements necessary for joinder set forth in section 15.003(a). See Tex. Civ. Prac. & Rem. Code Ann. 15.003(a) (Vernon Supp. 2004-05).

Appellants later filed a reply and attached the investigating police officer s accident report and an excerpt from the officer s deposition. In the reply, appellants asserted that pursuant to section 15.018, there are three counties of proper venue in this case: (1) Milam, (2) Harris, and (3) Tarrant. See Tex. Civ. Prac. & Rem. Code Ann. 15.018 (Vernon 2002). Appellants submitted the investigating police officer s accident report and deposition testimony as evidence that: (1) the accident occurred in Milam County and (2) O Bryant resided in Harris County at the time of the accident. Appellants requested the transfer of O Bryant s cause of action to either Milam County, Harris County, or Tarrant County. Following a hearing, the trial court denied appellants motion to transfer venue. This interlocutory appeal ensued.

B. Standard of Review

We conduct an independent de novo review of the entire record of a trial court s section 15.003(a) joinder determination. Tex. Civ. Prac. & Rem. Code Ann. 15.003(c)(1) (Vernon Supp. 2004-05); Am. Home Prods. v. Clark, 38 S.W.3d 92, 99 (Tex. 2000); Surgitek v. Abel, 997 S.W.2d 598, 603 (Tex. 1999). In conducting this review, the appellate court is not constrained solely to review the pleadings and affidavits, but should consider the entire record, including any evidence presented at the hearing. Surgitek, 997 S.W.2d at 603.

The plaintiff bears the burden of proof to establish prima facie proof of each joinder element. See id. at 602-03; Teco-Westinghouse Motor Co. v. Gonzalez, 54 S.W.3d 910, 913 (Tex. App. Corpus Christi 2001, no pet.). If the defendant offers no rebuttal evidence, the inquiry is over. Surgitek, 997 S.W.2d at 603. However, if the defendant s joinder evidence rebuts the plaintiff s prima facie proof, the trial court has discretion to consider all available evidence to resolve any disputes that the parties proof creates. Id. The trial court has discretion to allow a broader range of proof in making a section 15.003(a) joinder determination than it would in a venue hearing. Id. Specifically, a trial court may allow the parties to offer testimony and may order limited discovery on the joinder elements if the trial court believes it would be useful to its determination. Id.

C. Analysis

Appellants contend that O Bryant did not meet his burden of establishing all four elements required by section 15.003(a) for joinder. // See Tex. Civ. Prac. & Rem. Code Ann. 15.003(a) (Vernon Supp. 2004-05). Specifically, appellants argue that O Bryant failed to meet his burden of proving an essential need to have his case tried in Brazoria County. Because appellants concede that O Bryant has satisfied elements (1), (2) and (4), we will limit our review to element (3) of section 15.003(a).

The third element of section 15.003(a) requires that O Bryant establish an essential need to have his claim tried in Brazoria County. See Tex. Civ. Prac. & Rem. Code Ann. 15.003(a) (Vernon Supp. 2004-05); Surgitek, 997 S.W.2d at 604; Gonzalez, 54 S.W.3d at 915. To prove an essential need, he must show a compelling reason why he must be joined in that county, and not merely that he has an essential need to join with Daniels in order to pool resources. See Surgitek, 997 S.W.2d at 604; Gonzalez, 54 S.W.3d at 915. He must establish that it was indispensably necessary to try his claim in Brazoria County. See Surgitek, 997 S.W.2d at 604 (recognizing that the language of section 15.003 makes the burden of proving proper joinder very high ).

O Bryant argues that he has an essential need to have his case tried in Brazoria County because his key witness, Daniels, is only available to testify in Brazoria County. // The evidence offered by O Bryant to establish his right to join the Brazoria County lawsuit included his own affidavit, Daniels affidavit, the affidavit of his attorney, Everson s deposition, and responses made by BNSF and Renzenberger to requests for admission.

In his affidavit, O Bryant says that Daniels is an indispensable witness because the facts in Daniels case are the same facts in his case. In his affidavit, Daniels states that as a result of the accident, he has had back surgery and is scheduled to have surgery on his neck. Daniels states he is unable to work, his wife is providing for the family, and he is assisting with the care of their children. Daniels states he does not have the money to travel to Tarrant County and will not personally testify for O Bryant if the case is moved to Tarrant County, or any other county, other than Brazoria. Daniels also states that he believes he is an indispensable witness for O Bryant because he was in the passenger seat of the van and can testify that Everson overcorrected the van, causing it to run off the road.

The affidavit of O Bryant s attorney states that he represents both O Bryant and Daniels in their suit against appellants, the case involves the same facts and same causes of action, and, with the exception of health care providers, he intends to present the same evidence and witnesses for Daniels as he does for O Bryant. He contends that Daniels is an indispensable witness to O Bryant s case because he has knowledge regarding the negligence of Renzenberger, weather and road conditions, and O Bryant s physical condition before and after the accident. In the affidavit, he also states that trying both cases in Brazoria County will preserve judicial resources, reduce litigation costs for all parties, and eliminate the possibility of inconsistent judgments.

In support of his argument that the unavailability of an indispensable witness satisfies the essential need element of section 15.003, O Bryant refers us to our opinion in Teco-Westinghouse Motor Co. v. Gonzalez. In Gonzalez, we found that when an indispensable witness, who worked in Monterrey, Mexico, could not be available for a trial held away from the state border, an essential need existed to conduct the trial in Cameron County. 54 S.W.3d at 915-17. Appellants counter that Gonzalez is distinguishable because Cameron County was the only county that could provide Gonzalez with the availability of his indispensable witness, whereas in the instant case, Brazoria County is not the only county that can ensure the availability of O Bryant s indispensable witness.

Appellants assert that, under the FELA, O Bryant has three choices for proper venue: (1) Milam County, where the accident occurred; (2) Tarrant County, where BNSF has its principal place of business; or (3) Harris County, O Bryant s county of residence at the time of the accident. See Tex. Civ. Prac. & Rem. Code Ann. 15.018 (Vernon 2002). Appellants contend that Daniels affidavit declaring his unavailability fails to rise to the level of prima facie evidence on the issue of unavailability. We agree.

O Bryant s claim that he has an essential need to try his case in Brazoria County is based on Daniels affidavit that he will not personally testify for O Bryant if the case is moved to Tarrant County, or any other county, other than Brazoria County. However, we note that the Texas Rules of Civil Procedure authorize litigants to subpoena witnesses to appear and give testimony at trial. See Tex. R. Civ. P. 176.2. A person may be required by subpoena to appear in a county that is within 150 miles from where the person resides or is served. See Tex. R. Civ. P. 176.3. Failure to obey a subpoena may be deemed contempt of the court from which the subpoena is issued and may be punished by fine or confinement, or both. See Tex. R. Civ. P. 176.8(a). Harris County and Milam County are both within 150 miles from Pearland, Texas, the location of Daniels residence, // and O Bryant has the ability to subpoena Daniels to appear at a trial in either one of these venues. Although Daniels affidavit states that he will not appear in any other county, except Brazoria, as a witness, he may be compelled to appear in another county pursuant to rule 176.8(a) by the procurement of a writ of attachment. See Tex. R. Civ. P. 176.8(a).

O Bryant contends appellants waived the right to request that his case be transferred to any county, other than Tarrant County, because they failed to properly amend their motion to transfer venue. However, we note that in their reply, appellants requested that O Bryant s cause of action be transferred to either Milam County, Harris County, or Tarrant County, the three counties of proper venue under section 15.018 of the civil practice and remedies code. Although the pleading was entitled reply as opposed to amended motion to transfer, we look to the substance, not the caption, of a pleading to determine its character. See Tex. R. Civ. P. 71; Surgitek, 997 S.W.2d at 701. The substance of appellants request is clear: they sought to amend their motion to transfer venue to include two additional counties. Furthermore, because appellants amended motion was filed before the court ruled on the original motion to transfer venue, we conclude that the amended motion was timely filed. See In re Pepsico, Inc., 87 S.W.3d 787, 794 (Tex. App. Texarkana 2002, no pet.) (holding that an original timely motion to transfer venue may be amended to cure defects in the original motion if the amended motion is filed before the trial court rules on the original motion, and that the properly filed amended motion relates back to and supersedes the original motion to transfer venue. ). Having reviewed the entire record, we conclude that O Bryant failed to establish that it was indispensably necessary to try his claim in Brazoria County. Daniels assertion that he will only testify for O Bryant if his case is tried in Brazoria County fails to rise to the level of prima facie evidence on the issue of unavailability, the sole basis for O Bryant s essential need to try his case in Brazoria County. Accordingly, we sustain appellants sole issue.

We reverse the trial court s order denying appellants motion to transfer O Bryant s cause of action and remand this case to the trial court for further proceedings.

FEDERICO G. HINOJOSA

Justice

Dissenting Memorandum Opinion by Justice Ya ez

Joined by Justices Rodriguez and Garza

Memorandum Opinion delivered and filed this

the 9th day of June, 2005.