Court of Appeals of Texas, Fifth District, Dallas
Petition for review filed by, 02/20/2014
On Appeal from the 116th Judicial District Court, Dallas County, Texas. Trial Court Cause No. DC-12-15204.
For Appellants: Nina Cortell, Haynes & Boone, LLP, Dallas, TX.
For Appellees: Charla G. Aldous, Aldous Law Firm, Dallas, TX; Brent Walker, Douglas D. Fletcher, Fernando P. Arias, David C. Colley, Dallas, TX.
For Intervenor: Kevin Glasheen, Lubbock, TX; Jon J. Bailey, San Angelo, TX; Ronald Dean Gresham, James L. Mitchell, Jr., Stephen F. Malouf, Peter Malouf, Jeremy C. Martin, Jonathan Nockels, Sarah Shulkin, Dallas, TX; Richard O. Leeper, Broadus A. Spivey, Imelda Noyola, Dicky Grigg, Austin, TX; Zachary L. Boyd, Copperas Cove, TX.
Before Justices FitzGerald, Lang, and Myers.
KERRY P. FITZGERALD, JUSTICE
This interlocutory appeal arises from the trial court's order denying Union Pacific Railroad Company's motions to transfer venue. Because we conclude plaintiffs did not meet their burden to establish that Union Pacific maintains a principal office in Dallas County, we reverse the trial court's order.
On November 15, 2012, a truck and flatbed trailer carrying military veterans and their spouses in a parade entered an active railroad crossing and was struck by a train in Midland, Texas. Several individuals were injured or killed. Smith Industries, Inc. (" Smith" ) provided the truck and trailer, and the train was operated by Union Pacific Railroad Co. (" Union Pacific" ).
As a result, Catherine Stouffer, Ada Stouffer, and Gary Stouffer filed this personal injury and wrongful death suit against Smith and Union Pacific in Dallas County. Petitions in Intervention were filed by Angela Boivin, Leonce Boivin, Lucette Boivan, and Tiffaine Lubbers (Collectively, with the Stouffers and subsequent interveners " Plaintiffs" ). The petition asserted that Smith is a Texas corporation with its principal place of business in Midland, Texas. The petition further alleged that Union Pacific is a foreign corporation authorized to do business in the state of Texas, and maintains a principal office in
Dallas County. Union Pacific filed a motion to transfer venue from Dallas County to Midland County. In so doing, Union Pacific denied that it maintains a principal office in Dallas County and asserted that its sole principal office in Texas is located in Harris County.
The plaintiffs involved in the case at that time responded to the motion, and Union Pacific replied. The court conducted a hearing and denied the motion to transfer. Following the trial court's determination on venue, several additional petitions in intervention were filed. This interlocutory appeal challenging the trial court's determination on venue followed.
Plaintiffs contend that appellate jurisdiction is lacking and have filed a motion to dismiss the appeal. Union Pacific contends that appellate jurisdiction is proper.
Interlocutory orders generally are not appealable. See Lehmann v. Har--Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (" [T]he general rule . . . is that an appeal may be taken only from a final judgment." ). The legislature has reinforced the general rule in the venue context by providing that " [n]o interlocutory appeal shall lie from the [trial court's venue] determination." Tex. Civ. Prac. & Rem. Code Ann. § 15.064(a) (West 2002). But the legislature has also authorized interlocutory appeals from certain venue rulings. The exception is found in section 15.003, which provides in pertinent part as follows:
(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.
(b) An interlocutory appeal may be taken of a trial court's determination under Subsection (a) that :
(1) a plaintiff did or did not independently establish proper venue
(2) a plaintiff that did not independently establish proper venue did or did not establish the items ...