Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
Petition for Writ of Mandamus.
Chief Justice Valdez and Justices Rodriguez and Benavides.
V. RODRIGUEZ Justice.
petition for writ of mandamus, Lowe's Home Centers,
L.L.C. (Lowe's) asserts that the plaintiffs in the
underlying suit cannot "fraudulently secure venue in one
county and then, once the fraud is discovered, nonsuit and
refile the same claims against the same parties in another
county." The underlying wrongful death and personal
injury case was originally filed against Lowe's and other
defendants in Starr County. Lowe's moved to transfer
venue to Cameron County; however, the trial court denied the
motion to transfer. During subsequent discovery, Lowe's
discovered that the plaintiffs' venue pleadings and
affidavit were at best, incorrect, and at worst, fraudulent.
Lowe's notified counsel for the plaintiffs and proposed
that they agree to transfer venue to Cameron County. Instead,
the plaintiffs nonsuited the case in Starr County and refiled
a substantially similar case in Hidalgo County.
Hidalgo County, Lowe's moved to dismiss the lawsuit, or
alternatively, to transfer the case back to Starr County. The
trial court denied both motions, and this original proceeding
ensued. Lowe's contends that the Hidalgo County trial
court should either dismiss the suit, or alternatively,
transfer the case to Starr County for a determination
regarding whether, because venue was procured by fraud, the
case should be heard in a county of indisputably proper
venue. We conditionally grant the petition for writ of
to the pleadings, this case arises from a propane explosion
that occurred during the early morning hours of Christmas Day
in 2015 at a home owned by Sandra Leos in Cameron County. In
their original petition, the plaintiffs alleged that
"uncontrolled propane leaked via a defective regulator
from [a] propane tank through a defective and improperly
capped propane line in the family home. The explosion was of
such magnitude that it blew the roof from the house, and left
little more than a shell of the home remaining." Two of
the family members died as a result of the explosion, and
four others suffered extensive and catastrophic burn
their third amended original petition filed in Starr County,
Mirna Trevino, as next friend of J.T. and J.T., minors;
Blanca Moreno Garcia, individually and as next friend of S.L.
and R.L., minors, and on behalf of the estate of Genesis
Gonzalez Moreno De Leos; Olivia Pulido, individually and on
behalf of the estate of Juan Ramon Leos; Maria Angelica
Palacios Obregon; Salvador Torres Morales; and Sandra Leos,
brought suit against Lowe's, Hino Gas Sales, Inc. (Hino),
Rego Products, Inc. (Rego), Engineered Controls,
International, L.L.C. (ECI), Thompson Tank, Inc. (Thompson),
La Pulga de Rio, L.L.C. (La Pulga de Rio), La Gran Pulga, and
Ramon De La Cruz.
to the petition, Hino provided the propane to the home in
question and acted negligently regarding its duties to
inspect and maintain the propane tank. Lowe's removed a
gas dryer and gas water heater from the home and replaced
them with electric appliances, but acted negligently in
failing to properly cap off the gas lines to the old
appliances. Rego and ECI designed, manufactured, and sold the
allegedly defective regulator, and Thompson designed,
manufactured, distributed, or sold the propane tank. La Pulga
De Rio, La Gran Pulga, and De La Cruz sold the tank.
According to the petition, De La Cruz "does business
under the name" La Gran Pulga. In sum, the
plaintiffs' causes of action included: negligence against
Hino, Lowe's, Rego, ECI, Thompson, La Pulga, and De La
Cruz; negligent misrepresentation against La Pulga, La Gran
Pulga, and De La Cruz; negligence per se against Hino and
Lowe's; strict products liability against Rego, ECI,
Thompson, La Pulga, La Gran Pulga, and De La Cruz; and gross
negligence against Hino, Rego, ECI, Thompson, and Lowe's.
plaintiffs alleged venue was proper in Starr County as
follows: "At least one of the Defendants is
headquartered or resides in this County, and all or a
significant portion of the events giving rise to
Plaintiffs' claims arose in this County. Venue is
therefore proper in Starr County."
defendants, including Lowe's, Hino, ECI, Rego, De La
Cruz, and La Gran Pulga, filed motions to transfer venue to
Cameron County. Lowe's filed both a motion to transfer
venue and a first amended motion to transfer venue. In
summary, Lowe's argued that all or substantially all of
the events or omissions giving rise to the lawsuit occurred
in Cameron County rather than Starr County. According to
Lowe's first amended motion to transfer venue: the
majority of the plaintiffs reside in Cameron County; the
plaintiffs' home where the explosion occurred is in
Cameron County; plaintiffs allege that Hino came to
plaintiff's home in Cameron County to fill the propane
tank that allegedly leaked; plaintiffs allege that Lowe's
removed two gas appliances from plaintiffs' home in
Cameron County, replaced the gas appliances with electric
appliances, and failed to cap the gas lines which allegedly
leaked in the home; and Hino's principal office is in
Cameron County. Lowe's asserted that the "only
factual allegation related to Starr County" was that the
plaintiffs allegedly purchased the tank and regulator from La
Pulga in Rio Grande City, Texas. Lowe's specifically
denied this venue allegation and all other allegations
against La Pulga, stating that "discovery will reveal
that Plaintiffs' claims against La Pulga have no basis in
law or fact, and were improperly asserted in an attempt to
maintain venue in Starr County." Lowe's further
argued that La Pulga was not a resident of Starr County.
Finally, Lowe's argued that the case should be
transferred to Cameron County for the convenience of the
parties and in the interest of justice.
April 18, 2016, the plaintiffs filed a response to the
defendants' motions to transfer venue. The plaintiffs
specifically argued that two of the defendants-La Gran Pulga
and Ramon De La Cruz-resided in Starr County, and both the
tank and the regulator were purchased in Starr County.
According to the plaintiffs, La Gran Pulga was located in
Starr County, and even if it was "an unorganized
business, " venue in Starr County was still proper
because De La Cruz, the owner and operator of La Gran Pulga,
resided in Starr County. The plaintiffs' response
asserted that "Moreover, Plaintiffs attest, under oath,
that they purchased the deficient propane tank and regulator
from La Gran Pulga in Starr County." The response
further asserted that "this same propane tank,
regulator, and component system malfunctioned on Christmas
Day 2015, and, in conjunction with numerous other factors,
caused propane gas to accumulate in Plaintiffs'
home." The response stated that:
Sandra Leos, owner of the now destroyed house, purchased and
had installed at her house a propane tank and regulator from
La Gran Pulga. Before Sandra Leos purchased the tank and
regulator from La Gran Pulga, agents or employees from La
Gran Pulga misrepresented to her that the tank and regulator
were in good working condition. After purchasing the new
propane tank from La Gran Pulga, Sandra coordinated the
removal of the propane tank that had previously supplied gas
to her house. Once installed at her home, the new propane
tank was serviced and filled by Hino Gas. The new propane
tank released gas through a defective regulator that was
manufactured by Rego Products/Engineered Controls. The new
propane tank was the point of origination for the gas that
flowed through lines that were improperly sealed by
Lowe's employees. The propane system, including the tank
and regulator-both purchased in Starr County-is the nexus
connecting all Defendants, and Plaintiffs' purchase of
the propane tank is the first chapter in the series of
transactions or occurrences that resulted in this incident.
That story begins in Starr County. And because Starr County
is "where the principal office of at least one Defendant
is located, " and because Starr County is where "a
substantial part of the events or omissions giving rise to
the claim occurred"; and because the propane system is
the nexus connecting all alleged events into the same
"series of transactions or occurrences, " the story
should end where it began-in Starr County.
(Footnotes omitted). The plaintiffs' response to the
motion to transfer venue was supported by an affidavit
furnished by Sandra Leos which provided in relevant part:
3. I am the owner of the property located at 1682 Calle San
Pedro, San Benito, TX;
4. I purchased a propane tank and a propane regulator
(collectively the "Propane Equipment") from La Gran
Pulga in Starr County, TX. La Gran Pulga was involved in this
transaction. La Gran Pulga is located in Starr County.
5. Before purchasing the Propane Equipment, employees working
on the premises of La Gran Pulga told me that the Propane
Equipment was in good working condition and the tank had no
problems. Relying on the representations of these
individuals, I purchased the Propane Equipment at La Gran
6. After purchasing the Propane Equipment from La Gran Pulga,
I had the propane tank that was already at my property
removed. I had a concrete slab poured on the property, and
the new tank placed on that slab. Previously the tank was
just resting on blocks on the yard.
7. The individuals that I believe to be employees of La Gran
Pulga that were on the premises of La Gran Pulga
misrepresented facts to me regarding the tank and regulator.
Specifically, these individuals told me that the tank and
regulator were in good working order and had no problems.
filed a reply to the plaintiffs' response, generally
alleging that the plaintiffs had not pleaded any
"tenable" cause of action against the Starr County
defendants because, inter alia, La Gran Pulga is a "flea
market, " and Cruz rented "slots" to vendors
who then offered consumers items for sale.
18, 2016, the Starr County trial court held a hearing on the
motions to transfer venue. That same day, the Starr County
court denied the defendants' motions to transfer venue.
Thereafter, Lowe's pursued an interlocutory appeal of
this ruling in the San Antonio Court of Appeals. See
Lowe's Home Ctrs, LLC. v. Trevino, No.
04-16-00357-CV, 2016 WL 3773589, at *1 (Tex. App.-San Antonio
July 13, 2016, no pet.) (per curiam mem. op.); see
also Tex. R. App. P. 28.1; Tex. Civ. Prac. & Rem.
Code Ann. § 15.003 (West, Westlaw through Ch. 49, 2017
16, 2016, the plaintiffs filed a fourth amended petition in
Starr County. In addition to other minor changes, this
petition eliminated the plaintiffs' claims against
discovery in the Starr County case, Lowe's obtained
evidence that it asserts shows that the plaintiffs'
allegations placing venue in Starr County and the sworn proof
supporting those allegations were "fraudulent."
During discovery, Lowe's interviewed Manuel Sierra, who
was the previous owner of Leos's home. Sierra told
Lowe's that when he sold the home to Leos, he left at the
home a propane tank and regulator that he had purchased from
Lone Star Gas in Harlingen, Texas. Records from Lone Star Gas
confirmed that Sierra purchased a propane tank and regulator
from them. A post-accident investigation by the Texas
Railroad Commission confirmed that the tank and regulator in
use at the Leos home at the time of the explosion were the
same products that Sierra had purchased and installed at the
residence. Thus, the tank and regulator at the Leos home were
not purchased at a Starr County flea market, but were instead
the tank and regulator that the former owner of Sandra
Leos's home had installed nine years earlier.
24, 2016, after discovering these facts, Lowe's counsel
contacted one of the attorneys representing the plaintiffs by
telephone and informed that attorney that Lowe's had
discovered that his clients had misrepresented facts
regarding the purchase of the tank and regulator that
affected the trial court's venue determination.
Lowe's counsel advised plaintiffs' counsel that
Lowe's would seek sanctions unless the plaintiffs agreed
to transfer the case to the proper venue, Cameron ...