Appeal from the 189th District Court Harris County, Texas
Trial Court Cause No. 2013-36112
consists of Justices Boyce, Jamison, and Brown.
Hill Jamison, Justice.
issues in this contractual dispute, appellant David Smith
challenges the trial court's denial of his motion to
transfer venue and grant of final summary judgment in favor
of appellees, Brian Smith, Cash Register Sales and Service of
Houston d/b/a CRS Texas, and POS Card Services, LLC. The
trial court rendered summary judgment against David on his
breach of contract claim and in favor of appellees on their
declaratory judgment claims. In a cross appeal, appellees
challenge the trial court's denial of their motion for
costs and attorney's fees under the Texas Declaratory
Judgment Act. Concluding that David presented evidence
raising fact questions regarding the existence and
enforceability of a contract between himself and appellees,
we reverse and remand the portion of the trial court's
judgment granting a declaration that there was no agreement
between the parties. We affirm the trial court's judgment
in all other respects.
and Brian Smith are brothers. Brian owns CRS and POS. CRS
sells point of sale and video surveillance equipment,
software, and related services to merchants. POS sells credit
card processing services provided by banks and financial
institutions to retail merchants. David was a sales agent for
CRS and POS.
leaving that position, David sent a demand letter to CRS
seeking unpaid commissions on four accounts. David contends
that the parties had an oral agreement that he would be
entitled to a commission on "all sales that are ever
paid at any time to the merchants that he considered to be
his, " without regard to whether David made the sale or
still worked for CRS or POS.
receiving the demand letter, appellees filed this declaratory
judgment action in Harris County, Texas seeking six
declarations establishing that David is not (1) an employee
of any of appellees; (2) entitled to commissions for any
merchant accounts under any agreement or Texas
or (3) entitled to recover attorney's fees from
appellees. David filed an answer, motion to transfer
venue, and counterclaim for unpaid commissions. Appellees
filed a motion for summary judgment seeking judgment on
David's breach of contract counterclaim and their
declaratory judgment claims. The trial court denied the
motion to transfer venue and granted the motion for summary
judgment. Appellees then filed a motion for costs
and attorney's fees and entry of final judgment. The
trial court rendered final judgment in favor of appellees,
but did not award costs or fees to appellees.
issues, David challenges the trial court's denial of his
motion to transfer venue and grant of summary judgment in
favor of appellees. Appellees bring one issue in their cross
appeal challenging the trial court's denial of their
motion for costs and attorney's fees.
Venue Objection Waived
first issue, David contends that the trial court erred in
denying his motion to transfer venue because, according to
David, the events giving rise to the parties' claims
occurred in San Antonio, Texas. Appellees argue that David
waived his venue objection in the trial court by taking
"multiple actions that were inconsistent with an intent
to pursue his venue motion or that invoked the judicial power
of the [trial] court."
trial court's order denying the venue motion does not
indicate whether it was denied because the court deemed the
venue objection waived or concluded venue was proper in
Harris County. Thus, we address the waiver issue first.
See Duran v. Entrust, Inc., No. 01-08-00589-CV, 2010
WL 1241093, at *4 (Tex. App.- Houston [1st Dist.] Mar. 25,
2010, pet. denied) (mem. op.); Carlile v. RLS Legal
Sols., Inc., 138 S.W.3d 403, 406 (Tex. App.-Houston
[14th Dist.] 2004, no pet.). We review a trial court's
determination of waiver for an abuse of discretion.
Carlile, 138 S.W.3d at 406.
filing a lawsuit, the plaintiff has the first choice
regarding venue. Id. (citing In re Masonite
Corp., 997 S.W.2d 194, 197 (Tex. 1999), and Wilson
v. Tex. Parks & Wildlife Dep't, 886 S.W.2d 259,
260 (Tex. 1994)). If the plaintiff's choice is not
properly challenged through a motion to transfer venue, venue
is fixed in the county in which the plaintiff filed suit.
objection can be waived in several ways. At issue here is
whether David impliedly waived his venue objection through
actions inconsistent with an intent to pursue the venue
motion. See id. Generally, such actions invoke the
judicial power of the courts. Id. Appellees argue
that David impliedly waived his venue objection by not
diligently requesting a setting or obtaining a ruling on the
venue motion and by participating in discovery, joining a
motion for continuance, and filing a jury
Delay in Requesting Setting and Obtaining Ruling
filing a venue motion has the burden to diligently request a
setting on the motion and obtain a ruling prior to a trial on
the merits. Id. at 408 (citing Tex.R.Civ.P. 87(1)).
A delay in obtaining a hearing provides a basis for the trial
court to deny a venue motion. Id.
filed his combined answer, counterclaim, and motion to
transfer venue on September 25, 2013. The venue motion was
heard approximately eleven months later on August 8,
2014. The trial court did not rule on the motion
at the time of the hearing. On September 12, 2014, David
filed a combined amended answer, counterclaim, and motion to
transfer venue. The trial court denied the venue motion
on February 9, 2015. In the order, the trial court noted the
motion was heard on August 8, 2014, one month before the
amended pleading was filed.
first address appellees' contention that David waived his
venue objection because the trial court ruled on the original
motion and thus David apparently failed to obtain a ruling on
his "live" motion. According to appellees, David
obtained a ruling only on his original motion, which was
superseded by the amended "live" motion.
language in the "motion to transfer venue" section
of the two pleadings is identical. Thus, we do not agree with
appellees that David amended his motion to transfer venue.
Even if he had, an amended motion to transfer venue that is
filed before the trial court rules on a timely original
motion relates back to the original motion. In
re Pepsico, Inc., 87 S.W.3d 787, 794 (Tex.
App.-Texarkana 2002, no pet.). Here, the trial court ruled on
the motion to transfer venue after David filed his
amended pleading, so even if the motion to transfer venue
section of the pleading properly could be construed as an
amended motion, it would relate back to the
original. Therefore, we do not agree that David failed to
obtain a ruling on his "live" motion to transfer
however, waited nearly a year to have his motion to transfer
venue heard and then waited approximately six more months
more to file a proposed order. This delay indicates a lack of
diligence in securing the hearing and obtaining a
ruling. See Carlile, 138 S.W.3d at 408
(noting that a delay of 14 months indicated a lack of
diligence); see also CMH Set & Finish, Inc. v.
Taylor, No. 05-14-01407- CV, 2016 WL 1254063, at *6
(Tex. App.-Dallas Mar. 31, 2016, pet. denied) (mem. op.)
(collecting cases involving delays between one year and 32
months); Whitworth v. Kuhn, 734 S.W.2d 108, 111
(Tex. App.-Austin 1987, no writ) (noting trial court could
have denied motion to transfer venue because movant waited
more than a year to request a hearing).
movant also may impliedly waive his venue objection through
actions that are inconsistent with an intent to pursue it.
Taylor, 2016 WL 1254063, at *6; Carlile,
138 S.W.3d at 408-09. When a movant seeks relief that is
ancillary to the merits or inherently preliminary, courts are
reluctant to find waiver. Taylor, 2016 WL 1254063,
at *6; Carlile, 138 S.W.3d at 406. However, if the
movant seeks relief that invokes the general jurisdiction of
the court to rule on the merits of the parties' claims,
courts may find waiver. See, e.g., Gentry v. Tucker,
891 S.W.2d 766, 768 (Tex. App.-Texarkana 1995, no writ)
("The motion [to transfer venue] will be waived if the
defendant who is filing it, without first insisting upon its
disposition, tries the case on the merits.");
Grozier v. L-B Sprinkler & Plumbing Repair, 744
S.W.2d 306, 310 (Tex. App.-Fort Worth 1988, writ denied)
("[I]nconsistent action resulting in waiver is one which
invokes the general jurisdiction of the court without
reservation of rights asserted by the filing of the plea of
privilege."). Courts review the record as a whole to
determine whether the movant's actions and delay
collectively establish waiver. Taylor, 2016 WL
1254063, at *6; Carlile, 138 S.W.3d at 409.
filed a response to plaintiffs' summary judgment motions
and joined a motion for continuance in which the parties
asserted that they needed "more time to prepare for
trial so that they [could] present their claims and
defenses." David did not condition his response or the
continuance motion on his venue motion, and he did not reurge
his venue objection. These facts-asking the court to deny
motions for summary judgment and requesting a trial
continuance to prepare for trial-do not reflect issues that
are ancillary to the merits or preliminary. See
Taylor, 2016 WL 1254063, at *7 (holding that a
scheduling order signed by the movant addressing deadlines
for "supplemental witness lists, supplemental objections
to designation of deposition testimony, objections to trial
exhibits, and the date of trial" did not involve
ancillary or preliminary matters for purposes of determining
waiver of venue motion). In failing to make the summary
judgment response and continuance motion subject to his venue
motion or to reurge his venue objection in these filings,
David acted inconsistently with an intent to urge his venue
motion and invoked the jurisdiction of the trial court.
See Carlile, 138 S.W.3d at 408-09 (holding that in
filing a motion to compel discovery, motion for continuance,
and response to no-evidence motion for summary judgment not
subject to his venue motion, defendant "invoked the
jurisdiction of the trial court and acted inconsistently with
an intent to insist upon his venue motion").
argues Carlile is distinguishable from the facts of
this case because the defendant in that case filed a motion
for new trial addressing the merits of the case. 138 S.W.3d
at 406-07. But the Carlile court considered that
filing in conjunction with other actions constituting waiver:
delay in securing a hearing and filing a motion to compel
discovery responses, motion for continuance, and response to
no-evidence motion for summary judgment "not conditioned
upon [the] venue motion." Id. at 408-09.
Considering all these things together, the court concluded
that the defendant waived his venue objection. Id.
The Dallas Court of Appeals in Taylor analyzed the
issue similarly and held that the movant waived its venue
objection by delaying eighteen months to seek a hearing and
"by agreeing to a scheduling order that set the case for
trial without making such agreement subject to its venue
objection." 2016 WL 1254063, at *7. Both
Carlile and Taylor are helpful to our
analysis because, as in this case, both cases deal with
multiple actions by the movant indicating, when considered
together, that the movant waived the venue objection.
conclude that the trial court reasonably could have
determined that David's delay in seeking a hearing and a
ruling on his venue motion, along with his filings that were
not subject to his venue objection, amounted to a waiver of
his venue objection. See id. Thus, the trial court
did not abuse its discretion in denying the venue motion.
See id. We overrule David's first issue.
Fact Questions as to Existence and Enforceability of
Contract, Waiver of Other Issues
second issue, David challenges the trial court's grant of
summary judgment in favor of appellees. In their hybrid
no-evidence and traditional motion for summary judgment,
appellees argued that there was no evidence of any element of
David's breach of contract claim and that they
conclusively established ...