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Galindo v. Garner

Court of Appeals of Texas, Fifth District, Dallas

May 14, 2019


          On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-03385

          Before Justices Whitehill, Partida-Kipness, and Pedersen, III



         This appeal arises from a lawsuit that asserts a Dram Shop Act claim, among others. Appellants, [1] who are among the defendants in the suit, bring this accelerated interlocutory appeal from an order denying their motions to transfer venue. See Tex. Civ. Prac. & Rem. Code Ann. § 5.003(b). We affirm.



         On March 19, 2016, Amy Garner (Amy) was driving on Interstate 30 in Fort Worth, which is located in Tarrant County, when her Chevrolet Suburban was struck by a vehicle driven by Jwuan Johnson. Amy was killed in the collision. Four of her children, who were with her at the time, were seriously injured.

         Later that same year, Amy's husband, appellee Norman Garner (Norman), individually, as the representative of her estate, and as next friend of the couple's children, filed a Rule 202 petition in Tarrant County District Court. See Tex. R. Civ. P. 202.1-.5 (authorizing pre-suit deposition in certain circumstances). This petition was heard by the trial court over a year later, on November 30, 2017, and the court signed an order that same day denying the petition.

         Norman, individually, as the representative of Amy's estate, and as next friend of the children, next filed suit against Johnson and Pappas Restaurants, Inc. (Pappas) in Tarrant County District Court. Norman alleged, on information and belief, that Johnson had consumed alcohol shortly before the accident at a Pappadeaux restaurant in Arlington. According to Norman's petition, Pappas served an alcoholic beverage to Johnson even though it was apparent to Pappas that Johnson at the time "was obviously intoxicated to the extent that he presented a clear danger to [him]self and others." Norman asserted a Dram Shop Act claim against Pappas, see Tex. Alco. Bev. Code Ann. § 2.02(b), [2] as well as a negligence and a negligence per se claim.

         A dispute arose between the parties regarding Norman's attempt to depose Pappas's corporate representative. Pappas filed a motion for protection and to quash the deposition, which the court granted on February 9, 2018. A little over a month later, Norman nonsuited the Tarrant County suit and re-filed suit in Dallas County. This suit also listed one of the couple's children, appellee Clara Garner, as a plaintiff, presumably because she had reached majority status.[3]

         The Dallas County suit named as defendants (i) Johnson, (ii) Pappas, (iii) PHCG Investments, and (iv) a group of eleven employee bartenders or managers referred to herein as the Employee Defendants.[4] Appellees' claims against the foregoing defendants mirrored those they had previously asserted in their Tarrant County suit against Johnson and Pappas.[5] They also asserted that venue was appropriate in Dallas County "since some Defendants resided [there] at the time the cause of action occurred." See Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a)(2) (providing for venue in county of defendant's residence at time cause of action accrued if defendant is a natural person). Moreover, appellees alleged that Employee Defendant Saul Perea "is an individual residing in Dallas County," and they alleged the same with respect to Employee Defendant Edward Carrigan.

         Johnson, PHCG, Pappas, and the Employee Defendants, except for Employee Defendant Stephen Powell, each filed a motion to transfer venue from Dallas County to Tarrant County. The motions asserted venue was proper in Tarrant County because (i) the subject accident occurred there, id. § 15.002(a)(1), and (ii) Johnson and appellees reside there, id. § 15.002(a)(2), (a)(4). In addition, PHCG's and Pappas's motions urged that appellees failed to allege the county in which PHCG and Pappas had their principal office. Id. § 15.002(a)(3). Moreover, each of the Employee Defendants, except Employee Defendant Charles Bray, specifically denied that he or she resided in Dallas County on the date appellees' cause of action accrued. As for Bray, his motion noted that appellees' petition alleged that Bray resided in Orange County, not in Dallas County.

         In addition, each of the venue motions, except Johnson's, urged that appellees failed to plead a viable Dram Shop Act claim against the Employee Defendants-and in particular, against defendants Perea and Carrigan, the two Employee Defendants alleged to reside in Dallas County. Finally, each of the motions, except Johnson's, argued that appellees failed to meet their burden of establishing proper venue under section 15.003 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 15.003(a)(1)-(4).

         On October 25, 2018, the district court heard the foregoing motions, except for Johnson's, Carrigan's, and Bray's. The hearing was conducted in part that day. However, the court deferred completion of the hearing (i) to permit appellees to cure a defect in an affidavit they previously offered in their opposition to the motions to transfer, and (ii) to allow Johnson, Carrigan, and Bray to set their motions for hearing so that the court could determine all pending motions at once. On October 31, 2018, before the venue hearing resumed, Bray filed a motion to dismiss appellees' claims against him pursuant to Rule 91a of the Texas Rules of Civil Procedure and set that motion for hearing on December 7, 2018.

         Appellees filed a first amended petition on December 3, 2018, which alleged that Bray resides in Dallas County. However, they non-suited Bray later that same day, and four days after that, the court signed an order effectuating the nonsuit. On December 11, 2018, appellees filed a second amended petition that again named Bray as a defendant. Around this same time, defendants Johnson and Carrigan withdrew their pending motions to transfer.

         The venue hearing resumed on December 18, 2018. That same day, following the hearing, the trial court signed an order denying the defendants' motions to transfer venue. PHCG, Pappas, and nine of the Employee Defendants have appealed the court's ruling.[6]



         The outcome of this appeal depends on our determination of whether appellees satisfied the requirements of Civil Practice and Remedies Code section 15.003(a), which applies in a suit in which there is more than one plaintiff. This statute "takes as its starting point a 'person who is unable to establish proper venue.'" Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 602 (Tex. 1999) (citing Act of May 8, 1995, 74th Leg., R.S., ch. 138, § 1, 1995 Tex. Gen. Laws 978, 979 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 15.003(a)).[7] Accordingly, the trial court "first has to determine whether a plaintiff can independently establish proper venue." Id. "This determination . . . is made using venue proof standards-if the plaintiff offers prima facie proof through pleadings and affidavits that venue is proper, the inquiry is over." Id.; cf. Tex. Civ. Prac. & Rem. Code Ann. § 15.064(a) ("The court shall determine venue questions from the pleadings and affidavits."). Second, "when a plaintiff cannot establish proper venue, section 15.003(a) expressly places the burden on the plaintiff to 'establish' four elements before she can join venue for the suit." Surgitek, 997 S.W.2d at 602; accord Tex. Civ. Prac. & Rem. Code Ann. § 15.003(a)(1)-(4).

         In an interlocutory appeal of a trial court's determination under the statute, we must "determine whether the trial court's order is proper based on an independent determination from the record and not under either an abuse of discretion or substantial evidence standard." Tex. Civ. Prac. & Rem. Code Ann. § 15.003(c)(1). In other words, our "review of the merits" of the trial court's "joinder determination should be de novo." Surgitek, 997 S.W.2d at 603.[8] In conducting this review, we must consider the entire record, including any evidence presented at the hearing. Id.

         A. Pleading and Proof of Venue Facts

         We begin by considering whether each plaintiff independently established proper venue. See Tex. Civ. Prac. & Rem. Code Ann. § 15.003(b)(1). To make this determination, we will look to the rules generally applicable to motions to transfer venue. When such a motion is filed, "the initial burden of proof that venue is maintainable in the county of suit is on the plaintiff." WTFO, Inc. ...

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