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Condie v. McLaughlin

Court of Appeals of Texas, Fifth District, Dallas

June 4, 2019

KERRI D. CONDIE, P.C., Appellant
v.
MICHELLE MCLAUGHLIN, Appellee

          On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-05911

          Before Justices Brown, Schenck, and Pedersen, III

          MEMORANDUM OPINION

          DAVID J. SCHENCK JUSTICE

         Kerri D. Condie, P.C. (P.C.) appeals from a take-nothing summary judgment on its claim for breach of contract against appellee Michelle McLaughlin. In its first issue, P.C. argues the 219th District Court of Collin County erred in granting McLaughlin's motion to transfer venue to Dallas County. In its second issue, P.C. urges summary judgment in favor of McLaughlin was improper because she failed to establish the affirmative defense of res judicata. We reverse the November 30, 2017 judgment of the 193rd District Court of Dallas County, remand this cause to the 193rd District Court of Dallas County, and order that the cause be transferred to the 219th District Court of Collin County.

         Background

         Kerri D. Condie is an attorney who formed and owns P.C. On August 1, 2014, P.C.'s charter was forfeited for failure to comply with the tax code.

         On July 24, 2015, McLaughlin sued Kerri D. Condie in the 193rd District Court of Dallas County, alleging breach of a contract to provide legal secretary and assistant services to Condie. Condie answered, but she did not assert any counterclaim against McLaughlin, nor did she assert a third-party claim against P.C. or in any way argue that she was not a party to the contract or the appropriate party to the suit. McLaughlin sent requests for admission to Condie. Condie did not respond to McLaughlin's requests for admission. McLaughlin moved for summary judgment, relying on Condie's deemed admissions. On January 20, 2016, the 193rd District Court granted McLaughlin's motion.

         On December 30, 2016, P.C.'s charter was reinstated. The day before, on December 29, 2016, P.C. initiated the underlying suit against McLaughlin in Collin County, alleging McLaughlin breached a contract between P.C. and McLaughlin for McLaughlin to provide legal secretary and assistant services to P.C. McLaughlin filed a motion to transfer venue to Dallas County, and subject thereto, her answer. In her motion, McLaughlin objected to venue in Collin County, denied any venue facts asserted by P.C. that Collin County was the proper county, and requested the case be transferred to Dallas County based on the summary judgment she had previously obtained against Condie on McLaughlin's breach of contract claim. McLaughlin argued P.C.'s suit was "nothing more than a compulsory third-party claim that should have been brought in the original suit." She further argued Dallas County was a county of proper venue because it was the county of her residence at the time the action accrued. Finally, she argued the transfer would not cause a hardship or injustice for any other party and that it would serve judicial economy for the 193rd District Court to preside over this matter "as the facts are identical to those previously litigated." As part of her answer, McLaughlin asserted the affirmative defenses of res judicata, collateral estoppel, and capacity.

         P.C. responded to McLaughlin's motion to transfer venue, attaching a declaration by Condie, asserting that she is the president and shareholder of P.C., McLaughlin contracted with P.C. in February or March 2014, and McLaughlin performed the contractual services and breached the contract at issue at P.C.'s office in Collin County.

         After conducting a non-evidentiary hearing, [1] the 219th District Court of Collin County granted McLaughlin's motion to transfer venue and ordered the case transferred to the 193rd Judicial District Court of Dallas County. The order did not state the basis for the ruling other than to specifically exclude section 15.002(b) of the civil practice and remedies code as a basis.[2]

         In the 193rd District Court, McLaughlin moved for traditional summary judgment on the affirmative defense of res judicata and for no-evidence summary judgment, arguing P.C. had no evidence on at least one of three elements of its breach of contract claim.[3] P.C. filed responses with attachments to McLaughlin's motion. After conducting a hearing on McLaughlin's motion, [4]on November 30, 2017, the trial court granted McLaughlin's motion for traditional summary judgment. This appeal followed.

         Discussion

         In its first issue, P.C. challenges the 219th District Court's decision to grant McLaughlin's motion to transfer venue from Collin County to the 193rd District Court in Dallas County. P.C. contends that McLaughlin failed to support her motion with sufficient proof of her venue facts and maintains that P.C. supported the venue of the suit in Collin County with ample proof. McLaughlin responds that P.C.'s claims are no more than compulsory third-party claims that should have been brought in the previous lawsuit in Dallas County and that even if venue were not fixed in Dallas County, the trial court could have properly determined that transfer to Dallas County would not cause a hardship or an injustice for any other party under section 15.002(b) of the civil practice and remedies code.

         We review a trial court's decision to grant a motion to transfer venue de novo. See Jaska v. Tex. Dep't of Protective & Regulatory Servs., 106 S.W.3d 907, 909 (Tex. App.-Dallas 2003, no pet.). We look to determine if there is any probative evidence venue would have been proper in the county chosen by the plaintiff. See id. If so, it is reversible error to grant the venue motion. See Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b).

         Venue may be proper under general, mandatory, or permissive venue rules. See Perryman v. Spartan Tex. Six Capital Partners, Ltd., 546 S.W.3d 110, 130 (Tex. 2018) (citing Tex. Civ. Prac. & Rem. Code Ann. §§ 15.001-.040). The plaintiff makes the first choice of venue by filing the lawsuit. See id. When the plaintiff files in a "proper" venue, "that choice of venue should be honored absent a mandatory venue ...


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