Court of Appeals of Texas, Fifth District, Dallas
KERRI D. CONDIE, P.C., Appellant
MICHELLE MCLAUGHLIN, Appellee
Appeal from the 193rd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-17-05911
Justices Brown, Schenck, and Pedersen, III
J. SCHENCK JUSTICE
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.
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.
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.
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.
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.
conducting a non-evidentiary hearing,  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.
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. P.C. filed responses with attachments to
McLaughlin's motion. After conducting a hearing on
McLaughlin's motion, on November 30, 2017, the trial court
granted McLaughlin's motion for traditional summary
judgment. This appeal followed.
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.
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.
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 ...