Reversed and Remanded and Opinion Filed August 22, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-00532-CV
GREYSTAR STUDENT HOUSING GROWTH AND INCOME FUND OP, LP, GREYSTAR DEVELOPMENT GROUP, LP, GREYSTAR DEVELOPMENT CENTRAL, LLC, ET AL., Appellants V. BRITTNEY NOVA, ET AL., Appellees
On Appeal from the County Court at Law No. 2 Dallas County, Texas Trial Court Cause No. CC-23-03924-B
MEMORANDUM OPINION Before Justices Partida-Kipness, Pedersen, III, and Carlyle Opinion by Justice Partida-Kipness In this interlocutory appeal, we must decide whether the trial court correctly
determined venue is proper in Dallas County. Nova1 sued the Greystar Appellants,
United Forming, Inc. (UFI), Drew Kelley, and Clint Bordner (together, Appellants)
1 Appellees are Brittney Nova, Individually and as Dependent Administrator and Personal Representative of the Estate of Michael Delgado and Personal Representative and Next Friend of E.D., Minor Child, Michael Croce, and Tanya Delgado. We refer to Appellees together as “Nova,” unless otherwise indicated. in Dallas County.2 Appellants moved to transfer the case to Travis County, asserting
improper venue in Dallas County. The trial court denied Appellants’ motions.
Appellants raise a single issue on appeal, claiming the trial court erred in denying
their motions to transfer. After reviewing the record, we agree. We conclude Nova
did not establish venue is proper in Dallas County, while Appellants established
venue in Travis County. We reverse the trial court’s judgment and remand the case
with instructions to transfer to Travis County.
BACKGROUND
This suit arises from the unfortunate death of Michael Delgado. On March 2,
2023, Delgado was riding his bicycle near a construction site on Rio Grande Street
in Austin, Texas. As Delgado was riding, he was struck by a large piece of debris
that was allegedly blown off the construction above. Delgado was seriously injured,
and he died two days later. On March 31, 2023, Brittney Nova, individually, as
administrator of Delgado’s estate, and as personal representative of Delgado’s minor
child, and Tanya Delgado (Michael’s mother) sued several defendants in Travis
County probate court for the events leading to Delgado’s death.3
2 The “Greystar Appellants” are: Greystar Student Housing Growth and Income Fund OP, LP; Greystar Development Group, LP; Greystar Development Central, LLC; Greystar GP II, LLC; Greystar Real Estate Partners, LLC; Greystar Worldwide, LLC; Greystar Investment Group, LLC; GREP Texas, LLC; Greystar Development and Construction, L.P.—Union on 24th Contractor Series; Greystar Development & Construction, L.P.; GEdR at Union on 24th, LLC; GEdR at Union on San Antonio, LLC; Greystar Development, LLC; GREP General Partner, LLC, (named as Greystar Real Estate Partners GP, LLC); Drew Kelley; and Clint Bordner. We exclude from this list defendant Greystar Management Services, LLC, because they are not properly before this Court, as we explain below. 3 The original defendants were B&D Contractors, Inc., Haegelin Wehmeyer Construction, Ltd., Lehne Construction, Inc., and Sun Star Services, LLC. –2– In that suit, plaintiffs alleged proper venue in Travis County because “all or a
substantial part of the events, acts and/or omissions giving rise to this lawsuit
occurred in Travis County.” Plaintiffs alleged various negligent acts, including
failing to secure the construction site, failing to take precautionary measures against
high winds, and failing to implement, enforce, or follow safety policies and
standards.
The plaintiffs later nonsuited the Travis County suit and filed the present suit
in Dallas County on June 23, 2023. Plaintiffs added Michael Croce (Delgado’s
father) as a claimant. Plaintiffs added as defendants the Greystar Appellants, UFI,
Landmark Construction Management, LLC, Drew Kelley, and Clint Bordner.
In the Dallas County original petition, Nova removed all references to Austin
or Travis County. Nova generally alleged “[a] substantial part of the events or
omissions giving rise to the claim occurred in Dallas County” and “[o]ne of more of
Defendants’ principal offices are located in Dallas County.” Beyond these general
statements, Nova did not make any allegations specifically tying the incident or any
defendant to Dallas County. Regarding the Greystar entities, Nova alleged each has
a “principal place of business in Texas.” Regarding UFI, Nova alleged it is a foreign
company “licensed to do business in the State of Texas.”
The facts section of Nova’s Dallas County petition again alleged Delgado was
struck and killed by a piece of debris that fell from a construction site during high
winds. Nova alleged the defendants ignored wind and weather advisories and failed
–3– to take precautions. However, the petition omitted any reference to the location of
the accident. Nova again alleged negligence and gross negligence by the defendants
in failing to properly secure the job site and follow safety standards, among other
acts. However, none of the factual or legal allegations discuss any acts, events, or
omissions occurring in Dallas County (or Travis County).
Appellants filed motions to transfer venue in response. Therein Appellants
alleged venue was not proper in Dallas County because Nova had not sufficiently
pleaded venue facts, had not established a substantial part of the events or omissions
giving rise to Nova’s claims had occurred in Dallas County, and had not established
any named defendant had a principal office in Dallas County. Appellants requested
the court transfer the case to Travis County because at least one defendant had a
principal office there and all or a substantial part of the events or omissions giving
rise to Nova’s claims occurred in Travis County. Appellants also argued the case
should be transferred to Travis County based on the convenience of the parties and
the interests of justice. See TEX. CIV. PRAC. & REM. CODE § 15.002(b). Appellants
attached Nova’s original Travis County petition to the motions to transfer.
Nova filed an omnibus response to the motions to transfer. Nova primarily
argued at least one of the defendants has a principal office in Dallas County,
supporting venue there. Nova attached evidence in support, relying heavily on
deposition and trial testimony in a prior Dallas County case involving certain
Greystar entities. Nova also attached contracts related to that prior case and
–4– screenshots from Greystar and UFI websites describing some employees and offices.
Nova argued the employees’ prior testimony supported they are “decision makers”
in a Greystar office in Dallas County, making venue appropriate there. Nova further
argued the court should not transfer the case based on convenience. Nova
alternatively requested the court continue the hearing on the motions to transfer to
allow venue-related discovery.
Appellants replied, arguing Nova failed to properly plead venue facts or bring
forth evidence any defendant had a principal office in Dallas County to support
venue. The trial court held a hearing on the motions on December 15, 2023. The trial
court deferred ruling, and in the interim, Nova amended her petition three times,
adding numerous defendants. On April 19, 2024, the trial court signed an order
denying Appellants’ motions to transfer venue. This appeal followed. See TEX. CIV.
PRAC. & REM. CODE § 15.003(b) (permitting interlocutory appeal of trial court’s
venue determination in multi-plaintiff suits).
STANDARD OF REVIEW
In an interlocutory appeal of a trial court’s venue ruling under Section 15.003
of the Civil Practice and Remedies Code, the appellate court 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 § 15.003(c)(1). Accordingly, our review is
de novo. Deere & Co. v. Bernal, No. 05-22-00916-CV, 2023 WL 195547, at *3
–5– (Tex. App.—Dallas Jan. 17, 2023, pet. denied) (mem. op.). In conducting this
review, we consider the entire record, including any evidence presented at the
hearing. Id.
ANALYSIS
I. Proper Appellants
Before discussing the merits, we must address the proper parties to this appeal.
In their notice of appeal and briefing, the Greystar Appellants included “Greystar
Management Services, LLC.” However, this defendant was added in Nova’s First
Amended Petition, filed more than two months after the hearing on the other
Greystar defendants’ motions to transfer. Furthermore, this defendant is not included
in the caption or the body of the order denying the motions to transfer that gives rise
to this interlocutory appeal. There is nothing in the record to indicate the trial court
intended to include Greystar Management Services, LLC in its order denying the
motions to transfer.
The filing of a notice of appeal invokes the appellate court’s jurisdiction over
all “parties to the trial court's judgment or order appealed from.” TEX. R. APP. P.
25.1(b) (emphasis added). Greystar Management Services, LLC is not a party to the
trial court’s order forming the basis of this interlocutory appeal. See TEX. CIV. PRAC.
& REM. CODE § 15.003(b) (permitting interlocutory appeal of trial court’s venue
determination in multi-plaintiff suits). There is no basis for Greystar Management
Services, LLC’s appeal, and we lack jurisdiction over that defendant. Accordingly,
–6– we dismiss for want of jurisdiction the appeal as to Greystar Management Services,
LLC.
II. The Trial Court Erred in Denying the Motions to Transfer Venue
In their sole issue, Appellants contend the trial court erred in denying their
motions to transfer venue. After reviewing the record, we agree.
A. Venue
Under the relevant portions of the venue statute, all lawsuits shall be brought:
(1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; [or]
(3) in the county of the defendant’s principal office in this state, if the defendant is not a natural person.
TEX. CIV. PRAC. & REM. CODE § 15.002(a)(1), (3). When there are multiple
plaintiffs, as here, each must independently establish proper venue. TEX. CIV. PRAC.
& REM. CODE § 15.003(a).
Generally, the plaintiff’s choice of venue cannot be disturbed if the suit is
initially filed in a county of proper venue. Deere & Co., 2023 WL 195547, at *2
(citing Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 260-61 (Tex. 1994)).
Once the defendant specifically challenges the plaintiff’s choice of venue, the
plaintiff has the burden to present prima facie proof that venue is proper in the county
of suit. Id. (citing TEX. R. CIV. P. 87(3)(a); Union Pac. R. Co. v. Stouffer, 420 S.W.3d
233, 239 (Tex. App.—Dallas 2013, pet. dism’d)). A plaintiff satisfies this burden
“when the venue facts are properly pleaded and an affidavit, and any duly proved
–7– attachments to the affidavit, are filed fully and specifically setting forth the facts
supporting such pleading.” Id. (quoting TEX. R. CIV. P. 87(3)(a); Roach v. Jackson,
No. 05-20-00762-CV, 2020 WL 7258061, at *3 (Tex. App.—Dallas Dec. 10, 2020,
pet. denied) (mem. op.)). This prima facie proof is not subject to rebuttal, cross-
examination, impeachment, or disproof. Id. (citing Ford Motor Co. v. Johnson, 473
S.W.3d 925, 928 (Tex. App.—Dallas 2015, pet. denied)).
However, if the plaintiff fails to discharge its burden, the right to choose a
proper venue passes to the defendant, who must then prove venue is proper in the
defendant’s chosen county. Id. (citing In re Mo. Pac. Ry. Co., 998 S.W.2d 212, 216
(Tex. 1999); Ford Motor Co., 473 S.W.3d at 928.). Venue is determined based on
the facts existing at the time the cause of action that is the basis of the suit accrued.
TEX. CIV. PRAC. & REM. CODE § 15.006; Ford Motor Co., 473 S.W.3d at 930.
Furthermore, the trial court must base its venue determination on the last timely-
filed pleading prior to the hearing on the motion to transfer. See In re Stephens, No.
05-20-00833-CV, 2021 WL 1904324, at *6 (Tex. App.—Dallas May 12, 2021, orig.
proceeding) (citing In re Hardwick, 426 S.W.3d 151, 157 (Tex. App.—Houston [1st
Dist.] 2012, orig. proceeding)).
B. “Principal office”
Nova primarily relies on subsection (a)(3) of the general venue statute to argue
one or more of the defendants have a principal office in Dallas County. TEX. CIV.
PRAC. & REM. CODE § 15.002(a)(3). “Principal office” means: “a principal office of
–8– the corporation, unincorporated association, or partnership in this state in which the
decision makers for the organization within this state conduct the daily affairs of the
organization. The mere presence of an agency or representative does not establish a
principal office.” Id. § 15.001(a).
A corporation may have more than one principal office in this state. Deere &
Co., 2023 WL 195547, at *2 (citing In re Mo. Pac. Ry. Co., 998 S.W.2d at 217).
However, even though “a principal office” suggests there can be more than one
office, the word “principal” indicates some sort of primacy. Id. To establish venue
based on a principal office, the plaintiffs must show the employees in the county
where the lawsuit was filed (1) are “decision makers” for the company, and (2) have
“substantially equal responsibility and authority” relative to other company officials
within the state. Id. (citing Stouffer, 420 S.W.3d at 240). “Decision makers” who
conduct the daily affairs are different kinds of officials than agents or
representatives, and “daily affairs” does not mean relatively common, low-level
management decisions. Id. That person need not be a C-suite person but must be
higher than a low-level manager who makes only routine, non-policy decisions. In
re Mo. Pac. Ry. Co., 998 S.W.2d at 217, 220–21. And, a principal office cannot be
clearly subordinate to and controlled by another Texas office. Roach, 2020 WL
7258061, at *7 (citing In re Mo. Pac. Ry. Co., 998 S.W.2d at 221).
Importantly, “[a] party cannot prove a prima facie case that a county has a
principal office without evidence of the corporate structure and the authority of the
–9– officers in the county of suit as compared with the remainder of the state.” In re Mo.
Pac. Ry. Co., 998 S.W.2d at 220.
To determine whether Nova met her burden to show proper venue in Dallas
County based on a defendant having a principal office there, we begin by reviewing
Nova’s original petition, the operative pleading at the time of the hearing on the
motion to transfer. See In re Stephens, 2021 WL 1904324, at *6. Therein, Nova
summarily pleaded “One or more of Defendants’ principal offices are located in
Dallas County.” Nova did not allege any specific defendant had a principal office in
Dallas County. Instead, Nova alleged several of the defendants have “a principal
place of business in Texas.” (emphasis supplied). The only other references to Dallas
are the allegations that some of the Greystar defendants could be served with process
through their registered agent, CT Corporation System, in Dallas.
Nova did not allege any specific facts connecting the suit to Dallas County.
The petition does not identify an office of any named defendant in Dallas County or
allege any facts to show that any such office is a principal office. It does not allege
any specific defendant has “decision makers” in Dallas County or conducts its daily
affairs from an office there, as opposed to another office in Texas. Nova generally
alleged defendants ignored warnings about the potential for high winds and failed to
take precautions. Nova then alleged “Greystar” failed to ensure construction
equipment and job sites are properly secured in adverse weather. Nova alleged the
defendants were negligent in various respects, e.g. “failing to properly maintain their
–10– job site,” “failing to properly monitor the weather conditions at the job site,” and
“failing to follow safety regulations and industry standards designed to protect
against falling debris, equipment, and/or tools.” However, Nova ascribed this
conduct to defendants collectively, without specifying any acts by any decision
makers of any specific entity in Dallas County.
Appellants argue Nova’s venue pleadings are so woefully deficient they do
not meet Rule 87’s pleading requirements for venue. See TEX. R. CIV. P. 87(3) (“All
venue facts, when properly pleaded, shall be taken as true unless specifically
denied…Prima facie proof is made when the venue facts are properly pleaded and
an affidavit, and any duly proved attachments to the affidavit, are filed fully and
specifically setting forth the facts supporting such pleading.”) (emphasis added).
Appellants contend the pleadings are so deficient we should reverse on that basis
alone. However, we need not decide the issue, as we conclude that, even if Nova
sufficiently pleaded venue facts, she did not present prima facie proof of venue upon
challenge by Appellants.
In response to the motions to transfer, Nova submitted evidence to attempt to
show a Greystar entity or UFI have a principal office in Dallas County. Nova relied
heavily on deposition excerpts, trial testimony, and documents from the Flores case
involving a 2019 crane collapse in Dallas.4 Nova pointed to deposition testimony
4 Mason Flores et al. v. Bigge Crane and Rigging et al., No. CC-19-04006-B (Dallas Co. Ct. at Law No. 2). –11– from Laird Sparks in Flores wherein Sparks stated he is the Senior Managing
Director of Development for “Greystar,” but did not explain what specific Greystar
entity is referenced. Sparks further testified his office is in Irving, and his job is to
go out and look for sites to develop new projects. Nova asserted Sparks’s office is
located “at the Greystar regional office in Irving, Texas” and included a footnote
reference to a Greystar webpage purporting to establish that fact. However, a review
of that web link reveals Greystar has offices in Austin, Dallas, Houston, and San
Antonio.5
To show Sparks is a “decision maker,” Nova argued Sparks is often selected
to serve as vice president for Greystar entities and sign contracts on their behalf. In
support, Nova attached contracts from other projects bearing Sparks’s signatures as
vice president for “GS Gabriella Holding, LLC,” “Gabriella Greystar, LLC,”
“Gabriella Nationwide, LLC,” and “Gabriella Tower, LLC.” However, none of these
entities are named defendants in this suit, and none of the cited testimony explains
Sparks’s authority referenced to a named defendant in this case. Instead, these
contracts relate to other Greystar entities involved in the Flores litigation. Nova
argues these activities in Flores imply Sparks must have “companywide authority”
on the “development side” of the Greystar entities and there must not be any other
Greystar official with greater authority. Nova’s assertions are little more than
5 An exhibit attached to Nova’s response shows a similar screenshot indicating offices in at least Austin and Dallas and suggesting an office in San Antonio. Furthermore, at the hearing on the motion to transfer venue, Nova’s counsel acknowledged “Greystar” had an office or employees in Houston. –12– surmise and conjecture and do not constitute probative evidence. See Marathon
Corp. v. Pitzner, 106 S.W.3d 724, 728 & n.7-8 (Tex. 2003).
On appeal, Nova cites to many other portions of Sparks’s deposition
testimony in the Flores suit. While Sparks’s deposition was attached to Nova’s
response to the motion to transfer, Nova did not cite or rely on many of the deposition
excerpts it now relies on in this Court. However, even considering those excerpts,
this additional testimony is not probative on whether any Greystar defendant had a
principal office in Dallas County. Again, Sparks’s testimony relates to his role in
developing the property in the Flores litigation, involving a 2019 incident for a
Dallas County property. The testimony does not reveal the corporate structure of any
named Greystar defendant or the authority of Sparks or his employer with respect to
the other Greystar offices in Texas. In re Mo. Pac. Ry. Co., 998 S.W.2d at 220.6
Nova next relied on trial testimony from Toni Eubanks in the Flores case and
screenshots from webpages related to Eubanks. Eubanks testified she worked for
“Greystar Property Management” as of June 9, 2019, the date of the crane accident
6 Three months after the hearing on the motion to transfer venue, Nova filed a motion to compel venue discovery responses from the Greystar defendants. Nova attached a declaration by Sparks filed in the Flores suit. In that declaration Sparks states he is the Senior Managing Director – Development at Greystar Development & Construction, LP and lists an Irving address. This was not part of Nova’s response to the motion to transfer venue, though Nova relies on it in this Court to support its “principal office” argument. However, if even considered by the trial court or this Court, the declaration does little more than establish Sparks’s employer, title, and an Irving address. It speaks nothing as to that entity’s corporate structure, the Irving office’s relation to other Texas offices, or the primacy or subordination of the Irving office. See In re Mo. Pac. Ry. Co., 998 S.W.2d at 220. And, the declaration was executed in April 2022, more than one year prior to the incident in this case. See TEX. CIV. PRAC. & REM. CODE § 15.006; Ford Motor Co., 473 S.W.3d at 930 (venue is determined based on the facts existing at the time the cause of action that is the basis of the suit accrued). –13– in Flores. “Greystar Property Management” is not a named defendant in Nova’s
original petition (or any other petition). It is unclear whether “Greystar Property
Management” is a distinct entity or a subdivision of some other Greystar entity. At
the time of her Flores trial testimony (April 21, 2023), Eubanks indicated she
currently works for “Greystar Real Estate Partners under the property management
owner.”7 She further testified that in 2019 she was the executive director over the
“central territory” for the management company.8 She stated she is not a “low-level
person at Greystar.” At that time (2019), Eubanks was in charge of Texas, and
several other states with the property management company. The webpage
screenshots describe Eubanks as “Executive Director at Greystar” with a “Dallas-
Fort Worth Metroplex” descriptor.
As with Sparks, we find the evidence relied upon by Nova with respect to
Eubanks is not probative. Initially, we note the testimony of Eubanks in the Flores
case describes her position and authority in 2019. We are required to examine venue
facts at the time the cause of action accrued. TEX. CIV. PRAC. & REM. CODE § 15.006.
Thus, the relevant date for determination of a principal office in Dallas County is
March 2, 2023, when the accident occurred. Furthermore, even if that trial testimony
7 Two named defendants here include the phrase “Greystar Real Estate Partners”—Greystar Real Estate Partners GP, LLC and Greystar Real Estate Partners, LLC. It is unclear whether Eubanks’s reference to “Greystar Real Estate Partners” means one of these named defendants. Regardless, it does not affect our analysis. 8 Sparks’s deposition testimony indicated that in 2019, Eubanks worked in the same Irving office with Sparks. –14– supports that Eubanks was a decision maker at one of the named Greystar defendants
in March 2023, the evidence is not probative on any particular Greystar entity’s
corporate structure or the authority of Eubanks or her employer with respect to the
other Greystar Texas offices. In re Mo. Pac. Ry. Co., 998 S.W.2d at 220. Similarly,
the screenshots leave only surmise and speculation as to Eubanks’s specific
employer, her authority, or the authority of any Greystar office. See id.
Nova also included a screenshot from a Greystar website for Lance Hanna
designating him as “Managing Director – U.S. Central Development.” Nova asserted
Hanna “appears to work in Dallas County.” Nova similarly included a screenshot for
Alaina Emley, which designates her as “Managing Director – Revenue
Management.” Nova argued “it seems clear that at least one Greystar defendant has
a principal office in Dallas County.” However, neither of these screenshots are
probative on which named defendant Hanna or Emley worked for, their specific job
duties or authority, the corporate structure of any Greystar entity, or the relationship
or authority of any Greystar office with respect to any other. See In re Mo. Pac. Ry.
Co., 998 S.W.2d at 220.
In its response to the motions to transfer, Nova further argued defendant UFI
“appears to have a principal office in Dallas County.” Nova again relied on a
webpage screenshot, this time from www.unitedforming.com. The screenshot shows
three employees and their purported titles: “Jose Rodriguez – Dallas-Fort Worth
Area Safety Manager; Luis Paniagua – Austin Area Safety Manager; and Armando
–15– Urbina – Dallas-Fort Worth Area Manager.” Nova did not provide any evidence
specifying whether UFI even has an office in Dallas County, the corporate structure
of UFI, or the authority of any UFI office compared to another. Nova again relies on
speculation to conclude UFI has a principal office in Dallas County.
None of the foregoing evidence meets the supreme court’s requirements to
establish any named defendant had a principal office in Dallas County. In re Mo.
Pac. Ry. Co., 998 S.W.2d at 220-21 (that one division superintendent who was
identified by defendant railroad as a “decision maker” had office in plaintiffs’ chosen
county was insufficient to establish that chosen county was location for a principal
office for railroad in comparison with responsibility and authority exercised by
railroad officials elsewhere in state, as required to establish prima facie case for
venue); Stouffer, 420 S.W.3d at 242-44 (plaintiffs in case against railroad did not
demonstrate that superintendent and senior manager in Dallas divisions had
authority substantially equal to others in the state; although plaintiffs proved the
Dallas divisions did not report to Harris County office, this did not support a
conclusion that the superintendent and senior manager had comparable authority to
the executives in Harris County, therefore plaintiffs failed to establish prima facie
that Dallas County was a “principal office” for the railroad).
–16– Nova relies largely on our decisions in Roach v. Jackson9 and Deere & Co. v.
Bernal10 in support of its argument. We find these cases distinguishable. Roach
involved a single corporate entity, Estes Express Lines with sixteen Texas shipping
terminals, two of which were located in Dallas County. Id. at *1. Estes argued it had
no principal office in Texas at all. Id. at *5. Estes’s corporate representative
(Sanderson) testified he officed at the Dallas terminal. Id. at *6. Sanderson provided
specific testimony on the corporate structure of Estes. Id. Sanderson also detailed
his role as district manager and that he directed the various Texas shipping terminals,
including their managers and activities and was the “go-to” person in Texas for the
terminal managers. Id. Sanderson supervised Estes’s activities in a three-state region
including the drivers used on a daily basis to deliver freight and ways to control
costs. Id.
Sanderson also testified that a regional vice-president (Collins) officed at the
Dallas terminal and was the highest-ranking Estes employee in Texas. Id. Sanderson
explained Collins directed the district operations managers and made decisions for
Estes on a day-to-day basis according to guidelines given by the Virginia corporate
office. Id. Sanderson also testified there were no other Texas terminals with more
district or regional managers making decisions on behalf of Estes in Texas. Id. at *7.
9 Roach v. Jackson, No. 05-20-00762-CV, 2020 WL 7258061 (Tex. App.—Dallas Dec. 10, 2020, pet. denied) (mem. op.). 10 Deere & Co. v. Bernal, No. 05-22-00916-CV, 2023 WL 195547, at *2 (Tex. App.—Dallas Jan. 17, 2023, pet. denied). –17– This Court concluded Sanderson and Collins were “higher level functionaries” that
performed duties sufficient for decision-maker status, and the plaintiffs’ evidence
showed no other Texas office had higher level management authority than or control
over the Dallas office. Id. at *8.
Deere also involved a single corporate entity that was sued in Dallas County
based on the presence of a large regional distribution center there. Deere & Co.,
2023 WL 195547, at *1. Affidavit and deposition testimony described the corporate
structure and operations of Deere in Texas. Id. at *4-6. The manager of the Dallas
regional distribution center supervised over fifty employees, including several
supervisors, was responsible for a large facility, and served Deere dealerships and
customers in several states. Id at *6. The manager did not have a Texas supervisor.
Id. at *1. Based on this evidence, this Court concluded the plaintiffs established the
distribution center’s manager was a decision maker. Id. at *6-7. And, the evidence
also supported the Dallas facility was not clearly subordinate to and controlled by
another Deere office in Texas. Id. at *7. Accordingly, this Court concluded plaintiffs
established Deere had a principal office in Dallas County for venue purposes. Id.
The evidence here is not comparable to that in Roach or Deere. Even if the
evidence showed Sparks, Eubanks, Hanna, or Emley are “decision makers,” there
was no distinct testimonial or documentary evidence on the corporate structure of
any of the named Greystar defendants, other than vague references to Greystar
“affiliates” in the Flores case. And, there was no evidence addressing the
–18– relationship of any Greystar entity’s Irving office to the other Texas Greystar offices
or the comparable authority of any of the Texas offices or employees. Neither was
there evidence of the corporate structure of UFI, its decision makers, or their relative
authority.
Accordingly, we conclude Nova did not provide prima facie proof the
Greystar Appellants or UFI has a principal office in Dallas County. See In re Mo.
Pac. Ry. Co., 998 S.W.2d at 220-21; Stouffer, 420 S.W.3d at 242-44.
C. “Substantial part of the events or omissions”
Nova also argues venue in Dallas County is proper because they alleged a
substantial part of the events or omissions giving rise to the claim occurred there.
See TEX. CIV. PRAC. & REM. CODE § 15.002(a)(1). Our inquiry concerning the
applicability of Section 15.002(a)(1) involves identifying the claims and then
determining whether all or a substantial part of the events or omissions giving rise
to those claims occurred in Dallas County. Rush Truck Centers of Texas, L.P. v.
Sayre, No. 05-23-00775-CV, 2023 WL 8270236, at *3 (Tex. App.—Dallas Nov. 30,
2023, no pet.) (mem. op.). This provision limits the number of counties where venue
can be maintained to those with a substantial connection with the lawsuit. Velasco
v. Texas Kenworth Co., 144 S.W.3d 632, 634 (Tex. App.—Dallas 2004, pet. denied).
We analyze whether the evidence shows the actions or omissions at issue are
materially connected to the cause of action. Moveforfree.com, Inc. v. David Hetrick,
Inc., 288 S.W.3d 539, 542 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing
–19– KW Constr. v. Stephens & Sons Concrete Contractors, 165 S.W.3d 874, 882 (Tex.
App.—Texarkana 2005, pet. denied); Chiriboga v. State Farm Mut. Auto. Ins. Co.,
96 S.W.3d 673, 680 (Tex. App.—Austin 2003, no pet.)).
Here, in her original petition, Nova stated: “A substantial part of the events or
omissions giving rise to the claim occurred in Dallas County.” Other than tracking
the statutory language, there are no allegations tying any acts or omissions in Dallas
County to Nova’s claims. In the fact section of the petition, Nova describes that
debris fell from a hi-rise construction project and struck Michael Delgado, resulting
in his death. However, Nova curiously omits the locations of the construction project
and Delgado at the time of the incident. Nova alleges there were wind and weather
advisories in place at the time, but again provides no location details. Nova then goes
on to allege the defendants were negligent in failing to perform the work in a safe
manner, failing to monitor the weather, and failing to follow safety regulations and
industry standards, among other acts. Again, however, Nova does not allege, even
generally, where these acts or omissions occurred. There is no reference to any city
or county, much less Dallas County.
In the response to the motion to transfer venue, Nova did not point to any
evidence supporting that a substantial part of the events or omissions occurred in
Dallas County. Appellants contend Nova abandoned her reliance on Section
15.002(a)(1) to establish venue. On appeal, Nova points to portions of Sparks’s
testimony discussed above, and testimony from a superintendent (Brian Shrupsha)
–20– for a Greystar entity in the Flores suit. We need not decide whether Nova abandoned
her reliance on Section 15.002(a)(1) because even considering the evidence she now
points to on appeal, it does not provide prima facie proof to support that a substantial
part of the events or omissions occurred in Dallas County.
Shrupsha’s testimony vaguely references policies in the Flores suit that may
or may not have contributed to that incident (which occurred in Dallas in June 2019),
with no indication of any relation to this construction-related incident (March 2023).
Furthermore, none of Shrupsha’s cited testimony describes any act or omission by
any named defendant in the present case. Shrupsha does not identify any specific
office location from which any purported policies originated. Similarly, Sparks’s
cited testimony references acts or omissions in the Flores suit, with no connection
to the events or omissions leading to Delgado’s injury and death. Any contrary
assertion by Nova requires surmise, suspicion, and conjecture, none of which
constitutes probative evidence. See Marathon Corp., 106 S.W.3d at 728 & n.7-8.
Ultimately, Nova did not provide prima facie proof that a substantial part of
the events or omissions giving rise to the claim occurred in Dallas County. See TEX.
CIV. PRAC. & REM. CODE § 15.002(a)(1); TEX. R. CIV. P. 87(3).
D. Venue is proper in Travis County
Because Nova did not come forward with prima facie proof to support venue
in Dallas County, the burden shifted to Appellants to show venue is proper in their
–21– chosen county (Travis County). In re Mo. Pac. Ry. Co., 998 S.W.2d at 216; Ford
Motor Co., 473 S.W.3d at 928.
In their motions to transfer, Appellants alleged this case arises out of
Delgado’s death in Austin. Relying in part on Nova’s petition filed in the Travis
County probate court, Appellants described how Delgado was riding his bicycle near
a construction site in Austin when high winds blew a piece of debris off a building
under construction. The debris struck Delgado, killing him. Appellants alleged Nova
then filed suit in Travis County against several defendants (except the Greystar
entities), then retained new counsel, nonsuited the Travis County case, and refiled
the suit in Dallas County, adding numerous defendants, including the Greystar
entities.11
Importantly, Nova did not specifically deny Appellants’ venue allegations that
the incident occurred in Austin. We take properly pleaded venue facts as true unless
they are specifically denied by the adverse party. TEX. R. CIV. P. 87(3)(a); see
GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 543 (Tex. 1998). Furthermore,
at the hearing on the motion to transfer, Nova’s counsel conceded Delgado was
11 Appellants attached to their motion to transfer venue a file-stamped copy of Nova’s original petition in Travis County Probate Court, filed March 31st, 2023. The facts therein alleged in detail that on March 2, 2023, Delgado was riding his bicycle near a “Greystar” construction site on Rio Grande Street in Austin when he was struck by a large piece of construction debris that had fallen from the site due to high winds. Nova alleged Austin news weather reports and other media had warned of severe weather, including high winds, and that various defendants had ignored weather warnings and failed to keep the construction site secure and safe. While statements in petitions from a non-suited case do not typically qualify as judicial admissions, we note the Travis County petition here as part of our consideration of the entire record and because it supports Appellants’ venue allegations. –22– killed in Travis County and “[t]here’s no doubt some of the activities that took place
were in Travis County…it happened in Austin.” Nova also admits in her appellate
brief that the accident occurred in Austin.12
We conclude Appellants properly pleaded venue facts, not specifically denied
by Nova, that indicate a substantial part of the events or omissions giving rise to
Nova’s claims occurred in Travis County. See TEX. CIV. PRAC. & REM. CODE §
15.002(a)(1). Other portions of the record support that conclusion. Accordingly,
Appellants met their burden to show venue is proper in Travis County. TEX. R. CIV.
P. 87(2). We conclude the trial court erred in denying Appellants’ motions to transfer
venue. We sustain Appellants’ sole issue.
III. Nova’s Request for Continuance
Nova argues that even if the trial court erred in ruling on the motions to
transfer venue, this Court should remand to permit additional venue discovery
because Nova moved for a continuance on that basis. We decline to grant such relief
for several reasons.
First, we question our jurisdiction to grant Nova’s requested relief because
Nova did not file a notice of appeal complaining of the trial court’s denial of its
motion for continuance. A party who seeks to alter the trial court’ s judgment or
other appealable order must file a notice of appeal. TEX. R. APP. P. 25.1(c). The
12 We also note an affidavit in the record from a co-defendant, B&D Contractors, Inc., indicates the project forming the basis of this suit was located in Travis County. –23– appellate court may not grant a party who does not file a notice of appeal more
favorable relief than did the trial court except for just cause. Id.
Assuming Nova filed a proper motion for continuance (discussed below), the
trial court did not expressly rule on the motion but instead proceeded with the
hearing, and later denied Appellants’ motions to transfer venue. We have previously
recognized when a party moves to continue a hearing but the trial court conducts the
hearing or rules on its substance, the trial court impliedly overrules the motion for
continuance. See Favour Leasing, LLC v. Mulligan, No. 05-13-01000-CV, 2014 WL
4090130, at *10 (Tex. App.—Dallas Aug. 19, 2014, no pet.) (mem. op.) (trial court
implicitly denied motion for continuance when it proceeded with the special
appearance hearing and denied the special appearance); U.S. Terra Corp. v. First
Nat. Bank of Park Cities, No. 005-95-01374-CV, 1996 WL 601717, at *4 (Tex.
App.—Dallas Oct. 16, 1996, no writ) (not designated for publication) (by conducting
the hearing on defendant’s special appearance, the trial court impliedly overruled
plaintiff’s motion for continuance to conduct discovery).
Here, by conducting the hearing and issuing a ruling on the motions to transfer
venue, the trial court impliedly denied Nova’s motion for continuance. Nova did not
challenge that ruling by notice of appeal. However, as appellees, Nova would have
us grant greater relief than the trial court. In the absence of a proper appeal to this
Court, we decline to do so. See TEX. R. APP. P. 25.1(c); Brooks v. Northglen Ass’n,
141 S.W.3d 158, 171 (Tex. 2004) (respondent did not preserve for review the issue
–24– of its authority to unilaterally amend deed restrictions and increase assessments,
where it did not file a notice of appeal from the trial court’s judgment, did not seek
a cross-appeal, and did not petition supreme court for review on the point).
Second, the record does not reflect Nova filed a proper motion for
continuance. Generally, a motion for continuance must set out sufficient cause,
supported by affidavit. TEX. R. CIV. P. 251. If a continuance is sought in order to
pursue further discovery, the motion should be supported by affidavit and describe
the evidence sought, explain its materiality, and show the party requesting the
continuance used due diligence to obtain the evidence. TEX. R. CIV. P. 252; see Wal-
Mart Stores Texas, LP v. Crosby, 295 S.W.3d 346, 356 (Tex. App.—Dallas 2009,
pet. denied). A trial court does not abuse its discretion by denying a motion for
continuance that does not meet the requirements of Rule 252. Id. Here, Nova did not
file a motion for continuance supported by affidavit. Its request for continuance
appeared within its response to Appellants’ motion to transfer.13 The request did not
provide any detail regarding the requested discovery, but merely cited Rule 88
(permitting discovery relevant to venue determination). Nova did not describe the
evidence sought, explain its materiality, or show she used due diligence to obtain the
evidence. TEX. R. CIV. P. 252. Generally, when movants fail to comply with the
rules’ requirements that the motion for continuance be “supported by affidavit,” we
13 Nova attached an affidavit to its response to the motion to transfer, but that affidavit merely proved up the attachments to the response. It did not address the need for a continuance. –25– presume the trial court did not abuse its discretion in denying the motion. Villegas
v. Carter, 711 S.W.2d 624, 626 (Tex. 1986).
Third, even if Nova had filed a proper motion for continuance, we question
Nova’s diligence in obtaining relevant venue evidence. Appellants filed their
answers and motions to transfer venue on August 25, 2023. The hearing for the
motions was set for December 15, 2023. However, the record reflects Nova did not
serve any venue-related discovery until three days prior to the December 15th
hearing. Furthermore, at that hearing Nova did not object to proceeding with the
hearing and did not assert she needed more time to conduct venue discovery. Three
months after the hearing, Nova moved to compel Appellants to respond to the venue-
related discovery served in December. The trial court denied the motions to transfer
venue a few days before the hearing on the motion to compel. The record does not
support Nova diligently pursued discovery on venue. See Bridgestone/Firestone,
Inc. v. Thirteenth Ct. of Appeals, 929 S.W.2d 440, 442 (Tex. 1996) (orig.
proceeding) (trial court could reasonably have concluded plaintiffs had, but did not
diligently pursue, an opportunity to obtain discovery on venue). For these reasons,
we reject Nova’s request to remand for additional venue-related discovery.
CONCLUSION
The trial court erred in denying Appellants’ motions to transfer venue to
Travis County. Even if Nova properly pleaded venue facts, upon challenge by
Appellants, Nova did not provide prima facie proof venue is proper in Dallas
–26– County. Nova did not provide probative evidence any named defendant had a
principal office in Dallas County or that a substantial part of the events or omissions
giving rise to the claims occurred in Dallas County. Conversely, Appellants pleaded
venue facts—not specifically denied by Nova—that venue is proper in Travis
County, and the record supports that conclusion. Furthermore, Nova is not entitled
to a continuance to pursue additional venue-related discovery. Accordingly, we
reverse the trial court’s judgment and remand with instructions to transfer
Appellants’ case to Travis County. We dismiss for want of jurisdiction the appeal as
to Greystar Management Services, LLC.
/Robbie Partida-Kipness/ ROBBIE PARTIDA-KIPNESS 240532F.P05 JUSTICE
–27– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
GREYSTAR STUDENT HOUSING On Appeal from the County Court at GROWTH AND INCOME FUND Law No. 2, Dallas County, Texas OP, LP, GREYSTAR Trial Court Cause No. CC-23-03924- DEVELOPMENT GROUP, LP, B. GREYSTAR DEVELOPMENT Opinion delivered by Justice Partida- CENTRAL, LLC, ET AL., Kipness. Justices Pedersen, III and Appellants Carlyle participating.
No. 05-24-00532-CV V.
BRITTNEY NOVA, ET AL., Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court with instructions to transfer Appellants’ case to Travis County.
It is further ORDERED that the appeal as to Greystar Management Services, LLC is DISMISSED for want of jurisdiction.
It is ORDERED that Appellants GREYSTAR STUDENT HOUSING GROWTH AND INCOME FUND OP, LP, GREYSTAR DEVELOPMENT GROUP, LP, GREYSTAR DEVELOPMENT CENTRAL, LLC, ET AL. recover their costs of this appeal from Appellees BRITTNEY NOVA, ET AL.
Judgment entered this 22nd day of August 2024.
–28–