In Re Shell Oil Co.

Court of Appeals of Texas

In Re Shell Oil Co.

128 S.W.3d 694, 2004 Tex. App. LEXIS 585, 2003 WL 23189491

CourtCourt of Appeals of Texas

DecidedJanuary 22, 2004

Docket09-03-325-CV

StatusPublished

Cited by18 cases

This text of 128 S.W.3d 694 (In Re Shell Oil Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re Shell Oil Co., 128 S.W.3d 694, 2004 Tex. App. LEXIS 585, 2003 WL 23189491 (Tex. Ct. App. 2004).

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OPINION

STEVE McKEITHEN, Chief Justice.

In this original proceeding, the relators, Shell Oil Company, Pennzoil-Quaker State Company, and Delta Distributors, Inc. fik/a or d/b/a Delta Solvent, petition for a writ of mandamus to transfer venue of a suit from Jefferson County to Harris County. We conditionally grant relief.

The original petition filed by William L. Simpson and Eva Simpson in Orange County in July 1999, alleged that William Simpson developed chronic lymphocytic leukemia as the result of occupational exposure to benzene placed into the stream of commerce by the defendants. Shell Oil Company filed a motion to transfer venue to Harris County, its principal place of business. See Tex. Civ. PRAC. & Rem.Code Ann. § 15.002 (Vernon 2002). The remaining defendants also moved to transfer venue to Harris County. Although the Orange County suit had already been filed, the Simpsons filed the instant suit, Cause No. B-162,024, in Jefferson County in December 1999. The Simpsons did not obtain service on the defendants when they filed the Jefferson County suit, but they requested a consolidation of the two suits in a March 2000 response to the motion to transfer venue. On June 20, 2000, the judge of the 128th District Court of Orange County transferred the case to the 280th District Court of Harris County. The Simpsons filed a motion to non-suit the Harris County litigation. Finding that the Simpsons had not obtained service on the Jefferson County suit for over a year after its filing, and observing that, barring a successful appeal, venue had been conclusively established in Harris County, the 280th District Court denied the motion for non-suit. The First Court of Appeals granted the Simpsons’ petition for writ of mandamus to compel the 280th District Court’s dismissal of the Harris County [696]*696litigation. In re Simpson, No. 01-01-00138-CV, 2002 WL 27745, 2002 Tex.App. LEXIS 160 (Tex.App.-Houston [1st Dist.] Jan. 10, 2002, orig. proceeding [mand. denied] )(not designated for publication). The 280th District Court reinstated the case, and on February 18, 2002,¹ granted the Simpsons’ motion for non-suit of the Harris County litigation. The relators filed a petition for writ of mandamus with the Supreme Court; that petition was denied on October 10, 2002. See In re Shell Oil Co., No. 02-0134 (Tex. Oct. 10, 2002) (not designated for publication). An order granting a second motion for non-suit was signed by the 280th District Court on February 14, 2003. The relators filed motions to transfer venue from Jefferson County to Harris County. The trial court denied the motion.

The relators contend that the venue determination for this suit was made by the 128th District Court on June 20, 2000, and the trial court could not in its discretion order that the suit remain in Jefferson County. We agree. If an action has been transferred to a proper county in response to a motion to transfer, then no further motions to transfer shall be considered. Tex.R. Civ. P. 87.5. The correctness of an order transferring venue may be challenged oh appeal from the trial on the merits. Tex. Civ. Prac. & Rem.Code Ann. § 15.064 (Vernon 2002). Venue of any subsequent suit involving the same subject matter and the same parties as the initial suit is governed by the venue determination in the initial suit. Miller v. State and County Mut. Fire Ins. Co., 1 S.W.3d 709, 713 (Tex.App.-Fort Worth 1999, pet. denied). Once the Orange County Court ruled on the motion to transfer venue, Rule 87.5 precluded any rehearing of that ruling on the trial court level. Tex.R. Civ. P. 87.5. That ruling could be challenged on appeal following trial on the merits, but the trial court did not have the discretion to make a new judicial determination of venue. The Simpsons non-suited after the case had been transferred to Harris County. Therefore, they are bound not only by the venue facts alleged in the motions to transfer filed in Orange County, but also by the June 20, 2000, order transferring venue.

Although mandamus is not available to review the propriety of venue in the county of suit in cases outside the ambit of Section 15.0642, Civil Practice and Remedies Code, it is properly employed to correct improper venue procedure. In re Missouri Pacific R.R. Co., 998 S.W.2d 212, 215 n. 18 (Tex.1999); In re Masonite Corp., 997 S.W.2d 194, 198 (Tex.1999); HCA Health Serv. of Texas, Inc. v. Salinas, 838 S.W.2d 246, 248 (Tex.1992); Union Carbide Corp. v. Moye, 798 S.W.2d 792, 793 (Tex.1990); Henderson v. O’Neill, 797 S.W.2d 905 (Tex.1990); compare Tex. Civ. PRAC. & Rem.Code Ann. § 15.0642 (Vernon 2002). The trial court’s refusal of the motion to transfer the suit to the previously determined county of venue presents exceptional circumstances. In exceptional circumstances — such as when a trial judge makes no attempt to follow Rule 87 and acknowledges deviation from required procedure — mandamus will issue to correct improper venue procedure. See e.g. Henderson v. O’Neill, 797 S.W.2d at 905; Dorchester Master Ltd. Partnership v. Anthony, 734 S.W.2d 151 (Tex.App.-Houston [1st Dist.] 1987, orig. proceeding); and see e.g. Stephens v. Culver, 1996 WL 404037, 1996 Tex.App. LEXIS 3048 (Tex.App.Houston [1st Dist.] 1996)(not designated for publication)(mandamus proper to vacate second venue order prohibited by Rule 87(5)). In Henderson v. O’Neill, the [697]*697Texas Supreme Court held mandamus was appropriate to enforce the Rule 87 notice requirement in a venue proceeding, explaining “[t]he record indicates that the trial court made no attempt to follow the applicable rule and, in fact, acknowledged its deviation from the required procedure.” 797 S.W.2d at 905. The Court did not discuss the adequacy of the legal remedy given those circumstances. And in Dorchester Master Ltd. Partnership v. Anthony, 734 S.W.2d at 152, the appellate court held mandamus was proper to enforce the Rule 87(5) prohibition against a second venue determination. There, as here, the trial judge violated Rule 87 by making a second venue determination contrary to another judge’s venue order. The appellate court ordered the trial court to vacate the second order. Id.

The trial court here has clearly violated the required procedure for venue determination, and refused to enforce the prior venue order of another judge. If a trial court circumvents the venue-determination procedure by permitting a party to file multiple suits and selectively non-suit, then the carefully crafted venue procedure is unenforceable and ineffectual.

Accordingly, we conditionally grant writ of mandamus directing the trial court to sustain the relators’ motion to transfer the case to Harris County. The writ will not issue unless the trial court fails to act in accordance with this opinion.

WRIT CONDITIONALLY GRANTED.

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OPINION

STEVE McKEITHEN, Chief Justice.

In this original proceeding, the relators, Shell Oil Company, Pennzoil-Quaker State Company, and Delta Distributors, Inc. fik/a or d/b/a Delta Solvent, petition for a writ of mandamus to transfer venue of a suit from Jefferson County to Harris County. We conditionally grant relief.

The original petition filed by William L. Simpson and Eva Simpson in Orange County in July 1999, alleged that William Simpson developed chronic lymphocytic leukemia as the result of occupational exposure to benzene placed into the stream of commerce by the defendants. Shell Oil Company filed a motion to transfer venue to Harris County, its principal place of business. See Tex. Civ. PRAC. & Rem.Code Ann. § 15.002 (Vernon 2002). The remaining defendants also moved to transfer venue to Harris County. Although the Orange County suit had already been filed, the Simpsons filed the instant suit, Cause No. B-162,024, in Jefferson County in December 1999. The Simpsons did not obtain service on the defendants when they filed the Jefferson County suit, but they requested a consolidation of the two suits in a March 2000 response to the motion to transfer venue. On June 20, 2000, the judge of the 128th District Court of Orange County transferred the case to the 280th District Court of Harris County. The Simpsons filed a motion to non-suit the Harris County litigation. Finding that the Simpsons had not obtained service on the Jefferson County suit for over a year after its filing, and observing that, barring a successful appeal, venue had been conclusively established in Harris County, the 280th District Court denied the motion for non-suit. The First Court of Appeals granted the Simpsons’ petition for writ of mandamus to compel the 280th District Court’s dismissal of the Harris County [696]*696litigation. In re Simpson, No. 01-01-00138-CV, 2002 WL 27745, 2002 Tex.App. LEXIS 160 (Tex.App.-Houston [1st Dist.] Jan. 10, 2002, orig. proceeding [mand. denied] )(not designated for publication). The 280th District Court reinstated the case, and on February 18, 2002,¹ granted the Simpsons’ motion for non-suit of the Harris County litigation. The relators filed a petition for writ of mandamus with the Supreme Court; that petition was denied on October 10, 2002. See In re Shell Oil Co., No. 02-0134 (Tex. Oct. 10, 2002) (not designated for publication). An order granting a second motion for non-suit was signed by the 280th District Court on February 14, 2003. The relators filed motions to transfer venue from Jefferson County to Harris County. The trial court denied the motion.

The relators contend that the venue determination for this suit was made by the 128th District Court on June 20, 2000, and the trial court could not in its discretion order that the suit remain in Jefferson County. We agree. If an action has been transferred to a proper county in response to a motion to transfer, then no further motions to transfer shall be considered. Tex.R. Civ. P. 87.5. The correctness of an order transferring venue may be challenged oh appeal from the trial on the merits. Tex. Civ. Prac. & Rem.Code Ann. § 15.064 (Vernon 2002). Venue of any subsequent suit involving the same subject matter and the same parties as the initial suit is governed by the venue determination in the initial suit. Miller v. State and County Mut. Fire Ins. Co., 1 S.W.3d 709, 713 (Tex.App.-Fort Worth 1999, pet. denied). Once the Orange County Court ruled on the motion to transfer venue, Rule 87.5 precluded any rehearing of that ruling on the trial court level. Tex.R. Civ. P. 87.5. That ruling could be challenged on appeal following trial on the merits, but the trial court did not have the discretion to make a new judicial determination of venue. The Simpsons non-suited after the case had been transferred to Harris County. Therefore, they are bound not only by the venue facts alleged in the motions to transfer filed in Orange County, but also by the June 20, 2000, order transferring venue.

Although mandamus is not available to review the propriety of venue in the county of suit in cases outside the ambit of Section 15.0642, Civil Practice and Remedies Code, it is properly employed to correct improper venue procedure. In re Missouri Pacific R.R. Co., 998 S.W.2d 212, 215 n. 18 (Tex.1999); In re Masonite Corp., 997 S.W.2d 194, 198 (Tex.1999); HCA Health Serv. of Texas, Inc. v. Salinas, 838 S.W.2d 246, 248 (Tex.1992); Union Carbide Corp. v. Moye, 798 S.W.2d 792, 793 (Tex.1990); Henderson v. O’Neill, 797 S.W.2d 905 (Tex.1990); compare Tex. Civ. PRAC. & Rem.Code Ann. § 15.0642 (Vernon 2002). The trial court’s refusal of the motion to transfer the suit to the previously determined county of venue presents exceptional circumstances. In exceptional circumstances — such as when a trial judge makes no attempt to follow Rule 87 and acknowledges deviation from required procedure — mandamus will issue to correct improper venue procedure. See e.g. Henderson v. O’Neill, 797 S.W.2d at 905; Dorchester Master Ltd. Partnership v. Anthony, 734 S.W.2d 151 (Tex.App.-Houston [1st Dist.] 1987, orig. proceeding); and see e.g. Stephens v. Culver, 1996 WL 404037, 1996 Tex.App. LEXIS 3048 (Tex.App.Houston [1st Dist.] 1996)(not designated for publication)(mandamus proper to vacate second venue order prohibited by Rule 87(5)). In Henderson v. O’Neill, the [697]*697Texas Supreme Court held mandamus was appropriate to enforce the Rule 87 notice requirement in a venue proceeding, explaining “[t]he record indicates that the trial court made no attempt to follow the applicable rule and, in fact, acknowledged its deviation from the required procedure.” 797 S.W.2d at 905. The Court did not discuss the adequacy of the legal remedy given those circumstances. And in Dorchester Master Ltd. Partnership v. Anthony, 734 S.W.2d at 152, the appellate court held mandamus was proper to enforce the Rule 87(5) prohibition against a second venue determination. There, as here, the trial judge violated Rule 87 by making a second venue determination contrary to another judge’s venue order. The appellate court ordered the trial court to vacate the second order. Id.

The trial court here has clearly violated the required procedure for venue determination, and refused to enforce the prior venue order of another judge. If a trial court circumvents the venue-determination procedure by permitting a party to file multiple suits and selectively non-suit, then the carefully crafted venue procedure is unenforceable and ineffectual.

Accordingly, we conditionally grant writ of mandamus directing the trial court to sustain the relators’ motion to transfer the case to Harris County. The writ will not issue unless the trial court fails to act in accordance with this opinion.

WRIT CONDITIONALLY GRANTED.

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128 S.W.3d 694, 2004 Tex. App. LEXIS 585, 2003 WL 23189491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-shell-oil-co-texapp-2004.

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