in Re: Travelers Property Casualty Company of America, Great American Insurance Company, and MICA Corporation
Opinion
ACCEPTED
05-15-01114-CV
05-15-01114-CV FIFTH COURT OF APPEALS DALLAS, TEXAS
9/15/2015 3:05:55 PM
LISA MATZ
CLERK
No.__________________________
IN THE COURT OF APPEALS FILED IN 5th COURT OF APPEALS
FOR THE FIFTH JUDICIAL DISTRICT DALLAS, TEXAS DALLAS, TEXAS 9/15/2015 3:05:55 PM ____________________________________________LISA MATZ Clerk
IN RE TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, GREAT AMERICAN INSURANCE COMPANY AND MICA CORPORATION
RELATORS
FROM THE 95th DISTRICT COURT, DALLAS COUNTY, TEXAS, CAUSE NO. DC-15-04399, HON. KEN MOLBERG, PRESIDING
RELATORS’ EMERGENCY MOTION FOR TEMPORARY ORDER STAYING ALL PROCEEDINGS IN THE TRIAL COURT PENDING RESOLUTION OF THEIR PETITION FOR WRIT OF MANDAMUS
RYAN LOGAN VALDEZ KEVIN SEWELL Texas Bar No. 24037627 Texas Bar No. 00789619 rvaldez@canteyhanger.com sewell@mdjwlaw.com J. FRANK KINSEL, JR. MICHAEL J. WATSON Texas Bar No. 11488700 Texas Bar No. 24008246 jkinsel@canteyhanger.com watson@mdjwlaw.com BRIAN BRISCO MARTIN, DISIERE, JEFFERSON & Texas Bar No. 24073957 WISDOM, LLP bbrisco@canteyhanger.com Tollway Plaza One CANTEY HANGER LLP 16000 N. Dallas Parkway, Suite 600 West 6th Street, Suite 300 Dallas, Texas 75248 Fort Worth, TX 76102 Telephone: (817) 877-2847 Telephone: (817) 877-2800 Facsimile: (817) 333-2947 Facsimile: (817) 877-2807 Attorneys for Relator Great Attorneys for Relator Travelers American Insurance Company Property Casualty Company of America
JEFFREY JACK WOLF Texas Bar No. 21849012 jwolf@wolflawpc.com Jack D. Ormond Texas Bar No. 24037217 jormond@wolflawpc.com THE WOLF LAW FIRM, P.C. 1360 North White Chapel Blvd. Southlake, Texas 76092 Telephone: (817) 552-9653 Facsimile: (817) 552-0300 Attorneys for Relator MICA Corporation
TO THE HONORABLE COURT OF APPEALS:
Come now Relators, Travelers Property Casualty Company of America,
Great American Insurance Company and MICA Corporation (collectively
“Relators”) and, pursuant to TEX. R. APP. PROC. 52.10, file their Emergency
Motion for Temporary Order Staying All Proceedings in the Trial Court Pending
Resolution of Their Petition for Writ of Mandamus and would respectfully show as
follows:
On August 16, 2015, the trial court signed an order denying Relators’
Motion to Transfer Venue. Relators’ Motion demonstrated that venue was
mandatory in Fannin County under Tex. Civ. Prac. & Rem. Code Ann. sec. 15.019.
Relators have filed contemporaneously with this emergency motion a Petition for
Writ of Mandamus seeking review of the trial court’s denial of their Motion to
Transfer Venue.
As a result of the pendency of the petition for writ of mandamus, this Court
is authorized to grant temporary relief and stay the underlying litigation during the
pendency of the appellate proceedings:
The relator may file a motion to say any underlying proceedings or for any other temporary relief pending the court’s action on the petition.
TEX. R. APP. P. 52.10(a).
The court—on motion of any party or on its own initiative—may without notice grant any just relief pending the court’s action on the petition.
TEX. R. APP. P. 52.10(b) (emphasis added).
Venue has always been regarded as an important right in this State. Ruiz v.
Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993). “The question of venue is a very
material right.” Fulmore v. Benson, 257 S.W. 697, 701 (Tex. Civ. App.—Austin
1923), rev’d on other grounds, 269 S.W. 71 (Tex. Comm. App. 1929, judg’t
adopted). Indeed, venue is “of vital importance.” City State Bank v. Gribble, 256
S.W.2d 872, 874 (Tex. Civ. App.—Amarillo 1952, no writ).
In fact, venue is so important that if the court makes an improper venue
determination, then “it shall in no event be harmless error and shall be reversible
error.” TEX. CIV. PRAC. & REM. CODE ANN. sec. 15.064(b) (Vernon 1986). Proper
and early resolution of mandatory venue provisions, such as the one applicable in
this matter, are of such importance that mandamus proceedings are specifically
authorized to enforce those provisions. TEX. CIV. PRAC. & REM. CODE ANN. sec.
15.0642.
The right of a defendant to be sued in a particular county necessarily
includes not only the right to have trial conducted there, but also to have all pre-
and post-trial issues ruled on in the statutorily prescribed county. Like special
appearances, proper venue is of such paramount importance that discovery on
other issues may be entirely precluded while venue issues are resolved. In re
Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999) (“courts may limit
discovery pending resolution of threshold issues like venue”); Miller v. State &
County Mut. Fire Ins. Co., 1 S.W.3d 709, 716-17 (Tex. App.—Fort Worth 1999,
no pet.) (holding that trial court’s abatement precluding all discovery while it
determined venue issues was not an abuse of discretion).
The question of whether the District Court of Dallas County court is the
proper court to adjudicate all the issues in this matter has not yet been resolved by
this Court. However, the Real Party in Interest, John Goin, has moved forward
with discovery sending 76 or more requests for production to each of the Relators
and unilaterally noticing the deposition of Hector Noris, an employee of Relator
MICA. MICA has filed a Motion to Quash the Deposition of Hector Noris on
several bases. The pre-trial issues related to this or any discovery, as well as the
other pre-trial and trial issues associated with this matter, should be decided by a
trial court in the proper county, which Relators would show is a district court in
Fannin County under a mandatory venue provision.
The trial court proceedings should be stayed so that the parties will be
required to submit to the expense and inconvenience of discovery pending
resolution of this mandamus. Lacefield v. Electronic Fin. Group, 21 S.W.3d 799,
800 (Tex. App.—Waco 2000, no pet.) (discovery stayed during pendency of
interlocutory appeal from order denying special appearance because appellant
should not be required to submit to “the expense and inconvenience of discovery
pending resolution of his appeal”).
A stay of all proceedings below is just relief and is necessary to protect
Relators’ rights. TEX. R. APP. P. 52.10, 29.3. Relators request this Court to stay all
proceedings, including, but not limited to, discovery, the resolution of discovery
issues, and trial, during the pendency of and until the conclusion of this mandamus
proceeding.
Respectfully submitted,
/s/ Ryan Logan Valdez /s/ Kevin Sewell RYAN LOGAN VALDEZ KEVIN SEWELL Texas Bar No. 24037627 Texas Bar No. 00789619 rvaldez@canteyhanger.com sewell@mdjwlaw.com J. FRANK KINSEL, JR. MICHAEL J. WATSON Texas Bar No. 11488700 Texas Bar No. 24008246 jkinsel@canteyhanger.com watson@mdjwlaw.com BRIAN BRISCO MARTIN, DISIERE, JEFFERSON & Texas Bar No. 24073957 WISDOM, LLP bbrisco@canteyhanger.com Tollway Plaza One CANTEY HANGER LLP 16000 N. Dallas Parkway, Suite 800 600 West 6th Street, Suite 300 Dallas, Texas 75248 Fort Worth, TX 76102 Telephone: (817) 877-2847 Telephone: (817) 877-2800 Facsimile: (817) 333-2947 Facsimile: (817) 877-2807 Attorneys for Relator Great American Attorneys for Relator Travelers Insurance Company Property Casualty Company of America
/s/ Jack D. Ormond JEFFREY JACK WOLF Texas Bar No. 21849012 jwolf@wolflawpc.com Jack D. Ormond Texas Bar No. 24037217 jormond@wolflawpc.com THE WOLF LAW FIRM, P.C. 1360 North White Chapel Blvd. Southlake, Texas 76092 Telephone: (817) 552-9653 Facsimile: (817) 552-0300 Attorneys for Relator MICA Corporation
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P.
52.10(a)/CERTIFICATE OF CONFERENCE
This is to certify that Relators have notified all parties by telephone or facsimile that this motion for temporary relief has been or will be filed and that this motion is opposed.
/s/ Michael Watson Michael Watson
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R. App. P.
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