Kerri D. Condie, P.C. v. Michelle McLaughlin

Opinion

REVERSE and REMAND; Opinion Filed June 4, 2019.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00085-CV

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

MEMORANDUM OPINION Before Justices Brown, Schenck, and Pedersen, III Opinion by Justice Schenck 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.

–2– 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.

1 Despite reference to argument in the order, the record contains no record of this hearing. 2 Section 15.002(b) of the civil practice and remedies code permits a court to transfer an action from a county of proper venue to another county of proper venue on motion of a defendant where the court finds:

(1) maintenance of the action in the county of suit would work an injustice to the movant considering the movant’s economic and personal hardship;

(2) the balance of interests of all the parties predominates in favor of the action being brought in the other county; and

(3) the transfer of the action would not work an injustice to any other party.

TEX. CIV. PRAC. & REM. CODE ANN. § 15.002(b). 3 McLaughlin’s motion contended that P.C. had no evidence that (1) P.C. was the proper party to sue for breach of the contract between Condie and McLaughlin, (2) Condie or P.C. performed under the alleged contract, or (3) P.C. suffered injury from any breach of the alleged contract by McLaughlin. 4 The record does not contain a transcript of this hearing, and the official court reporter to the 193rd District Court filed a letter with this Court, confirming that no record was taken at this hearing.

–3– 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 statute that requires transfer.” See id. “Proper” venue is

defined by statute as

(1) the venue required by the mandatory provisions of Subchapter B [“Mandatory Venue”] or another statute prescribing mandatory venue; or

(2) if Subdivision (1) does not apply, the venue provided by this subchapter or Subchapter C [“Permissive Venue”].

See id. (citing CIV. PRAC. & REM. § 15.001(b)). Thus, when both a mandatory and a permissive

venue statute apply to a suit, the permissive statute must yield to the mandatory statute. See id.

–4– Under the rules of civil procedure, all venue facts, when properly pleaded, shall be taken

as true unless specifically denied by the adverse party. See TEX. R. CIV. P. 87(a). When a venue

fact is specifically denied, the party pleading the venue fact must make prima facie proof of that

venue fact. See id.

Here, P.C. argues Collin County was the proper venue because “all or a substantial part of

the events or omissions giving rise to the claim occurred in Collin County,” citing section 15.002

of the civil practice and remedies code, which is the general rule governing where lawsuits shall

be brought. See CIV. PRAC. & REM. § 15.002. P.C. set forth these venue facts in its original

petition. After McLaughlin filed her venue motion, P.C. filed an amended petition with these same

facts and attached to its response to McLaughlin’s venue motion a declaration of Condie.5 In that

declaration, Condie stated she is the president and shareholder of P.C., McLaughlin contracted

with P.C. in February or March 2014, and McLaughlin performed the contracted-for services and

breached the contract at issue at P.C.’s office in Collin County. Section 15.002 is a permissive

venue statute, such that P.C.’s “choice of venue should be honored absent a mandatory venue

statute that requires transfer.” See Perryman, 546 S.W.3d at 130; see also In re R.R. Repair &

Maint., Inc., No. 05-09-01035-CV, 2009 WL 3531636, at *4 (Tex. App.—Dallas Nov. 2, 2009,

orig. proceeding) (mem. op.) (describing section 15.002 as permissive venue statute).

McLaughlin argues on appeal, as she did at the Collin County trial court, that section

15.062, which governs counterclaims, cross claims, and third-party claims, controls. See CIV.

PRAC. & REM. § 15.062. McLaughlin urges P.C.’s suit is “nothing more than a compulsory third-

5 Rule 87 provides that 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. TEX. R. CIV. P. 87(3). Further, affidavits shall be made on personal knowledge, shall set forth specific facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify. See id. Section 132.001 of the civil practice and remedies code provides for use of unsworn declarations in lieu of affidavits required by statute or rule. See CIV. PRAC. & REM. § 132.001. Condie’s declaration was in writing and subscribed as true and correct under penalty of perjury. We conclude her declaration substantially complied with section 132.001 and Rule 87. See Beonney v. U.S. Bank Nat’l Assoc., No. 05-15-01057-CV, 2016 WL 3902607, at *3 (Tex. App.— Dallas July 14, 2016, no pet.) (mem. op.) (holding in context of summary judgment evidence that main requirements under section 132.001 are declaration be in writing and subscribed by declarant as true under penalty of perjury).

–5– party claim that should have been brought” in her suit against Condie. She also contends that

because she argued to the Collin County trial court that the transfer would not cause a hardship or

injustice for any other party, any error in granting her motion to transfer venue is not reversible

error pursuant to section 15.002(b) of the civil practice and remedies code. See CIV. PRAC. & REM.

§ 15.002(b).

Section 15.062 provides that venue of the main action “shall establish venue” of any third-

party claim properly joined under the rules of civil procedure or any applicable statute. See CIV.

PRAC. & REM. § 15.062. The statute further provides that if an original defendant properly joins a

third-party defendant, venue shall be proper for a claim arising out of the same transaction,

occurrence, or series of transactions or occurrences by the plaintiff against the third-party

defendant if the claim arises out of the subject matter of the plaintiff’s claim against the original

defendant. See id. Section 15.062(a) is a mandatory venue provision that would thus control over

the permissive venue provision established by P.C. See Perryman, 546 S.W.3d at 132. However,

the record reflects no attempt, proper or otherwise, by Condie to join P.C. in McLaughin’s original

suit against her. Accordingly, we cannot conclude the 219th District Court properly granted

McLaughlin’s motion to transfer venue from Collin County to the 193rd District Court in Dallas

County based on section 15.062.

Section 15.002(b) of the civil practice and remedies code permits a court to transfer an

action from a county of proper venue to another county of proper venue on motion of a defendant

where the court finds:

(1) maintenance of the action in the county of suit would work an injustice to the movant considering the movant’s economic and personal hardship;

(2) the balance of interests of all the parties predominates in favor of the action being brought in the other county; and

(3) the transfer of the action would not work an injustice to any other party.

–6– CIV. PRAC. & REM. § 15.002(b).

The Collin County trial court’s order granting McLaughlin’s venue motion specifically

states that the trial court “does not base its ruling on Tex. Civ. Prac. & Rem. Code § 15.002(b).”

But even if the order had stated otherwise, McLaughlin failed to offer any evidence or even allege

in her motion that maintenance of the action in Collin County would work an injustice to her

considering her economic and personal hardship. See id. Accordingly, we cannot conclude the

219th District Court properly granted McLaughlin’s motion to transfer venue from Collin County

to the 193rd District Court in Dallas County based on section 15.002(b).

The foregoing addresses the statutes and arguments made by the parties to the trial court

and in their briefs to this Court. However, at oral argument, this Court questioned whether the

mandatory venue provision section 15.013 had any application in this case. See CIV. PRAC. &

REM. § 15.013.6 Additionally, at oral argument, this Court questioned whether the relief sought in

the instant suit would operate to restrain the 2016 judgment obtained by McLaughlin in the 193rd

District Court. P.C. responded it would not. And when this Court questioned whether the amounts

owed under the 2016 judgment would still be owed even if P.C. succeeded in the instant suit

against McLaughlin, P.C. responded affirmatively. Following oral argument, this Court requested

the parties submit supplemental briefing regarding applicability of section 15.013 or any common

law holdings that a final judgment of venue irrevocably fixes venue of any suit involving the same

subject matter and parties apply in this case. See, e.g., Miller v. State & Cnty. Mut. Fire Ins. Co.,

1 S.W.3d 709, 712–13 (Tex. App.—Fort Worth 1999, no pet.) (finding venue determination in

prior proceeding between parties or their privies dispositive in later dispute and makes venue

6 Section 15.013 of the civil practice and remedies code provides, “Actions to restrain execution of a judgment based on invalidity of the judgment or of the writ shall be brought in the county in which the judgment was rendered.”

–7– mandatory in former county in subsequent proceedings involving same subject matter and same

parties).7

In view of the briefing before us and P.C.’s assurances that the relief it seeks in this case

will not operate to alter or impede enforcement of the prior judgment, we will not further explore

the potential application of section 15.013 or Miller.

We sustain P.C.’s first issue.

Because we find that Collin County, the venue chosen by P.C., was a county of proper

venue, we hold that Dallas County as an improper venue as a matter of law. See Wilson v. Tex.

Parks & Wildlife Dep’t, 886 S.W.2d 259, 262 (Tex. 1994). The trial of this lawsuit in Dallas

County constitutes reversible error. See CIV. PRAC. & REM. § 15.064(b). In light of our resolution

of P.C.’s first issue, we need not address P.C.’s second issue challenging the Dallas County trial

court’s summary judgment in favor of McLaughlin. See Wilson, 886 S.W.2d at 262.

CONCLUSION

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.

/David J. Schenck/ DAVID J. SCHENCK JUSTICE

180085F.P05

7 We further requested the parties address whether this Court could consider either section 15.013 or the common law holding cited above in view of the posture of this case and this Court’s decision in St. John Missionary Baptist Church v. Flakes, 547 S.W.3d 311 (Tex. App.—Dallas 2018, pet. filed).

–8– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

KERRI D. CONDIE, P.C., Appellant On Appeal from the 193rd Judicial District Court, Dallas County, Texas No. 05-18-00085-CV V. Trial Court Cause No. DC-17-05911. Opinion delivered by Justice Schenck, MICHELLE MCLAUGHLIN, Appellee Justices Brown and Pedersen, III participating.

In accordance with this Court’s opinion of this date, 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 for proceedings consistent with the opinion.

It is ORDERED that appellant KERRI D. CONDIE, P.C. recover its costs of this appeal from appellee MICHELLE MCLAUGHLIN.

Judgment entered this 4th day of June 2019.

–9–