Opinion issued March 23, 2023
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00650-CV ——————————— RYAN MARINE SERVICES, INC. AND TRIONICS, LLC, Appellants V. ANTHONY HOFFMAN, AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF RAYMOND HERRERA, SR., SHERRY BEARDEN, RAYMOND HERRERA, JR., TABITHA HERRERA, STEVEN LEE EDISON, APRIL CORONA, INDIVIDUALLY AND AS REPRESENTATIVES OF THE ESTATE OF CONSTANTINO CORONA, AND MARIA DOLORES MONTENEGRO, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF JOSE ANTONIO ROBLES MONTENEGRO, Appellees
On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2022-00635
and ———————————— NO. 01-22-00713-CV ——————————— IN RE RYAN MARINE SERVICES, INC. AND TRIONICS, LLC, Relators
Original Proceeding on Petition for Writ of Mandamus
OPINION
There are two related proceedings pending before this Court. Appellants,
Ryan Marine Services, Inc. (“Ryan Marine”) and Trionics, LLC (“Trionics”)
(collectively, “appellants”), have filed an interlocutory appeal1 challenging the trial
court’s order denying their motions to transfer venue filed in the wrongful death and
survival suit2 of appellees, Anthony Hoffman, as personal representative of the estate
of Raymond Herrera, Sr. (“Raymond”), Sherry Bearden,3 Raymond Herrera, Jr.
(“Raymond Jr.”),4 Tabitha Herrera (“Tabitha”),5 Steven Lee Edison and April
Corona (“April”),6 individually and as representatives of the estate of Constantino
Corona (“Constantino”), and Maria Dolores Montenegro (“Maria”), individually
1 See TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(b); appellate cause no. 01-22-00650-CV. 2 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 71.001–.012, 71.021–.022. 3 Bearden is the surviving spouse of Raymond. 4 Raymond Jr. is the son of Raymond. 5 Tabitha is the daughter of Raymond. 6 April is the daughter of Constantino.
2 and as representative of the estate of Jose Antonio Robles Montenegro (“Jose”)
(collectively, “appellees”). In their sole issue,7 appellants contend that the trial court
erred in denying their motions to transfer venue of appellees’ instant suit from Harris
County, Texas to Galveston County, Texas.
Appellants have also filed a petition for writ of mandamus8 challenging the
trial court’s order denying their motions to transfer venue.9
We reverse the trial court’s order denying appellants’ motions to transfer
venue and remand. We dismiss appellants’ petition for writ of mandamus as moot.10
7 Although appellants list two issues in the “Issues Presented” section of their appellants’ brief, the second issue is not applicable to their interlocutory appeal. 8 Appellate cause no. 01-22-00713-CV. 9 The underlying case is Anthony Hoffman, as Personal Representative of the Estate of Raymond Herrera, Sr., Sherry Bearden, Raymond Herrera, Jr., Tabitha Herrera, Steven Lee Edison and April Corona, Individually and as Representatives of the Estate of Constantino Corona, and Maria Dolores Montenegro, Individually and as Representative of the Estate of Jose Antonio Robles Montenegro v. Ryan Marine Services, Inc. and Trionics, LLC, Cause No. 2022-00635, in the 234th District Court of Harris County, Texas, the Honorable Lauren Reeder presiding. 10 Cf. In re Bayer Crop Sci. L.P., No. 09-22-00232-CV, 2022 WL 16993400, at *1 (Tex. App.—Beaumont Nov. 17, 2022, orig. proceeding) (mem. op.) (dismissing relators’ mandamus petition as moot where appellate court reviewed trial court’s denial of motion to transfer venue through interlocutory appeal also filed by relators); Honeywell Int’l, Inc. v. Davis, No. 01-19-00013-CV, 2020 WL 4873562, at *4 n.7 (Tex. App.—Houston [1st Dist.] Aug. 20, 2020, no pet.) (mem. op.) (dismissing appellants’ alternative request for mandamus relief as moot where this Court concluded it had jurisdiction over appellants’ interlocutory appeal).
3 Background
In their petition, filed on January 5, 2022, appellees allege that on January 14,
2020, “a 600-foot tanker vessel” (the “tanker vessel”) “collided with a commercial
fishing vessel” (the “fishing vessel”) in the ship channel near Galveston, Texas. At
the time, Raymond, Constantino, Jose, and Edison were working crewmembers
aboard the fishing vessel. As a result of the collision, Raymond, Constantino, and
Jose drowned and Edison was injured. According to appellees, “[a]t all relevant
times,” the fishing vessel was unseaworthy.
Appellees further allege that before the collision, Ryan Marine, a Texas
corporation with its principal place of business in Galveston, performed maintenance
on various equipment onboard the fishing vessel but its employees failed to do so
consistent with the applicable standards of care. Ryan Marine’s actions caused, or
contributed to cause, the fishing vessel’s “incapacity and unseaworthy condition,”
which caused or contributed to the January 14, 2020 collision.
Appellees also allege that before the collision, Trionics, a limited liability
company with its principal place of business in Webster, Texas, inspected the fishing
vessel’s equipment “related to [the need for] potential repair work . . . for [the]
communications antennas . . . [on]board” the fishing vessel. Trionics’s employees
failed to properly identify the number of inoperable antennas on the fishing vessel,
and based on the representations made by Trionics, the port captain of the fishing
4 vessel “believed that there were two working antennas on the [fishing] vessel.” But,
in reality, only one antenna was working on the day of the collision, and had the port
captain been properly informed about the condition of the fishing vessel’s antennas,
he would not have allowed the fishing vessel to go out in the ship channel on January
14, 2020 with only one working antenna and a radio.
Appellees brought claims for negligence against appellants. As to their
negligence claims against Ryan Marine, appellees assert that Ryan Marine was
negligent in:
• Failing to provide proper and adequate equipment on the fishing vessel;
• Failing to maintain the fishing vessel and its appurtenances and/or equipment in a safe and reasonable state of repair;
• Failing to adequately inspect the fishing vessel and its appurtenances and/or equipment;
• Failing to assess the conditions onboard the fishing vessel and provide proper repairs;
• Failing to eliminate dangerous conditions on the fishing vessel;
• Failing to warn Raymond, Constantino, Jose, and Edison of the dangerous conditions on the fishing vessel;
• Failing to properly supervise its crews;
• Failing to property train its employees;
• Hiring its employees;
5 • Violating the applicable United States Coast Guard, Occupational Safety and Health Administration, and other local, state, and/or federal regulations;
• Failing to implement safety policies and procedures applicable to its subsidiary companies that were sufficient to minimize the risk to Jose and others; and
• Undertaking and breaching a duty to provide the service of maintenance on the fishing vessel, which was necessary for the protection of Jose, such that it increased the risk of harm to Jose and others.
According to appellees, the aforementioned acts or omissions by Ryan Marine
proximately caused the deaths of Raymond, Constantino, and Jose and appellees’
injuries and damages.
As to their negligence claims against Trionics, appellees assert that Trionics
was negligent in:
• Failing to provide proper and adequate equipment on the fishing vessel;
• Failing to communicate the condition of the equipment on the fishing vessel, including, but not limited to, the condition of the radios and antennas on board;
• Failing to adequately inspect the fishing vessel and its appurtenances and/or equipment;
• Failing to warn Raymond, Constantino, Jose, and Edison of the dangerous conditions on the fishing vessel;
• Failing to properly train its employees; and
6 • Hiring its employees.
Appellees allege that the acts or omissions by Trionics proximately caused the deaths
Raymond, Constantino, and Jose and appellees’ injuries and damages.
Appellants moved to transfer venue to Galveston County.11 In their motions
to transfer venue, appellants asserted that all of appellees’ claims arose out of the
January 14, 2020 collision between the tanker vessel and the fishing vessel near
Galveston and appellants’ alleged negligent acts and omissions related to that
collision. According to appellants, Hoffman, Bearden, Raymond Jr., and Tabitha
filed a wrongful death and survival suit against Ryan Marine on March 5, 2021 (the
“first suit”) in Harris County, alleging negligence claims against Ryan Marine.12
Also, on March 5, 2021, Edison and April filed a petition in intervention in the first
suit, asserting negligence claims against Ryan Marine.13 Maria filed a petition in
intervention in the first suit on July 1, 2021, asserting negligence claims against
11 Appellants filed separate motions to transfer venue, but the arguments raised within each motion were the same and both Ryan Marine and Trionics requested transfer of appellees’ instant suit to Galveston County. Thus, appellants’ motions to transfer venue will be discussed together. 12 See Anthony M. Hoffman, as Personal Representative of the Estate of Raymond Anthony Herrera, Sr., Sherry Bearden, Raymond Herrera, Jr., and Tabitha Herrera v. Ryan Marine Services, Inc., Cause No. 2021-12654, in the 61st District Court of Harris County, Texas. Trionics attached to its motion to transfer venue a copy of the March 5, 2021 petition filed in the first suit by Hoffman, Bearden, Raymond, Jr., and Tabitha. 13 Trionics attached to its motion to transfer venue a copy of the March 5, 2021 petition in intervention filed in the first suit by Edison and April.
7 Ryan Marine.14 All negligence claims asserted by appellees in the first suit arose
out of the January 14, 2020 collision between the tanker vessel and the fishing vessel.
While the first suit was pending in Harris County, Ryan Marine moved to
transfer venue to Galveston County,15 arguing that Harris County was not a proper
venue for the first suit because none “of the events giving rise to [the] alleged causes
of action” occurred in Harris County. Instead, “[a]ll events giving rise to [the]
alleged causes of action occurred in or just offshore of Galveston County in Texas
territorial waters.” Further, Ryan Marine’s principal place of business was located
in Galveston, and none of the plaintiffs resided in Harris County at the time their
alleged causes of action accrued.16
On May 6, 2021, the Harris County trial court in the first suit granted Ryan
Marine’s motion to transfer and ordered that the first suit be transferred to a district
14 Trionics attached to its motion to transfer venue a copy of the July 1, 2021 petition in intervention filed in the first suit by Maria. 15 Trionics attached to its motion to transfer venue a copy of Ryan Marine’s motion to transfer venue filed in the first suit. 16 See TEX. CIV. PRAC. & REM. CODE ANN. § 15.002(a) (providing generally “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; (2) in the county of [the] defendant’s residence at the time the cause of action accrued if [the] defendant is a natural person; (3) in the county of the defendant’s principal office in this [S]tate, if the defendant is not a natural person; or (4) if [s]ubdivisions (1), (2), and (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action”).
8 court in Galveston County.17 The trial court’s order granting Ryan Marine’s motion
to transfer venue stated that the trial court, “after considering [the] motion, the
pleadings on file, the agreement of the parties, the applicable law, the arguments of
counsel, if any, and the evidence presented, [was] of the opinion that . . . Ryan
Marine’s Motion to Transfer Venue ha[d] merit and should in all things be granted.”
Thus, the trial court “ordered, adjudged and decreed that . . . Ryan Marine’s Motion
to Transfer Venue [was] granted.”18 (Emphasis omitted.)
After the first suit was transferred to Galveston County, appellees, on January
5, 2022, filed a notice of nonsuit of the first suit without prejudice.19 And, that same
day, appellees filed their petition in Harris County in the instant wrongful death and
survival suit against appellants, alleging negligence claims against appellants arising
out of the January 14, 2020 collision between the tanker vessel and the fishing
vessel.20
17 See Anthony Hoffman, as the Personal Representative of the Estate of Raymond Herrera, Sr., Sherry Bearden, Raymond Herrera, Jr., and Tabitha Herrera v. Ryan Marine Services, Inc., Cause No. 21-CV-0674, in the 122nd District Court of Galveston County, Texas. 18 Trionics attached to its motion to transfer venue a copy of the Harris County trial court’s May 6, 2021 order in the first suit granting Ryan Marine’s motion to transfer venue. 19 Trionics attached to its motion to transfer venue a copy of the January 5, 2022 notice of nonsuit filed by appellees after the transfer of the first suit to Galveston County. 20 Trionics attached to its motion to transfer venue the January 5, 2022 petition filed by appellees in the instant suit.
9 Appellants, in their motions to transfer venue, argued that venue was not
proper in Harris County for the instant suit because, under the Texas Supreme
Court’s decision in In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (orig.
proceeding), “[o]nce a ruling is made on a motion to transfer venue . . . that decision
becomes final as to that issue and cannot be vitiated by [the] nonsuiting and refiling
[of a] case.”21 (Internal quotations omitted.) Here, in the first suit, the Harris County
trial court made a venue determination when it granted Ryan Marine’s motion to
transfer venue and ordered that the first suit be transferred to Galveston County. The
Harris County trial court’s decision on venue in the first suit was “conclusive and
venue for [appellees’] claims” arising out of the January 14, 2020 collision between
the tanker vessel and the fishing vessel was thus “permanently fixed” in Galveston
County. (Internal quotations omitted.) And according to appellants, appellees could
not circumvent the venue determination made by the Harris County trial court in the
first suit by nonsuiting the first suit and refiling the instant suit in Harris County.
Appellants noted that although appellees only sued Ryan Marine in the first
suit and not Trionics that fact did not change the “conclusive nature” of the Harris
County trial court’s venue determination in the first suit. (Internal quotations
omitted.) In fact, the Corpus Christi Court of Appeals had dealt with the exact same
issue in In re Lowe’s Home Centers, L.L.C., 531 S.W.3d 861 (Tex. App.—Corpus
21 See In re Team Rocket, L.P., 256 S.W.3d 257, 260 (Tex. 2008) (orig. proceeding).
10 Christi–Edinburg 2017, orig. proceeding). And relying on the Texas Supreme
Court’s decision in In re Team Rocket, the Corpus Christi Court of Appeals had
explained that “once a ruling regarding venue is made on the merits, that decision
becomes final as to that issue and cannot by vitiated by [the plaintiffs] nonsuiting
and refiling [a] case.”22 Further, the court of appeals concluded that “[t]he
substitution of some of the parties in the [plaintiffs’ new] . . . suit d[id] not affect the
conclusive nature of the . . . [trial] court’s venue determination” in the first suit filed
by the plaintiffs.23
Here, appellants argued that because the first suit and the instant suit involved
the same plaintiffs asserting the same claims for “injuries and wrongful deaths
arising out of” the January 14, 2020 collision between the tanker vessel and the
fishing vessel, appellees could not avoid the Harris County trial court’s venue
determination in the first suit by nonsuiting it after the case was transferred to
Galveston County and refiling suit in Harris County with Trionics as an additional
defendant. Appellants requested that the trial court grant their motions and transfer
appellees’ instant suit to Galveston County.
22 See In re Lowe’s Home Ctrs., L.L.C., 531 S.W.3d 861, 871 (Tex. App.—Corpus Christi–Edinburg 2017, orig. proceeding) (internal quotations omitted). 23 Id. at 873.
11 In their response to appellants’ motions to transfer venue, appellees asserted
that although appellants sought to have the instant suit transferred to Galveston
County, under Texas law, appellees, as the plaintiffs, had the right to select the
county of venue. And according to appellees, venue was proper in Harris County
because “all or a substantial part of the events or omissions giving rise to [appellees’]
claims occurred in Harris County” and the principal office of Trionics was located
in Harris County.24
Further, appellees argued that appellants were wrong that the first suit “fixed”
venue in Galveston County and the cases relied on by appellants—In re Team Rocket
and In re Lowe’s Home Centers—did not apply to the instant suit. According to
appellees, after the January 14, 2020 collision between the tanker vessel and the
fishing vessel, Hoffman, Bearn, Raymond, Jr., and Tabitha filed the first suit against
Ryan Marine in Harris County. On that same day, Edison and April intervened in
the first suit. Thereafter, Hoffman, Bearn, Raymond, Jr., Tabitha, Edison, and April
“agreed” with Ryan Marine that venue should be transferred to Galveston County,
and the Harris County trial court signed an “[a]greed [o]rder” transferring the first
suit to Galveston County. Maria did not file her petition in intervention until after
the first suit was transferred to Galveston County, and neither she nor Trionics was
part of the purported agreement to transfer the first suit to Galveston County.
24 See TEX. CIV. PRAC. & REM. CODE ANN. § 15.002(a).
12 Appellees further asserted that after the first suit was transferred to Galveston
County, they discovered that Trionics was “partially responsible” for the collision
between the tanker vessel and the fishing vessel because “its employees [had]
inspected [the] antenna and radio equipment onboard” the fishing vessel, but the
employees had “failed to identify the number of inoperable antennas.” And “[h]ad
the [p]ort [c]aptain been properly informed regarding the condition of the antennas
on the [fishing] vessel, he would not have allowed it to go out [in the ship channel]
on the date” of the collision. Thus, on January 5, 2022, appellees filed a notice of
nonsuit in the first suit, and when they filed suit in Harris County in the instant case,
they brought claims against both Ryan Marine and Trionics.25
After a hearing, the trial court, in an interlocutory order, denied appellants’
motions to transfer venue.
Jurisdiction
To begin with, appellees assert that this Court lacks appellate jurisdiction over
appellants’ interlocutory appeal, pending in appellate cause number
01-22-00650-CV, that challenges the trial court’s order denying appellants’ motions
to transfer venue. Instead, appellees assert that we must review appellants’
complaint that the trial court erred in denying appellants’ motions to transfer venue
25 Appellants filed a reply to appellees’ response to appellants’ motions to transfer venue.
13 in the mandamus proceeding filed by appellants, pending in appellate cause number
01-22-00713-CV.
Generally, we lack jurisdiction to review a trial court’s interlocutory ruling on
a motion to transfer venue. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.064(a)
(“No interlocutory appeal shall lie from the [trial court’s venue] determination.”);
TEX. R. CIV. P. 87(6); Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001);
Honeywell Int’l, Inc. v. Davis, No. 01-19-00013-CV, 2020 WL 4873562, at *4 (Tex.
App.—Houston [1st Dist.] Aug. 20, 2020, no pet.) (mem. op.); Sustainable Tex.
Oyster Res. Mgmt. L.L.C. v. Hannah Reef, Inc., 491 S.W.3d 96, 105 (Tex. App.—
Houston [1st Dist.] 2016, pet. denied); Tex. Windstorm Ins. Ass’n v. Boyle, No.
01-13-00874-CV, 2014 WL 527574, at *1 (Tex. App.—Houston [1st Dist.] Feb. 6,
2014, no pet.) (mem. op.). But as we have explained before, the Texas Legislature
has provided that in a suit involving more than one plaintiff, like this one, we have
interlocutory appellate jurisdiction to review a trial court’s determination of whether
“[each] plaintiff did or did not independently establish proper venue.”26 TEX. CIV.
PRAC. & REM. CODE ANN. § 15.003(b)(1); Honeywell, 2020 WL 4873562, at *4
(internal quotations omitted); Sustainable Tex. Oyster, 491 S.W.3d at 105–06; Boyle,
2014 WL 527574, at *1 (internal quotations omitted); see also Shamoun & Norman,
26 In response to appellants’ motions to transfer venue, appellees asserted that they had established proper venue in Harris County under Texas Civil Practice and Remedies Code section 15.002.
14 LLP v. Yarto Int’l Grp., LP, 398 S.W.3d 272, 285–87 (Tex. App.—Corpus Christi–
Edinburg 2012, pet. dism’d) (holding specific language in Texas Civil Practice and
Remedies Code section 15.003 trumped more general language in Texas Civil
Practice and Remedies Code section 15.064 and “interlocutory appeals [were]
available for venue determinations in any case involving multiple plaintiffs”
(emphasis added)).
Appellees assert that Texas Civil Practice and Remedies Code section
15.003(b) provides “only for [the] interlocutory review of whether each plaintiff
ha[d] established independent venue . . . factors” in a case and does not allow
interlocutory review of whether, “despite proper venue against multiple defendants,
a trial court must transfer a []suit to a different county because of a venue
determination in a prior []suit that involved only one of the defendants.” And
appellees assert that appellants are asking the Court to do the latter in the instant
case, which, according to appellees, is not permitted under Texas Civil Practice and
Remedies Code section 15.003(b).
Texas Civil Practice and Remedies Code section 15.003(b) states that in a suit
involving more than one plaintiff, “[a]n interlocutory appeal may be taken of a trial
court’s determination . . . that . . . a plaintiff did or did not independently establish
proper venue.” TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(b)(1). Notably, Texas
appellate courts have explained that “[i]n a multiple-plaintiff case, every order on a
15 motion to transfer venue will necessarily determine whether each plaintiff did or did
not independently establish proper venue.” See Jackson v. Jackson, No.
02-15-00102-CV, 2016 WL 5220069, at *3 (Tex. App.—Fort Worth Sept. 22, 2016,
pet. denied) (mem. op.); see also UPS Ground Freight, Inc. v. Trotter, 606 S.W.3d
781, 786 (Tex. App.—Tyler 2020, pet. denied) (stating interlocutory appeal under
Texas Civil Practice and Remedies Code section 15.003(b) available because case
involved multiple plaintiffs); Union Pac. R.R. v. Stouffer, 420 S.W.3d 233, 236–39
(Tex. App.—Dallas 2013, pet. dism’d) (noting Texas Civil Practice and Remedies
Code section 15.003(b) should be read broadly and stating “[i]n a multi-plaintiff
case, every venue ruling is necessarily a determination that a plaintiff did or did not
independently establish proper venue” (emphasis added)); Nalle Plastics Family
Ltd. P’ship v. Porter, Rogers, Dahlman & Gordon, P.C., 406 S.W.3d 186, 195 n.7
(Tex. App.—Corpus Christi–Edinburg 2013, pet. denied) (collecting cases and
noting “appellate courts have concluded . . . that interlocutory appeals are available
under []section 15.003(b) for any venue determination in a case involving multiple
plaintiffs” (emphasis added)). Stated differently, our sister appellate courts have
held that under Texas Civil Practice and Remedies Code section 15.003(b),
“interlocutory appeals are available for venue determinations in any case involving
multiple plaintiffs.” See, e.g., Shamoun & Norman, LLP, 398 S.W.3d at 285–87.
16 Here, we have a multiple-plaintiff case and an order from the trial court
denying appellants’ motions to transfer venue. These are the circumstances that
Texas appellate courts have held Texas Civil Practice and Remedies Code section
15.003(b) permits an interlocutory appeal from a trial court’s ruling. See, e.g.,
Jackson, 2016 WL 5220069, at *3; Stouffer, 420 S.W.3d at 236–39; Nalle Plastics,
406 S.W.3d at 195 n.7; Shamoun & Norman, LLP, 398 S.W.3d at 285–87; see also
Wagner & Brown, Ltd. v. Horwood, 53 S.W.3d 347, 350 (Tex. 2001) (Hecht, J.,
dissenting from denial of motion for rehearing of petition for review) (noting Texas
Legislature expanded jurisdiction of courts of appeals over “a wider variety of
interlocutory orders” and citing Texas Civil Practice and Remedies Code section
15.003 as example).
Further, even if appellees are correct that this Court may review appellants’
complaint that the trial court erred in denying their motions to transfer venue through
a mandamus proceeding,27 the existence of mandamus jurisdiction would not deprive
27 We note that venue determinations are generally not reviewable on mandamus. See In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999) (orig. proceeding); see also In re Build by Owner, LLC, No. 01-11-00513-CV, 2011 WL 4612790, at *3–4 (Tex. App.—Houston [1st Dist.] Oct. 6, 2011, orig. proceeding) (mem. op.); but see In re Fluor Enters., Inc., No. 13-11-00260-CV, 2011 WL 2463004, at *2 (Tex. App.— Corpus Christi–Edinburg June 13, 2011, orig. proceeding) (mem. op.) (“[M]andatory venue provisions may be enforced by mandamus.”). But the Texas Supreme Court has also held that mandamus review of erroneous venue determinations is appropriate in “extraordinary circumstances.” See In re Team Rocket, 256 S.W.3d at 262; see also In re Estate of Foust, 659 S.W.3d 487, 490–91 17 this Court of appellate jurisdiction to review appellants’ challenge to the trial court’s
order denying their motions to transfer venue through an interlocutory appeal under
Texas Civil Practice and Remedies Code section 15.003(b). In Bayer Crop Science,
LP v. Andy Timmons, Inc., No. 09-22-00204-CV, 2022 WL 16993420 (Tex. App.—
Beaumont Nov. 17, 2022, no pet.) (mem. op.), the defendants filed an interlocutory
appeal under Texas Civil Practice and Remedies Code section 15.003(b) after the
trial court denied their motion to transfer venue in a multiple-plaintiff case. 2022
WL 16993420, at *3. The defendants also filed a petition for writ of mandamus in
the appellate court, seeking to challenge the trial court’s denial of their motion to
transfer venue. Id.; see also In re Bayer Crop Sci. L.P., No. 09-22-00232-CV, 2022
WL 16993400, at *1 (Tex. App.—Beaumont Nov. 17, 2022, orig. proceeding)
(mem. op.). In the interlocutory appeal, the plaintiffs argued that the appellate court
did not have jurisdiction over the defendants’ interlocutory appeal from the trial
court’s ruling on their motion to transfer venue because the defendants were
“challeng[ing] a mandatory venue ruling” which was reviewable by mandamus
under Texas Civil Practice and Remedies Code section 15.0642. Bayer Crop, 2022
WL 16993420, at *3; see also TEX. CIV. PRAC. & REM. CODE ANN. § 15.0642. In
holding that it had jurisdiction under Texas Civil Practice and Remedies Code
(Tex. App.—Texarkana 2022, orig. proceeding); In re Build by Owner, 2011 WL 4612790, at *4.
18 section 15.003(b) over the defendants’ interlocutory appeal from the trial court’s
denial of the defendants’ motion to transfer venue, our sister appellate court
explained that in a multiple-plaintiff case where a defendant moves to transfer venue
to a county of mandatory venue both Texas Civil Practice and Remedies Code
sections 15.003(b) and 15.0642 applied and neither applied to the exclusion of the
other. Bayer Crop, 2022 WL 16993420, at *3. Thus, even though the defendants
had the option to pursue mandamus relief following the trial court’s denial of their
motion to transfer venue, the availability of mandamus as an avenue for relief did
not deprive the appellate court of jurisdiction to review the trial court’s interlocutory
order denying the defendants’ motion to transfer venue under Texas Civil Practice
and Remedies Code section 15.003(b) given that the underlying suit was a
multiple-plaintiff case. Id. Because the defendants—as the appellants—asserted
that the “appropriate vehicle for [the appellate court] to review their complaint[]
regarding the trial court’s venue ruling in th[e] multiple-plaintiff” case was through
the defendants’ interlocutory appeal,28 and because the appellate court had
jurisdiction to conduct such a review, the court proceeded with the defendants’
interlocutory appeal and dismissed the defendants’ petition for writ of mandamus as
28 Similarly, here, appellants assert that this Court has jurisdiction to review the trial court’s order denying their motions to transfer venue by interlocutory appeal.
19 moot. Id. at *3 & n.4; see also In re Bayer Crop Sci. L.P., 2022 WL 16993400, at
*1.
Based on the foregoing, we conclude that we have jurisdiction over
appellants’ interlocutory appeal challenging the trial court’s order denying
appellants’ motions to transfer venue. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 15.003(b)(1). Because we have concluded that we have jurisdiction over
appellants’ interlocutory appeal, we dismiss appellants’ petition for writ of
mandamus, filed in appellate cause number 01-22-00713-CV, as moot. See
Honeywell, 2020 WL 4873562, at *4 n.7 (where this Court concluded that it had
jurisdiction over interlocutory appeal, dismissing appellants’ alternative request for
mandamus relief as moot); see also In re Bayer Crop Sci. L.P., 2022 WL 16993400,
at *1.
Venue
In their sole issue, appellants argue that the trial court erred in denying their
motions to transfer venue of appellees’ instant suit from Harris County to Galveston
County because the Texas Rules of Civil Procedure “mandate only one venue
determination in a []suit,” the venue determination by the Harris County trial court
in the first suit “fixed venue in Galveston County” for appellees’ claims “arising out
of” the January 14, 2020 collision between the tanker vessel and the fishing vessel,
appellees cannot avoid the Harris County trial court’s venue order in the first suit
20 “by nonsuiting and refiling” their case in Harris County, and appellees “did not reset
venue by adding Trionics [as a defendant] in the[ir] re-filed suit.”
We review the trial court’s order denying appellants’ motions to transfer
venue de novo. TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(c)(1); Surgitek,
Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 603 (Tex. 1999); Boyle, 2014 WL
527574, at *2.
Under the general venue rule,29 all suits must be brought:
(1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;
(2) in the county of [the] defendant’s residence at the time the cause of action accrued if [the] defendant is a natural person;
(3) in the county of the defendant’s principal office in this [S]tate, if the defendant is not a natural person; or
(4) if [s]ubdivisions (1), (2), and (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action.
TEX. CIV. PRAC. & REM. CODE ANN. § 15.002(a); see also Gonzalez v. Reliant
Energy, Inc., 159 S.W.3d 615, 620–21 (Tex. 2005) (venue in wrongful death and
survival actions governed by section 15.002). Because venue may be proper in a
more than one county under the venue rule, a plaintiff is given the first choice of
29 The parties do not assert that a mandatory venue provision governs the instant suit. See United Parcel Serv., Inc. v. Norris, 635 S.W.3d 242, 246 (Tex. App.— Beaumont 2021, no pet.) (“When there is no mandatory venue, then the general venue rule [in Texas Civil Practice and Remedies Code section 15.002] applies.”).
21 venue in the filing of a suit. In re Team Rocket, 256 S.W.3d at 259; In re Masonite
Corp., 997 S.W.2d 194, 197 (Tex. 1999) (orig. proceeding); In re Adan Volpe
Props., Ltd., 306 S.W.3d 369, 374 (Tex. App.—Corpus Christi–Edinburg 2010, orig.
proceeding). But a defendant may challenge the plaintiff’s venue selection through
a motion to transfer venue. See In re Masonite Corp., 997 S.W.2d at 197; In re
Lowe’s Home Ctrs., 531 S.W.3d at 870; In re Adan Volpe Props., 306 S.W.3d at
374. If the defendant challenges the plaintiff’s venue choice, the plaintiff has the
burden to prove that venue is maintainable in the county in which he filed suit. TEX.
R. CIV. P. 87(2)(a), (3)(a); Boyle, 2014 WL 527574, at *2; In re Adan Volpe Props.,
306 S.W.3d at 374; Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673,
678 (Tex. App.—Austin 2003, no pet.). If the plaintiff does not establish proper
venue, the trial court must transfer venue to the county specified in the defendant’s
motion to transfer if the defendant has requested transfer to a county of proper venue.
In re Masonite Corp., 997 S.W.2d at 197; Boyle, 2014 WL 527574, at *2; see also
TEX. CIV. PRAC. & REM. CODE ANN. § 15.063; TEX. R. CIV. P. 87(2). The question
of venue cannot be relitigated once venue is either (1) “sustained as against a motion
to transfer” or (2) transferred to a county of proper venue in response to a motion to
transfer. See TEX. R. CIV. P. 87(5), (6); In re Rino-K&K Compression, Inc., 656
S.W.3d 153, 158 (Tex. App.—Eastland 2022, orig. proceeding); see also In re
C.B.B., No. 12-12-00106-CV, 2013 WL 1046323, at *2 n.1 (Tex. App.—Tyler Mar.
22 13, 2013, pet. denied) (mem. op.) (Texas Rule of Civil Procedure 87 permits only
one venue determination).
Appellees filed the instant suit against appellants in Harris County and alleged
in their petition that venue was proper in Harris County under Texas Civil Practice
and Remedies Code section 15.002. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 15.002(a). In their response to appellants’ motions to transfer venue, appellees
asserted that venue for the instant suit was proper in Harris County because “all or a
substantial part of the events or omissions giving rise to [their] claims occurred in
Harris County” and Trionics’s principal office was located in Harris County. See id.
In contrast, in their motions to transfer venue, appellants argued that venue for the
instant suit was proper in Galveston County because the Harris County trial court in
the first suit determined that venue was proper in Galveston County for any of
appellees’ claims arising out of the January 14, 2020 collision between the tanker
vessel and the fishing vessel.
The question of whether the trial court erred in denying appellants’ motions
to transfer venue of the instant suit to Galveston County is guided by the Texas
Supreme Court’s decision in In re Team Rocket. In In re Team Rocket, the plaintiffs
brought a wrongful death and survival suit against the defendants in Harris County—
the county in which the plaintiffs resided. 256 S.W.3d at 258–59. The defendants
moved to transfer venue, arguing that venue was not proper in Harris County. Id.
23 The Harris County trial court agreed, granted the defendants’ motion to transfer
venue, and transferred the plaintiffs’ suit to Williamson County, Texas—the
principal place of business for the defendants. Id. at 259; see also TEX. CIV. PRAC.
& REM. CODE ANN. § 15.002(a). After the plaintiffs’ suit was transferred to
Williamson County, the plaintiffs voluntarily nonsuited their case, and immediately
refiled their claims against the defendants in Fort Bend County, Texas. In re Team
Rocket, 256 S.W.3d at 259. The defendants then moved to transfer the plaintiffs’
new Fort Bend County suit to Williamson County “based on the Harris County trial
court’s prior venue order and the doctrine of collateral estoppel.” Id. The Fort Bend
County trial court, however, denied the defendants’ motion to transfer venue, and
the defendants sought mandamus relief. Id.
In determining whether the defendants were entitled to mandamus relief, the
Texas Supreme Court stated that it needed to decide the question of whether a
plaintiff may use the procedural vehicle of nonsuiting a case to avoid an unfavorable
venue ruling. Id. In doing so, the court explained that a plaintiff gets the first choice
of venue by filing suit, but a defendant may challenge the plaintiff’s venue selection,
and a trial court must transfer the suit to another county of proper venue if the county
in which the plaintiff brought suit is not a proper county. Id. According to the Texas
Supreme Court, although the plaintiffs in In re Team Rocket initially filed suit in
Harris County, the defendants challenged venue because the defendants did not
24 reside in Harris County and a substantial portion of the events giving rise to the
plaintiffs’ causes of action did not occur in Harris County. Id. (citing TEX. CIV.
PRAC. & REM. CODE ANN. § 15.002(a)(1), (2)). The Harris County trial court then
determined that Harris County was not a proper venue for the plaintiffs’ suit and
transferred the plaintiffs’ suit to Williamson County—a county with proper venue.
Id.
In their petition for writ of mandamus, the defendants argued that the Fort
Bend County trial court, in the plaintiffs’ new suit, erred in denying their motion to
transfer venue to Williamson County because only one venue determination may be
made in a proceeding and Texas Rule of Civil Procedure 87 specifically prohibited
changes in venue after an initial venue ruling. Id.; see also TEX. R. CIV. P. 87(5).
The Texas Supreme Court agreed, explaining that once a venue ruling is made on
the merits the decision becomes final as to that issue and cannot be vitiated by the
plaintiffs nonsuiting and refiling the case. In re Team Rocket, 256 S.W.3d at 259–
60. Stated differently, the supreme court determined that a decision fixing venue in
a particular county could not be circumvented by the plaintiffs nonsuiting and
refiling a case. Id. at 260. This decision was “rooted in the long-standing and
fundamental judicial doctrines of res judicata and collateral estoppel, which
promote[d] judicial efficiency, protect[ed] parties from multiple lawsuits, and
25 prevent[ed] inconsistent judgments by precluding the relitigation of matters that
ha[d] already been decided.” Id. (internal quotations omitted).
Thus, the Texas Supreme Court, in In re Team Rocket, concluded that once a
venue determination has been made, that determination is conclusive as to those
parties and claims; and because venue is then fixed in any suit involving the same
parties and claims, it cannot be overcome by a nonsuit and subsequent refiling in
another county. Id. Applying its conclusion to the case before it, the supreme court
explained that once the Harris County trial court transferred the plaintiffs’ suit to a
proper venue in Williamson County, venue was fixed permanently in Williamson
County for the claims between the plaintiffs and the defendants. Id. Accordingly,
the Texas Supreme Court held that the Fort Bend County trial court erred in refusing
to enforce the Harris County trial court’s previous venue order, and the plaintiffs’
new Fort Bend County suit should have been transferred to Williamson County. Id.
at 258, 260, 263.
Appellees argue that In re Team Rocket is inapplicable to the instant suit
because their January 5, 2022 petition in the instant suit in Harris County added
Trionics as a defendant and “new claims” against Trionics and neither Trionics nor
the “new claims” against Trionics were included in the first suit. Thus, according to
appellees, the first suit and the instant suit did not involve the “same parties and
claims,” making In re Team Rocket inapplicable. See id. at 260 (stating “once a
26 venue determination has been made, that determination is conclusive as to those
parties and claims” and “venue is then fixed in any suit involving the same parties
and claims”).
But appellees neglect to consider the overarching principles emphasized by
the Texas Supreme Court in In re Team Rocket. For instance, in In re Team Rocket,
the supreme court generally stated that a decision fixing venue in a particular county
cannot be circumvented by the nonsuiting and refiling of a case, explaining that such
a conclusion promoted judicial efficiency, protected parties from multiple lawsuits,
and prevented inconsistent judgments by precluding the relitigation of matters that
had already been decided. Id. Further, the supreme court noted that any other
conclusion would allow forum shopping, “a practice [that the court] ha[d] repeatedly
prohibited.” Id. at 260–61. And the court expressed disapproval of the idea that a
plaintiff could avoid a “venue ruling[] simply by nonsuiting and refiling.” Id.
Instead, the supreme court reinforced the rationale that a defendant should be
protected from the harassment and expense of several contests on the issue of venue.
Id. at 261. Finally, the court explained that a plaintiff’s only remedy when he loses
a venue determination is to proceed with trial in the transferee county and appeal
any judgment from the transferee trial court on the basis of alleged error in the venue
ruling. Id. And any attempt to circumvent a venue ruling “by nonsuiting and
refiling” was prohibited. Id. at 260–61; see also Epps v. Fowler, 351 S.W.3d 862,
27 870 (Tex. 2011) (noting court disfavors nonsuits that are filed to circumvent
unfavorable rulings).
Additionally, we note that our sister appellate court has specifically addressed
the applicability of In re Team Rocket to a suit in which the plaintiffs nonsuited after
a venue determination and the plaintiffs also added additional defendants and claims
in their refiled suit. See In re Lowe’s Home Ctrs., 531 S.W.3d at 864–74, 878 In In
re Lowe’s Home Centers, after a propane explosion at a home, the plaintiffs filed
suit in Starr County, Texas against Lowe’s Home Centers, L.L.C. (“Lowe’s”) and
other defendants for negligence, negligent misrepresentation, negligence per se,
strict products liability, and gross negligence. Id. at 864–65. After Lowe’s and the
other defendants moved to transfer venue to Cameron County, Texas, the trial court
denied the motion, and the plaintiffs’ suit remained pending in Starr County. Id. at
865–67. The plaintiffs later discovered that their venue representations as to Starr
County had been “fraudulent,” and they nonsuited their Starr County suit and filed
a new suit in Hidalgo County, Texas. Id. at 867–68 (internal quotations omitted).
The plaintiffs’ petition filed in the new Hidalgo County suit was substantially similar
and nearly-identical to the petition previously filed by the plaintiffs in the Starr
County suit, except for the omission of a few defendants and the addition of new
defendants. Id. In the new Hidalgo County suit, the plaintiffs brought claims against
Lowe’s and other defendants for negligence, fraudulent misrepresentation, fraud by
28 nondisclosure, negligence per se, strict products liability, and gross negligence.30 Id.
at 868.
Lowe’s and the other defendants filed motions to dismiss the new Hidalgo
County suit, or alternatively to transfer the plaintiffs’ new suit back to Starr County,
asserting that Texas law prohibited the plaintiffs from nonsuiting and refiling their
case after the Starr County trial court had made a venue determination. Id.
Ultimately, the trial court in the new Hidalgo County suit denied the motion to
dismiss and Lowe’s and the other defendants’ alternative request to transfer venue
to Starr County. Id.
Lowe’s then filed a petition for writ of mandamus, asserting that the trial court
erred in refusing to dismiss or transfer the plaintiffs’ new Hidalgo County suit to
Starr County because there could be no more than one venue determination in any
suit, and the Starr County trial court’s original venue determination precluded the
plaintiffs from bringing their new suit in Hidalgo County. Id. at 868–70. In
response, the plaintiffs asserted that dismissal or transfer of their new Hidalgo
County suit to Starr County was not proper because their new Hidalgo County suit
was sufficiently distinct from their Starr County suit, and thus, should be allowed to
proceed in Hidalgo County. Id. at 870–71.
30 These are not the exact same claims that the plaintiffs alleged in their Starr County suit.
29 Relying on the Texas Supreme Court’s decision in In re Team Rocket, the
Corpus Christi Court of Appeals disagreed with the plaintiffs, explaining that “once
a ruling regarding venue is made on the merits, that decision becomes final as to that
issue and cannot by vitiated by [the] nonsuiting and refiling [of] the case.” Id. at
871 (internal quotations omitted). The court of appeals noted that the plaintiffs had
asserted that their new Hidalgo County suit was distinct from their previously filed
Starr County suit because they had dropped all of their claims against three
defendants and they had added new defendants with “unique” claims against those
new defendants. Id. at 872 (internal quotations omitted). But the appellate court
explained that once the Starr County trial court made its venue determination, that
venue determination could not be overcome by a nonsuit and subsequent refiling in
another county. Id. at 872–73. In reaching such a conclusion, the court emphasized
that the new Hidalgo County suit concerned the exact same subject matter as the
plaintiffs’ previously filed Starr County suit—both cases were based on the
explosion of the propane tank and the resulting injuries and wrongful death claims—
and the only change between the two suits was the omission of a few defendants and
the addition of a few new defendants and claims against those new defendants. Id.
at 873–74. According to the Corpus Christi Court of Appeals: “The substitution of
some of the parties in the [plaintiffs’ new] Hidalgo County suit d[id] not affect the
conclusive nature of the Starr County [trial] court’s venue determination . . . .” Id.
30 We see no reason to reach a different conclusion in the instant case than our
sister appellate court did in In re Lowe’s Home Centers. Here, all of appellees’
claims arise out of the January 14, 2020 collision between the tanker vessel and the
fishing vessel near Galveston. Initially, Hoffman, Bearden, Raymond Jr., and
Tabitha filed the first suit against Ryan Marine in Harris County, alleging negligence
claims against Ryan Marine. Edison and April filed a petition in intervention in the
first suit also alleging negligence claims against Ryan Marine. And Maria filed a
petition in intervention in the first suit, asserting negligence claims against Ryan
Marine.
While the first suit was pending in Harris County, Ryan Marine moved to
transfer venue to Galveston County, arguing that Harris County was not a proper
venue for the first suit because none “of the events giving rise to [the] alleged causes
of action” in the first suit occurred in Harris County. Instead, “[a]ll events giving
rise to [the] alleged causes of action occurred in or just offshore of Galveston County
in Texas territorial waters.” Further, Ryan Marine’s principal place of business was
located in Galveston, and none of the plaintiffs resided in Harris County at the time
their alleged causes of action accrued. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 15.002(a) (providing generally “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; (2) in the county of [the] defendant’s residence at the time the cause of
31 action accrued if [the] defendant is a natural person; (3) in the county of the
defendant’s principal office in this [S]tate, if the defendant is not a natural person;
or (4) if [s]ubdivisions (1), (2), and (3) do not apply, in the county in which the
plaintiff resided at the time of the accrual of the cause of action”).
On May 6, 2021, the Harris County trial court in the first suit granted Ryan
Marine’s motion to transfer and ordered that the first suit be transferred to a district
court in Galveston County. The trial court’s order granting Ryan Marine’s motion
to transfer venue stated that the trial court, “after considering [the] motion, the
pleadings on file, the agreement of the parties, the applicable law, the arguments of
counsel, if any, and the evidence presented, [was] of the opinion that . . . Ryan
Marine’s Motion to Transfer Venue ha[d] merit and should in all things be granted.”
Thus, the Harris County trial court “ordered, adjudged and decreed that . . . Ryan
Marine’s Motion to Transfer Venue [was] granted.” (Emphasis omitted.)
But, after the first suit was transferred to Galveston County, appellees, on
January 5, 2022, filed a notice of nonsuit without prejudice in the first suit. And,
that same day, appellees filed their petition in Harris County in the instant suit,
alleging negligence claims against appellants arising out of the January 14, 2020
collision between the tanker vessel and the fishing vessel.
Relying on the Texas Supreme Court’s decision in In re Team Rocket, we
must conclude, like the Corpus Christi Court of Appeals did in In re Lowe’s Home
32 Centers, that “once a ruling regarding venue [has been] made on the merits, that
decision [is] final as to that issue and cannot be vitiated by [appellees’] nonsuiting
and refiling” of their case. See In re Lowe’s Home Ctrs., 531 S.W.3d at 871 (internal
quotations omitted); see also In re Shell Oil Co., 128 S.W.3d 694, 696 (Tex. App.—
Beaumont 2004, orig. proceeding) (“If an action has been transferred to a proper
county in response to a motion to transfer, . . . [v]enue of any subsequent suit
involving the same subject matter . . . as the initial suit is governed by the venue
determination in the initial suit.”). Here, like in In re Lowe’s Home Centers,
appellees’ first suit and their instant suit concern the exact same subject matter—the
January 14, 2020 collision between the tanker vessel and the fishing vessel. See 531
S.W.3d at 873. The only difference between the two suits is the addition of Trionics
as a defendant and the alleged negligence claims against Trionics in the instant suit.
In fact, other than the addition of Trionics as a defendant and the claims against it,
appellees’ January 5, 2022 petition filed in the instant suit is substantially similar to
the petition and the petitions in intervention filed in the first suit. Notably, the
addition of a party and a claim against that party, in the instant suit “does not affect
the conclusive nature of the [Harris] County [trial] court’s venue determination” in
the first suit. Id. at 873–74. After all, a decision fixing venue in a particular county
33 cannot be circumvented by the plaintiffs nonsuiting and refiling their case.31 Id. at
878 (appellate courts “[look] with disfavor on nonsuits that are filed to circumvent
legal restrictions or unfavorable rulings” (alteration in original) (internal quotations
omitted)); see also Epps, 351 S.W.3d at 870 (noting supreme court disfavors
nonsuits that are filed to circumvent unfavorable rulings); Bruington Eng’g, Ltd. v.
Pedernal Energy, L.L.C., 403 S.W.3d 523, 532 (Tex. App.—San Antonio 2013, no
pet.).
Appellees also argue that In re Team Rocket is inapplicable to the instant suit
because unlike the plaintiffs in In re Team Rocket, appellees agreed to transfer venue
of the first suit to Galveston County, meaning that the Harris County trial court in
the first suit never made a “venue determination” that would fix venue in Galveston
County. Cf. In re Team Rocket, 256 S.W.3d at 260 (stating “once a venue
determination has been made, that determination is conclusive” and “venue is then
fixed”). But appellees misinterpret the Harris County trial court’s transfer order in
the first suit.
31 As our sister appellate court has explained: “A plaintiff who takes a nonsuit without prejudice is . . . subject to the preclusive effect of any prior venue determination by the trial court. . . . [T]his preclusive effect . . . means that the plaintiff must file any later suit in the venue determined by the trial court in the first case, and if the plaintiff does not do so, the case will be transferred to that venue.” Lacy v. Castillo, 580 S.W.3d 830, 840 n.21(Tex. App.—Houston [14th Dist.] 2019, no pet.) (Frost, C.J., concurring).
34 In the first suit, Ryan Marine moved to transfer venue from Harris County to
Galveston County, arguing that venue for the first suit was not proper in Harris
County because none “of the events giving rise to [the] alleged causes of action”
occurred in Harris County. Instead, “[a]ll events giving rise to [the] alleged causes
of action occurred in or just offshore of Galveston County in Texas territorial
waters.” Further, Ryan Marine’s principal place of business was located in
Galveston, and none of the plaintiffs resided in Harris County at the time their
alleged causes of action accrued. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 15.002(a). Thus, Ryan Marine requested that the Harris County trial court grant
its motion and transfer the first suit to Galveston County. Cf. In re K2 Waste Sols.,
LLC, No. 13-20-00325-CV, 2020 WL 6703832, at *4 (Tex. App.—Corpus Christi–
Edinburg Nov. 12, 2020, orig. proceeding) (mem. op.) (stating trial court could not
have made a “final determination fixing venue” because defendants had never been
asked it to do so (internal quotations omitted)).
Thereafter, the Harris County trial court granted Ryan Marine’s motion to
transfer venue and ordered that the first suit be transferred to a district court in
Galveston County. The Harris County trial court’s order granting Ryan Marine’s
motion to transfer specifically stated that the trial court, “after considering [the]
motion, the pleadings on file, the agreement of the parties, the applicable law, the
arguments of counsel, if any, and the evidence presented, [was] of the opinion
35 that . . . Ryan Marine’s Motion to Transfer Venue ha[d] merit and should in all
things be granted.” And that it “ordered, adjudged and decreed that . . . Ryan
Marine’s Motion to Transfer Venue [be] granted.” (Emphasis omitted.) To the
extent that appellees “agreed” that venue for the first suit was proper in Galveston
County, the Harris County trial court could have considered that agreement when
making its venue determination, but it was not bound by any agreement. See TEX.
R. CIV. P. 87(3)(b) (trial court “shall determine the motion to transfer venue on the
basis of the pleadings, any stipulations made by and between the parties and such
affidavits and attachments as may be filed by the parties” (emphasis added)); see
also Shamount & Norman, LLP, 398 S.W.3d at 288–89 (explaining, even if parties
had agreement regard transfer of venue, trial court not bound to transfer case unless
it was established that the transferee court was “a proper venue” and concluding
parties’ agreed motion to transfer could not, by itself, compel trial court to transfer
case to other county (internal quotations omitted)). Further, the substance of the
Harris County trial court’s order shows that the court actually ruled on the merits of
Ryan Marine’s motion to transfer venue.32 See Clark v. Clark, 638 S.W.3d 829, 835
32 To the extent that appellees make additional arguments that the Harris County trial court’s transfer of the first suit was a “consensual transfer” and the effect of the “consensual transfer” on the outcome of this case, we need not address them because the trial court’s order shows that it transferred the first suit to Galveston County based on its decision to grant Ryan Marine’s motion to transfer venue. See TEX. R. APP. P. 47.1.
36 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (courts give effect to order’s
substance rather than its title or form). We conclude that the Harris County trial
court in the first suit made a “venue determination,” contrary to appellees’ assertion.
Based on the foregoing and relying on the Texas Supreme Court’s decision in
In re Team Rocket and our sister appellate court’s decision in In re Lowe’s Home
Centers, we conclude that the Harris County trial court’s ruling in the first suit that
venue was proper in Galveston County was final and could not be vitiated by
appellees’ nonsuiting of the first suit and refiling of their case in Harris County. See
In re Team Rocket, 256 S.W.3d at 260; In re Lowe’s Home Ctrs., 531 S.W.3d at 871;
see also In re Adan Volpe Props., 306 S.W.3d at 373 (“[O]nce a ruling is made on
venue, that decision becomes final and cannot be vitiated by nonsuiting and
refiling.”). Thus, we hold that the trial court erred in denying appellants’ motions to
transfer venue of the instant suit to Galveston County.
We sustain appellants’ sole issue.
37 Conclusion
We reverse the trial court’s order denying appellants’ motions to transfer
venue and remand this case to the trial court with instructions to transfer the case to
Galveston County. We dismiss appellants’ petition for writ of mandamus as moot.
Julie Countiss Justice
Panel consists of Chief Justice Adams and Justices Countiss and Rivas-Molloy.