In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-19-00304-CV ________________
UNITED PARCEL SERVICE, INC. AND BRYON KEITH BISOR, Appellants
V.
ALLEN NORRIS, DELORIS NORRIS, AND FABIAN DARRELL WILLIAMS, Appellees ________________________________________________________________________
On Appeal from the 58th District Court Jefferson County, Texas Trial Cause No. A-201,842 ________________________________________________________________________
OPINION
Appellants, United Parcel Service, Inc. (UPS) and Byron K. Bisor (Bisor)
appeal the trial court’s judgment in favor of Appellees, Fabian Darrell Williams
(Williams) and Allen and Deloris Norris (the Norrises). On appeal, UPS raises four
issues, including challenging the trial court’s denial of UPS’s motion to transfer
venue in a multi-plaintiff lawsuit. See Tex. Civ. Prac. & Rem. Code Ann. § 15.003;
1 Tex. R. Civ. P. 87.1 Other issues raised by Appellants concern the trial court’s denial
of Appellants’ jury demand, allowing Appellees’ non-retained testifying experts to
testify without prior disclosure and a complaint that the evidence was legally and
factually insufficient to support the trial court’s award of certain damages.
Because we conclude that venue was not proper in the county of suit and
would have been proper in Harris County, the county to which UPS and Bisor sought
transfer, we reverse the trial court’s judgment, order it set aside and remand the case
to the trial court with instructions to transfer the case to Harris County, Texas, for a
new trial. Additionally, because we determine that venue was not proper in Jefferson
County, we need not consider the other points raised by appellants on appeal. See
Tex. R. App. P. 47.1.
Background
In March 2018, due to a traffic incident on the highway ahead of him,
Gregorio Flores was stopped in his vehicle in an eastbound lane of Interstate 10 in
Louisiana. Williams and Allen Norris, traveling in separate vehicles, were stopped
in the eastbound lane behind Flores. Byron Bisor was driving a UPS 18-wheeler
1 The plaintiff gets the first choice of venue by filing suit. In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999). A defendant may challenge that venue selection, and a court must “transfer an action to another county of proper venue if . . . the county in which the action is pending is not a proper county.” Tex. Civ. Prac. & Rem. Code § 15.063(1); see Tex. R. Civ. P. 87 (procedures for filing motions to transfer venue). 2 tractor rig eastbound on Interstate 10 and when his rig approached the stopped
vehicles ahead of him, Bisor failed to notice traffic stopped in front of him in time
to apply his brakes and stop. Bisor struck at least two vehicles in front of him,
including those of Allen Norris and Williams, causing a chain reaction involving
multiple vehicles. The impact from the UPS tractor-trailer rig driven by Bisor pushed
Williams’s vehicle into Flores’s vehicle.
Flores sued UPS, Bisor, and Williams in Jefferson County, Texas, claiming
their negligence contributed to or caused the accident and was the “proximate cause
of the resulting damages and injuries suffered to and by the Plaintiff.”2 Flores
alleged, in part, that Williams was a resident of Jefferson County at the time of the
accident and that his negligence, failing to maintain a safe distance behind the Flores
vehicle, was a proximate cause of the accident. UPS and Bisor filed a Motion to
Transfer Venue to Harris County, where Bisor resided when the accident occurred,
together with their answer and jury trial demand.
Williams answered the Flores suit and filed his own cross-action against UPS
and Bisor for negligence. Williams pleaded no independent venue facts, other than
to repeat that venue was proper in Jefferson County because of his residency there.
2 Flores, Williams and the Norrises alleged that UPS was responsible for Bisor’s negligence under the doctrine of respondent superior because he was employed by UPS and acted in the course and scope of his employment when the accident occurred. 3 UPS scheduled a hearing on the Motion to Transfer Venue, providing the
parties in the lawsuit at the time at least forty-five days’ notice of the hearing. After
the notice of hearing was sent out but before the scheduled hearing, the Norrises
intervened in the Flores suit also asserting negligence claims against UPS and Bisor.
The Norrises did not plead any independent venue facts. Thereafter, UPS and Bisor
again objected to venue in Jefferson County and sought to transfer the case to Harris
County, where Bisor resided, and UPS requested a jury trial. In the motion to transfer
venue, UPS and Bisor asserted that pursuant to Texas Civil Practice and Remedies
Code section 15.003, the Norrises, as intervenors, had not established proper venue
in Jefferson County independent of Flores or Williams. Prior to the hearing, Flores
and Williams each filed a response to the motion to transfer venue. The trial court
denied the motion to transfer venue.
On March 7, 2019, sixty-seven days prior to trial, the trial court signed a
partial summary judgment finding Bisor’s negligence was the sole cause of the
accident and finding that no negligence on the part of any other person or entity
caused or contributed to the crash. Thereafter, at a pretrial conference on May 9,
2019, the trial court ruled that UPS had failed to timely pay the jury fee, and the case
was then tried in a bench trial to the court. The trial court entered a judgment finding
Bisor was negligent and solely responsible for causing the accident and the trial court
4 awarded damages to the Norrises and Williams.3 The trial court filed separate
Findings of Fact and Conclusions of Law. UPS and Bisor timely appealed.
Venue Issues
The issue before us is not whether the trial court erred when it determined the
motion to transfer venue at the venue hearing. Instead, we must decide: (1) whether
venue was proper in the county of suit; and (2) whether venue would have been
proper in the county to which the moving defendant sought transfer, based on a
review of the entire record. See Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b); Dan
R. Price, New Texas Venue Statute: Legislative History, 15 ST. MARY’S L.J. 855,
878 (1984).
Standard of Review
In reviewing venue, an appellate court conducts an independent review of the
entire record to determine whether any probative evidence supports the trial court’s
venue decision. See Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b); Wilson v. Tex.
Parks & Wildlife Dept., 886 S.W.2d 259, 261–62 (Tex. 1994); Ruiz v. Conoco, 868
S.W.2d 752, 757–58 (Tex. 1993). We review the record in the light most favorable
to the trial court’s venue ruling, but we do not give deference to the trial court’s
3 On the first day of trial, the parties announced Flores’s claims against UPS and Bisor had been resolved. After the judgment was signed, Flores filed a notice wherein he nonsuited his claims against UPS and Bisor and nonsuited his claims against Williams. Flores is not a party to this appeal. 5 application of the law. KW Constr. v. Stephens & Sons Concrete Contractors, Inc.,
165 S.W.3d 874, 879 (Tex. App.—Texarkana 2005, pet. denied); see also Ruiz, 868
S.W.2d at 757–58. If probative evidence supports venue in the county of suit, then
we will affirm the trial court’s ruling, otherwise we will reverse the ruling. See Ruiz,
868 S.W.2d at 758.
In Ruiz v. Conoco, the Texas Supreme Court explained,
In deciding a motion to transfer venue, the trial court is required by Rule 87, Tex. R. Civ. P., to take as true those facts of which prima facie proof is made by the party with the burden of such proof; yet in reviewing the trial court’s decision, an appellate court must reverse (there cannot be harmless error) if other evidence in the record, even evidence adduced after venue was determined, destroys the prima facie proof on which the trial court relied. . . . If there is any probative evidence in the entire record, including trial on the merits, then venue was proper in the county where judgment was rendered, the appellate court must uphold the trial court’s determination. If there is no such evidence, the judgment must be reversed, and the case remanded to the trial court.
868 S.W.2d at 757–58.
It is undisputed that no mandatory venue provision governs this case. When
there is no mandatory venue, then the general venue rule applies. See Tex. Civ. Prac.
& Rem. Code Ann. § 15.002. Under the general venue rule, a suit must be brought
in one of the following counties: (1) in the county where all or a substantial part of
the events giving rise to the claim occurred; (2) in the county of the defendant’s
residence when the cause of action accrued, if the defendant is a natural person; (3)
in the county of the defendant’s principal office in Texas, if the defendant is not a 6 natural person; or (4) in the county where the plaintiff resided when the action
accrued if none of the other provisions apply. Id. § 15.002(a).
Because this case involves multiple plaintiffs, each plaintiff, independent of
the other, must establish proper venue. See id. § 15.003(a). We evaluate Williams’s
and the Norrises’ allegations below to determine whether each independently
established proper venue in Jefferson County. 4
Analysis
UPS maintains that neither Williams nor the Norrises established venue would
be proper in Jefferson County. At the time UPS and Bisor filed their initial motion
to transfer venue, the sole basis for placing venue in Jefferson County was Gregorio
Flores’s allegation that Defendant Fabian Williams was negligent and that his
4 We note that Texas Civil Practice and Remedies Code section 15.003(b) provides an exception to Texas Rule of Civil Procedure 87(6)’s general ban on interlocutory appeals regarding venue in suits with multiple plaintiffs. See Tex. Civ. Prac. & Rem. Code Ann. § 15.003(a)–(b); Tex. R. Civ. Proc. 87(6). Section 15.003(b) permits an interlocutory appeal from venue determination, but the interlocutory appeal is not mandatory and does not preclude our review of this issue on appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 15.003(b) (emphasis added) (“An interlocutory appeal may be taken of a trial court’s determination under Subsection (a) that: (1) a plaintiff did or did not independently establish proper venue; or (2) a plaintiff that did not independently establish proper venue did or did not establish the items prescribed by Subsections (a)(1)-(4)”); see also Basic Energy Servs. GP, L.L.C. v. Gomez, 398 S.W.3d 734, 737 (Tex. App.—San Antonio 2010, order) (per curiam), disp. on merits, No. 04-10-00128-CV, 2010 WL 4817053 (Tex. App.—San Antonio Nov. 24, 2010, pet. denied) (mem. op.) (emphasis added) (noting that rule 15.003(b)–(c) permits a party to file an interlocutory appeal regarding venue in a multi plaintiff suit). 7 actions caused or contributed to the multi-vehicle accident. See id. § 15.002(a)(2).
Flores alleged that Williams resided in Jefferson County, Texas, at the time of the
accident.
Flores alleged that Bisor and Williams failed to: keep a proper lookout
maintained by a person of ordinary prudence; maintain speed and be attentive;
maintain control and a clear distance; and timely apply their brakes to avoid a
collision. In response to Flores’s claims, UPS and Bisor filed a Motion to Transfer
Venue and Original Answer Subject to Their Motion to Transfer Venue. In its
Motion to Transfer Venue, UPS and Bisor argued that mandatory venue rules did
not apply, and that the general venue provisions controlled and that venue in
Jefferson County was based on a fraudulent pleading, because “Williams safely
came to a stop prior to the accident[,] . . . [a]t no point did Defendant Williams act
negligently in any fashion[.]”
In July of 2018, Williams filed an Original Answer to Flores’s petition and
Cross-Action against UPS and Bisor, alleging that venue “is likewise proper in
[Jefferson County] pursuant to Tex. Civ. Prac. & Rem. Code § 15.001 et seq. and
related venue provisions.” Williams stated that venue is proper because “Cross-
Plaintiff/Defendant is a resident citizen of Jefferson County[.]” The same month, the
Norrises filed Intervenor Plaintiffs’ Original Petition alleging that venue is “proper
8 in [Jefferson County] pursuant to Tex. Civ. Prac. & Rem. Code § 15.001 et seq. and
related venue provisions.”
In January 2019, Williams and the Norrises filed Intervenor Plaintiffs’ and
Cross-Plaintiff/Defendant’s Joint Motion for Partial Summary Judgment, requesting
that the trial court grant a partial summary judgment finding
the negligence of defendant-driver, BYRON K. BISOR, proximately caused this crash, (2) BISOR was, at the time of the crash, in the course and scope of his employment of defendant-UNITED PARCEL SERVICE, INC., and (3) no negligence on the part of any other person or entity caused or contributed to this crash.
In March 2019, the trial court granted the motion for partial summary judgment,
ruling that
the Motion for Partial Summary Judgment is GRANTED that (l) the negligence of defendant-driver, BYRON K. BISOR, proximately caused this crash, (2) BISOR was, at the time of the crash, in the course and scope of his employment of defendant-UNITED PARCEL SERVICE, INC., and (3) no negligence on the part of any other person or entity caused or contributed to this crash.
Williams and the Norrises proceeded to a bench trial on their claims against UPS
and Bisor, and the trial court awarded damages to both Williams and the Norrises
against UPS in its final judgment.
In a multi plaintiff lawsuit, if a plaintiff fails to independently establish proper
venue, that plaintiff’s part of the suit, including all of that plaintiff’s claims and
causes of action, must be transferred to a county of proper venue or dismissed. Id. §
15.003(a). The plaintiff can avoid transfer or dismissal by demonstrating that: 9 (1) joinder of that plaintiff or intervention in the suit by that plaintiff is proper under the Texas Rules of Civil Procedure;
(2) maintaining venue as to that plaintiff in the county of suit does not unfairly prejudice another party to the suit;
(3) there is an essential need to have that plaintiff’s claim tried in the county in which the suit is pending; and
(4) the county in which the suit is pending is a fair and convenient venue for that plaintiff and all persons against whom the suit is brought.
Id. The appellate court must “determine whether the trial court’s order is proper
based on an independent determination from the record and not under either an abuse
of discretion or substantial evidence standard[.]” Id. § 15.003(c)(1).
Our analysis of the venue questions encompasses a unique standard of review.
The Amarillo Court of Appeals, discussed the “unusual standard” of review in this
context, as follows:
The appropriate standard of review for a venue determination is that set out in section 15.064(b), which provides, “[i]n determining whether venue was or was not proper, the appellate court shall consider the entire record, including the trial on the merits.” Thus, under this somewhat unusual standard, evidence adduced at the trial on the merits can show that the prima facie proof supporting venue was misleading or simply wrong.
Huerta v. Caddell, 07-99-0197-CV, 2000 WL 245503, at *3 (Tex. App.—Amarillo
Mar. 3, 2000, pet. denied) (quoting Ruiz, 868 S.W.2d at 757).
Section 15.064(b) permits appellate courts to examine the record for evidence
of a valid claim. Should the court of appeals determine there was no evidence of a
10 valid venue claim, or no evidence of a valid claim against the venue defendant, the
court must reverse the judgment on the ground that venue was improper. In Pines of
Westbury, Ltd. v. Paul Michael Constr., Inc., for example, the trial court denied a
motion to transfer venue, but later granted a motion for summary judgment in favor
of the venue defendant. 993 S.W.2d 291, 293 (Tex. App.—Eastland 1999, pet.
denied). Considering the “entire record, including the summary judgment” for the
resident defendant, the court in Pines of Westbury concluded that because the
plaintiff failed to produce legally sufficient evidence of a valid cause of action
against the venue defendant, venue was improper, and the judgment against the
remaining defendants had to be reversed. See id. at 294. Likewise, in ACF Indus.,
Inc. v. Carter, the trial court denied a motion to transfer venue but later granted a
motion for directed verdict as to the venue defendant. 903 S.W.2d 423, 424 (Tex.
App.—Texarkana 1995, writ dism’d by agr.). Thereafter, a judgment was rendered
by the trial court against the remaining defendants. On appeal, the Texarkana Court
of Appeals reversed the judgment and concluded that because there was legally
insufficient evidence of a remaining valid claim against the venue defendant, the
judgment had to be reversed on the ground of improper venue. See id.
At trial, Flores offered no evidence to establish venue in Jefferson County.
The only factual allegation that contained a basis for venue in Jefferson County was
Flores’s allegation that Williams resided in Jefferson County at the time of the
11 accident. Williams and the Norrises both alleged the same venue evidence as Flores.
Later, the trial court granted Williams’s and the Norrises’ partial motion for
summary judgment finding the accident was solely attributable to Bisor’s
negligence, while in the course and scope of his employment with UPS. The partial
summary judgment removed any negligence claims of Flores against Williams in
the accident. Because the Norrises’ and Williams’s pleadings relied on venue
allegations that Flores made against Williams, when the trial court granted partial
summary judgment finding that Bisor and UPS were solely at fault for the accident,
the plaintiffs could no longer rely upon the allegations against Williams as a venue
defendant. Upon granting the partial summary judgment which concluded Bisor’s
negligence was the sole cause of the accident, it “destroy[ed] the prima facie proof
on which the trial court relied” to deny the motion to transfer venue. Ruiz, 868
S.W.2d at 757. Neither Williams nor the Norrises alleged or argued any of the
necessary statutory factors to establish their right to remain in the Jefferson County
litigation, in the event that they could not independently establish proper venue. See
Tex. Civ. Prac. & Rem. Code Ann. § 15.003(a). We find no probative evidence in
the record, including the trial on the merits, of any act of negligence on the part of
Williams that caused or contributed to the accident nor is there evidence
demonstrating that venue of Williams’s claims or the Norrises claim against UPS
and Bisor was proper in Jefferson County. Ruiz, 868 S.W.2d at 758. Williams and
12 the Norrises failed to produce probative evidence to satisfy their burden under
sections 15.002 and 15.003. See Tex. Civ. Prac. & Rem. Code Ann. §§ 15.002,
15.003; Ruiz, 868 S.W.2d at 757–58.
While the trial court may have concluded that there was an allegation by
Flores against Williams that demonstrated venue may be proper in Jefferson County
at the time of the venue hearing, the evidence in the record along with later rulings
by the trial court made after the initial venue hearing, destroyed the prima facie basis
for the trial court’s denial of the motion to transfer venue. We conclude that there is
no probative evidence in the entire record, including trial on the merits, that would
establish venue was proper in Jefferson County where the judgment was rendered,
and the case must be reversed and remanded to the trial court. See Ruiz, 868 S.W.2d
at 757–58 (“[A]n appellate court is obliged to conduct an independent review of the
entire record to determine whether venue was proper in the ultimate county of suit.”);
Bleeker v. Villarreal, 941 S.W.2d 163, 167 (Tex. App.—Corpus Christi 1996, writ
dism’d by agr.) (“[T]his unusual standard of review can result in an appellate court
reversing a trial court’s judgment based on a venue ruling that was correctly decided
at the venue hearing.”). UPS and Bisor submitted competent prima facie evidence
that, at the time of the accident, Bisor was a resident of Harris County, Texas.
Accordingly, the trial court must transfer the case to Harris County, Texas, as Bisor’s
county of residence when the cause of action accrued. See Tex. Civ. Prac. & Rem.
13 Code Ann. §§ 15.002(a)(3) (“[I]n the county of defendant’s residence at the time the
cause of action accrued if defendant is a natural person”); 15.064(b) (“On appeal
from the trial on the merits, if venue was improper it shall in no event be harmless
error and shall be reversible error.”); see also Ruiz, 868 S.W.2d at 757 (“in reviewing
the trial court’s decision, an appellate court must reverse (there cannot be harmless
error) if other evidence in the record, even evidence adduced after venue was
determined, destroys the prima facie proof on which the trial court relied.”).
Waiver
Appellees contend that Appellants waived any complaint regarding improper
venue as they never sought or secured a venue ruling from the trial court as to the
specific claims that Williams and the Norrises made against UPS. Appellees argue
that Appellants should have pursued another motion to transfer venue after the initial
hearing and denial of their motion to transfer venue and by failing to do so, they
waived their objections to venue. We disagree.
The Texas Supreme Court rejected a similar argument on mandamus review
in In re Team Rocket, L.P., 256 S.W.3d 257, 259–60 (Tex. 2008). There, the Court
examined whether “a plaintiff who was denied his initial venue of choice can nonsuit
his case in the transferee county and refile in a third county.” Id. at 258. The supreme
court concluded that once a ruling is made on venue, that decision cannot be artfully
set aside by a plaintiff who chooses to nonsuit and refile the claim. See id. at 260.
14 The rule provides for one venue determination to be made in a proceeding and Texas
Rule of Civil Procedure 87 specifically prohibits changes in venue after the initial
venue ruling. Id. Notably, Rule 87(5) also states that “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.” See also In re Hardwick, 426 S.W.3d 151,
157 (Tex. App.—Houston [1st Dist.] no pet.) (citations omitted) (“Thus, unless one
of the exceptions in Rule 87(5) applies, only one venue determination may be made
in a proceeding and changes in venue after the initial venue ruling are prohibited. If
the trial court initially denies a motion to transfer venue, a subsequent motion to
transfer venue resulting in a different venue determination violates Rule 87(5), and
the second determination is void.”).
As we have previously noted, although section 15.003 allows for interlocutory
appeal in multi plaintiff cases, an interlocutory appeal is not mandatory. See Tex.
Civ. Prac. & Rem. Code Ann. § 15.003. While the appellees rely heavily upon UPS
Ground Freight, Inc. v. Trotter, 606 S.W.3d 781 (Tex. App.—Tyler 2020, pet.
denied), we find that Trotter does not support their waiver argument. While Trotter
acknowledged that interlocutory appeals may be permitted under section 15.003 in
multi-plaintiff lawsuits as an exception to rule 87(6), Trotter did not determine that
a party in a multi-plaintiff lawsuit waived their right to challenge venue by not
utilizing section 15.003 to challenge venue as to other plaintiffs. See Trotter, 606
15 S.W.3d at 785-86; see also Tex. Civ. Prac. & Rem. Code Ann. § 15.003; Tex. R.
Civ. P. 87(5). Additionally, Trotter dealt with an interlocutory appeal whereas the
case before us is an appeal following a trial on the merits.
Conclusion
Accordingly, we reverse the trial court’s judgment with respect to the
Norrises’ and Williams’s claims against UPS and Bisor, and we remand the case to
the trial court with instructions to transfer the claims to Harris County in accordance
with this opinion for a new trial. Due to our resolution, we need not address UPS’s
other issues. See Tex. R. App. P. 47.1
REVERSED AND REMANDED.
________________________________ CHARLES KREGER Justice
Submitted on June 17, 2021 Opinion Delivered September 30, 2021
Before Golemon, C.J., Kreger and Johnson, JJ.