IN THE
TENTH COURT OF APPEALS
No. 10-99-134-CV
AMERICAN HOME PRODUCTS CORPORATION AND
WYETH-AYERST LABORATORIES, ADIVISION OF
AMERICAN HOME PRODUCTS CORPORATION,
Appellants
v.
FAWN C. CLARK, SYLVIA JACOBSON, ANNA
KRAUS, SCHARLET LAWS, NANCY WEBSTER,
DONNA WELCH, DELIA ZEEH, CAROL BODILY,
MARY JO HALL AND SHONNA BUSH,
Appellees
From the 249th District Court
Johnson County, Texas
Trial Court # 249-213-98
DISSENTING OPINION
I was wrong when I joined the order to abate this appeal and asked for a more specific order from the trial court. It is not too late to correct my error. I would not dismiss this appeal.
We have the jurisdiction and the duty to review the trial court's determination of venue in this multi-plaintiff case. American Home is a party opposing the joinder of multiple individuals as plaintiffs. The trial court has issued an order allowing the joinder. The legislature has clearly given us jurisdiction to review that determination by interlocutory appeal.
THE DISAGREEMENT
The trial court was presented with two issues. In one issue American Home challenged venue under section 15.002 and by another issue challenged venue for the joinder of these plaintiffs and their claims under section 15.003. From the trial court's original order we were not able to determine the specific basis of the ruling which allowed the joinder of all these plaintiffs. I joined the other justices in asking for clarification of the trial court's order.
The trial court's revised order states that each plaintiff has established venue as to all defendants. The order holds: “Accordingly, it is ORDERED that the motion to transfer venue and/or motions objecting to venue/joinder filed by Defendants American Home Products,...are DENIED.” Joinder of all eleven plaintiffs in this one suit in Johnson County is thus allowed by the trial court. The majority holds that the court determined venue was proper under section 15.002 and because there is no interlocutory appeal of a section 15.002 venue determination, we have no jurisdiction. According to the majority that is the end of our inquiry. Because I believe section 15.003 gives us jurisdiction of this interlocutory appeal, and was specifically designed to cover this very situation, I would not dismiss the appeal. The trial court has denied American Homes the relief they sought pursuant to section 15.003. I would consider the merits of the appeal under the authority and guidelines of section 15.003.
PLAIN LANGUAGE OF SECTION 15.003
The plain language of section 15.003 gives the Court jurisdiction of this interlocutory appeal. Eleven plaintiffs have joined in one suit. American Home challenged that joinder in the trial court and lost. Within 20 days of the trial court's order American Home brought an appeal of that determination to this Court. Those are the elements necessary to establish our jurisdiction under section 15.003. The specific wording of the statute is as follows:
(c) Any person seeking intervention or joinder, who is unable to independently establish proper venue, or a party opposing intervention or joinder of such a person may contest the decision of the trial court allowing or denying intervention or joinder by taking an interlocutory appeal to the court of appeals district in which the trial court is located under the procedures established for interlocutory appeals. The appeal must be perfected not later than the 20th day after the date the trial court signs the order denying or allowing the intervention or joinder. The court of appeals shall:
(1) determine whether the joinder or intervention is proper based on an independent determination from the record and not under either an abuse of discretion or substantial evidence standard; and
(2) render its decision not later than the 120th day after the date the appeal is perfected by the complaining party.
The statute is very specific. Each element of the statute necessary to establish our jurisdiction is met. We have jurisdiction of this interlocutory appeal. American Home Products Corporation v. Bernal, No. 13-99-089-CV, 1999 WL 640034, note 1 (Tex. App.–Corpus Christi, August 19, 1999, n.p.h.).
An argument could be made that we only have jurisdiction if it is determined that the party seeking joinder is unable to independently establish proper venue. The question then becomes who makes that decision and whether we can review that decision and determine for ourselves whether we have jurisdiction. Obviously the trial court must initially make that decision. Once made, this Court has the jurisdiction to review that determination. It has been firmly established that we have the jurisdiction to determine whether we have jurisdiction. In this instance our review would include a determination of whether each plaintiff, independently of any other plaintiff, had established Johnson County as a proper venue.
OUR STANDARD OF REVIEW
The statute also specifies that our standard of review is an independent determination from the record. Tex. Civ. Prac. & Rem. Code Ann. § 15.003(c) (Vernon Supp. 1999). We are specifically prohibited from using an abuse of discretion or substantial evidence standard. Id. This strengthens the argument that we are to conduct our own independent review of each determination that the trial court has made in denying a challenge to venue under section 15.003.
The trial court's original order was all that was needed to give this Court jurisdiction. It is clear that American Home had challenged joinder of the eleven plaintiffs in this venue. The trial court's order denied American Home's motion challenging the joinder and allowed joinder of all eleven plaintiffs. We should have proceeded to our independent review of the joinder of these plaintiffs rather than abate the appeal for a more specific order. We should not again fail to follow our legislatively mandated duty by now dismissing this interlocutory appeal.
TOM GRAY
Justice
Dissenting opinion delivered and filed September 8, 1999
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