Petition for Writ of Mandamus Conditionally Granted and Majority and Concurring Opinions filed February 3, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-08-00912-CV
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IN RE FORT BEND COUNTY, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
C O N C U R R I N G O P I N I O N
Although I agree with the majority=s conclusion that a mandatory venue provision requires the plaintiffs= claims against relator to be litigated in Fort Bend County, I reach that conclusion for different reasons. I therefore respectfully concur in the judgment.
In their original petition, the plaintiffs allege in pertinent part as follows:
Mr. Ladson entered the Westpark Tollway at the easternmost entranceCnear Gaston Road, which is located in Fort Bend County. . . . All of the defendants had actual knowledge that dangerous conditions existed on the Westpark Tollway lanes, entrances, and exits that allowed for wrong-way vehicles to enter the tollway and subsequently cause serious injury to other tollway users. . . . The operation of a tollway without proper entrances, exits, warning lights, signs, and barricades is an inherently dangerous practice and created an unreasonable risk of harm to the plaintiffs . . . Upon information and belief, the defendants formulated a policy to monitor the tollway entrances and exits to prevent wrong-way traffic . . . In the early morning hours of January 1, 2007, the premise defects were the signs, signals and warning devices of the Gaston Road area of the tollway and the Westpark Tollway itself. The defective items were confusing and misleading about the proper direction of travel to get on the tollway and the identity of the entrances to get on the tollway. The tollway as it existed on January 1, 2007 constituted a condition that endangered the public and should have been corrected by the defendants. As such, the tollway constituted a Adangerous condition,@ that is a condition that created an unreasonable risk of harm to the user of the roadway. The defendants are jointly and severally liable for the maintenance and operation of premises defects on or at the said entrances of the tollway and are also jointly liable for the violation of the duty they owed the plaintiffs, which violations are a proximate cause of the plaintiffs= damages.
The plaintiffs assert in their original petition that venue is Aproper in Harris County because at least one of the defendants is located in Harris County, Texas and substantial parts of the incidents complained of in this lawsuit occurred in Harris County, Texas.@ It is undisputed that the accident in which Pedro Olivares Jr. was killed occurred in Harris County; thus, the plaintiffs contend that venue in Harris County is proper pursuant to Texas Civil Practice and Remedies Code section 101.102(a), which provides that A[a] suit under this chapter shall be brought in state court in the county in which the cause of action or a part of the cause of action arises.@ Tex. Civ. Prac. & Rem. Code Ann. ' 101.102(a) (Vernon 2005).
A. Fort Bend County Meets Burden to Demonstrate Mandatory Venue in Fort Bend County
Fort Bend County moved to transfer venue, citing section 15.015 of the Texas Civil Practice and Remedies Code, under which A[a]n action against a county shall be brought in that county.@ Tex. Civ. Prac. & Rem. Code Ann. ' 15.015 (Vernon 2002). The burden of proof governing the motion to transfer venue is set forth in Texas Rule of Civil Procedure 87(2)(a):
A party who seeks to transfer venue of the action to another specified county under Sections 15.011B15.017, Civil Practice and Remedies Code on the basis that a mandatory venue provision is applicable and controlling has the burden to make proof, as provided in paragraph 3 of this rule, that venue is maintainable in the county to which transfer is sought by virtue of one or more mandatory venue exceptions.
Tex. R. Civ. P. 87(2)(a). Because Fort Bend=s motion to transfer venue is based on section 15.015 of the Civil Practice and Remedies Code, Fort Bend bore the burden to prove that venue is maintainable there pursuant to a mandatory venue exception. Such proof was supplied by the plaintiffs= own pleadings, which identify Fort Bend as a county in which part of the accident occurred. Thus, Fort Bend has sustained its burden.
B. Plaintiffs= Response
In response to Fort Bend=s motion to transfer venue, the plaintiffs assert that Awhen there are two counties of mandatory venue, as in this case, the plaintiffs= choice between the two is controlling.@ They further argue that plaintiffs are given the first choice in deciding the venue in which to litigate their claims and that a lawsuit pleaded and established as having been filed in a county of proper venue may not be transferred. In support of this argument, plaintiffs rely on Texas Rule of Civil Procedure 87(3)(c). Pursuant to this Rule,
If a claimant has adequately pleaded and made prima facie proof that venue is proper in the county of suit . . . , then the cause shall not be transferred but shall be retained in the county of suit, unless the motion to transfer is based . . . on an established ground of mandatory venue. A ground of mandatory venue is established when the party relying upon a mandatory exception to the general rule makes prima facie proof as provided in subdivision (a) of paragraph 3 of this rule.
Tex. R. Civ. P. 87(3)(c). Under the cited provision, A[p]rima 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)(a). As noted, however, the plaintiffs properly pleaded that Fort Bend is a county, and this venue fact has not been challenged. See id. (AAll venue facts, when properly pleaded, shall be taken as true unless specifically denied by the adverse party.@). Thus, Fort Bend has established that a mandatory venue provision requires the claims against it to be prosecuted in Fort Bend County.
The plaintiffs further rely on Marshall v. Mahaffey. 974 S.W.2d 942, 947 (Tex. App.CBeaumont 1998, pet. denied). In Marshall, the Ninth Court of Appeals relied on a case that had been reversed as support for its conclusion that Awhere there is a conflict between two mandatory venue provisions, >[t]he general scheme of the venue statute is that plaintiffs may choose between two proper venues.=@ Id. (quoting Wichita County, Tex. v. Hart, 892 S.W.2d 912, 920 (Tex. App.CAustin 1994) (AHart I@), rev=d, 917 S.W.2d 779 (Tex. 1996) (AHart II@)). Although the Marshall court stated that Hart I was reversed on other grounds, this characterization is not appropriate in the context of this case. Hart I was reversed precisely because it failed to give effect to the requirement of section 15.015 of the Texas Civil Practice and Remedies Code that claims against a county be litigated in that county. See Hart II, 917 S.W.2d at 781. In Hart I, the intermediate court discussed section 15.015 of the Texas Civil Practice and Remedies Code and specifically acknowledged that the county venue provision Ahas long been a part of the law of our state and has long been regarded as a mandatory venue provision.@ Hart I, 892 S.W.2d at 917. However, the Third Court of Appeals concluded that the venue provision of the Whistleblower Act was similarly mandatory. Id. at 920. The court therefore characterized the venue dispute as Aa conflict between two mandatory venue provisions@ and relied on Wilson v. Texas Parks and Wildlife Department in concluding that A[t]he general scheme of the venue statute is that plaintiffs may choose between two proper venues.@ Id. (citing Wilson v. Tex. Parks & Wildlife Dep=t, 886 S.W.2d 259, 259B61 (Tex. 1994)). Wilson, however, concerned competing venues, both of which were permissible under section 101.102 of the Civil Practice and Remedies Code, and neither of which was otherwise mandatory.[1]
In sum, Marshall, Hart I, Hart II, and Wilson offer little assistance in determining the proper procedure to follow in a case such as this, in which two different statutes allegedly mandate venue in different counties. In their response to the motion to transfer venue, plaintiffs framed the issue as follows:
This suit is brought pursuant to the Texas Tort Claims Act (TTCA). Venue under the TTCA is mandated by ' 10[2].101(a) of the Texas Civil Practice and Remedies Code, which states: AA suit under this chapter shall be brought in the [sic] state court in the county in which the cause of action or a part of the cause of action arises. (emphasis added.)[.][[2]]
Significantly, however, section 10.102(a) contains both mandatory and permissive aspects. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.102(a). Although suit must be prosecuted in one of the counties in which a part of the cause of action arose, different parts of a cause of action may arise in different counties, and if so, the plaintiff may choose from among those possibilities. Stated differently, the statute is mandatory in that it defines the set of possible venues, but it is permissive in that it does not differentiate among the members of that set, but leaves that selection to the plaintiff. Here, for example, parts of the plaintiffs= cause of action arose in Harris County and parts arose in Fort Bend County. The mandatory aspect of section 101.102(a) is satisfied if the suit is prosecuted in Harris or Fort Bend County, but as between these alternatives, venue is permissive under 101.102(a) because neither alternative is mandated by the statute. In contrast, there is no permissive aspect to section 15.015, or stated differently, the set of possible venues that would fulfill the requirements of section 15.015 consists of a single member: venue of a plaintiff=s claims against a county is mandatory in that county. Id. ' 15.015. Thus, in identifying the proper venue in which plaintiffs may bring the claims at issue, section 101.102(a) effectively eliminates all counties other than Harris and Fort Bend, and section 15.015 then eliminates all counties other than Fort Bend. The remaining countyCFort Bend CountyCis therefore the county of mandatory venue, and hence, the only county of Aproper venue.@ See id. 15.001(b) (defining Aproper venue@). I therefore would conclude that this case presents no conflict between sections 15.015 and 101.102(a), because transferring venue to Fort Bend County fulfills the mandatory requirements of both statutes.[3]
C. Claim Severance
I also note that this case does not present the question of whether claims against multiple counties must be severed and venue transferred if the claims are interwoven. Here, Fort Bend=s motion to transfer venue addressed only Aclaims made or causes of action brought in this civil action as against Fort Bend County, Texas@ and the claims against Fort Bend County are severable from the remainder of the action. See Tex. R. Civ. P. 89.[4] The Texas Supreme Court has set forth the requirements for severability as follows:
A claim is properly severable if (1) the controversy involves more than one cause of action, (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues.
F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 693 (Tex. 2007) (quoting Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990) (on mot. for reh=g)). Here, the severability of the claims against Fort Bend County are demonstrated by the Agreement for the Joint Construction, Maintenance and Operation of the Fort Bend Westpark Extension Toll Road, offered into evidence by the plaintiffs in their response to Fort Bend County=s motion to transfer venue. Under the terms of the contract, Fort Bend County assumed responsibility to:
$ design and construct the portion of the tollway Afrom State Highway 99 to Station 987+14 of the Westpark Tollway Extension, located approximately 2830 feet east of F.M. 1464@;
$ design and implement a toll collection system;
$ procure and install all toll plazas, toll collection equipment, and ramps;
$ contract for mowing and landscape maintenance; sign and stripe maintenance; and routine repairs; and
$ establish rules and regulations relating to the use of the Westpark Extension.
Harris County assumed responsibility to:
$ design and construct the tollway from 2830 feet east of F.M. 1464 to U.S. 59 South;
$ align and commission the VES system at each toll location;
$ operate the toll collection system equipment and software;
$ operate and maintain Fort Bend County=s section of the Westpark Tollway to State Highway 99;
$ provide incident management services, excluding law enforcement activities;
$ provide onsite maintenance services for the preventative maintenance, emergency response and repair of toll collection equipment;
$ make all emergency repairs when it deems necessary to protect the health, safety, and welfare of the public; and
$ enforce the rules and regulations relating to the use of the Westpark Extension.
Because the duties assumed by the defendants are distinct from one another, the acts constituting a breach also differ. Hence, the claims against the various defendants do not involve the same facts and issues and therefore may be properly severed.
/s/ Eva M. Guzman
Justice
Panel consists of Chief Justice Hedges and Justices Guzman and Brown. (Brown, J., Majority.)
[1] See Wilson, 886 S.W.2d at 259B62. Thus, when the Wilson court used the phrase Aproper venue,@ it was not referring to venue that is Aproper@ as now defined by 15.001(b)(1) of the Civil Practice and Remedies Code. Compare Tex. Civ. Prac. & Rem. Code Ann. ' 15.001(b)(1) (defining Aproper venue@ as Athe venue required by the mandatory provisions of Subchapter B [i.e., id. '' 15.011B.020.] or another statute prescribing mandatory venue@) with id. ' 15.001(b)(2) (A>Proper venue= means: . . . If Subdivision (1) does not apply, the venue provided by this subchapter or Subchapter C [i.e., id. ' 15.031 et seq.].@).
[2] Although the plaintiffs cited section 101.101(a) which governs notice requirements, we presume the plaintiffs intended to refer to section 101.102(a), which contains the language on which they rely.
[3] My reasoning differs from that of the majority in at least two additional respects. First, I believe the majority=s summary of the legislative history of section 15.015=s predecessor as set forth in Montague County v. Meadows, ante at 4B5, is both unnecessary and unhelpful because the Montague court was explaining that the general venue rule was not intended to apply to suits against counties. 31 S.W. 694, 695 (Tex. Civ. App.CFort Worth 1895, writ ref=d). Here, none of the parties relied on the general venue rule in the trial court. Thus, the majority=s conclusion in dicta that Asection 15.016 is not an exception to section 15.015,@ ante at 5, seems to me unnecessary to resolve any issue properly before this court inasmuch as the plaintiffs, the relator, and the trial court have not asserted that section 15.016 is an exception to section 15.015. Second, I disagree with the majority=s reasoning in concluding that Abecause Fort Bend is entitled to a transfer under the mandatory venue provision, it was not necessary for Fort Bend to challenge the venue facts pleaded by the Olivareses.@ Although I agree that Fort Bend was not required to challenge the venue facts pleaded by the plaintiffs, the reason for this is simply that such a challenge would be self-defeating. By failing to challenge the pleaded venue facts, those factual allegations were taken as true, and the venue facts pleaded by the plaintiffs demonstrate that venue of their claims against Fort Bend is mandatory in Fort Bend County. See Tex. R. Civ. P. 87(3)(a).
[4] If a motion to transfer venue is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the proper court; . . . [p]rovided, however, if the cause be severable as to parties defendant and shall be ordered transferred as to one or more defendants but not as to all, the clerk, instead of sending the original papers, shall make certified copies of such filed papers as directed by the court and forward the same to the clerk of the court to which the venue has been changed. . . .