Basic Energy Services GP, LLC and Basic Energy Services, L.P. v. Nelda Gomez, Duly Appointed Legal Guardian of the Estate of Kayla Deanne Lazo (Minor)

OPINION
No. 04-10-00128-CV

BASIC ENERGY SERVICES GP, LLC and Basic Energy Services, L.P.,
Appellants

v.

Nelda GOMEZ, Duly Appointed Legal Guardian of the Estate of Kayla Deanne Lazo (Minor),
Amador Lazo, and Brittany Lazo,
Appellees

From the 229th Judicial District Court, Duval County, Texas
Trial Court No. DC-09-74
Honorable Alex William Gabert, Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Marialyn Barnard, Justice

Delivered and Filed: July 14, 2010

APPEAL ABATED

This is an interlocutory appeal from a trial court’s order denying appellants’, Basic

Energy Services GP, LLC and Basic Energy Services, L.P.’s (“Basic Energy”), motion to

transfer venue. Appellees, Nelda Gomez, Duly Appointed Legal Guardian of the Estate of Kayla

Deanne Lazo, Amador Lazo, and Brittany Lazo (“Gomez and the Lazos”), contend this appeal
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should be dismissed for lack of jurisdiction. We abate this cause and order the trial to enter a

revised order specifying the basis for its ruling.

PROCEDURAL AND FACTUAL HISTORY

Kayla DeAnne Lazo was seriously injured after an Xbox game system caught fire.

Kayla’s medical expenses were paid by an insurance program provided by Kayla’s father’s

employer, Basic Energy. On behalf of Kayla, Gomez and the Lazos brought suit against

GameStop Corporation, the retailer who sold the game, and Microsoft Corporation, the

manufacturer of the game. The lawsuit was brought in Duval County, Texas on the basis that

“all or part of the facts giving rise to this cause accrued, in whole or in part, in Duval County.”

A settlement was reached with GameStop Corporation, and the remainder of the suit was

removed to the United States District Court for the Southern District of Texas, Corpus Christi

Division. A settlement was ultimately reached with Microsoft Corporation. Proceeds from the

first settlement were paid to reimburse the insurance program, but a balance remained.

After the second settlement, Gomez filed a declaratory judgment action in Duval County

against the Lazos, Basic Energy, and The Phia Group, LLC, which is a third party administrator

of the insurance program. In that suit, Gomez alleged Kayla’s father, Amador Lazo, was

responsible for repayment of the unreimbursed balance. Thereafter, the Lazos filed a third-party

petition against The Phia Group, LLC, Basic Energy, and Michael Sweeny, an agent of The Phia

Group, LLC. The Lazos complained The Phia Group, Basic Energy, and Sweeny had agreed to

limit the insurance program’s recovery to the amount actually received by the Lazos from the

Microsoft settlement proceeds and breached that agreement.

Basic Energy filed a motion to transfer venue, alleging venue was improper in Duval

County and the suit should be transferred to Midland County, Texas. After receiving Gomez and

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the Lazos’ response and Basic Energy’s reply, the trial court conducted a hearing and ultimately

denied the motion without specifying the grounds for its decision.

DISCUSSION

On appeal, Basic Energy asserts the trial court erred in denying its motion to transfer

venue from Duval County to Midland County.

Jurisdiction

Before we address the substantive issues in this case, we must first determine whether

this court’s appellate jurisdiction is properly invoked. Gomez and the Lazos argue this appeal

must be dismissed for lack of jurisdiction in accordance with section 15.064 of the Texas Civil

Practice and Remedies Code (“the Code”). See TEX. CIV. PRAC. & REM. CODE ANN. § 15.064

(Vernon 2002). In response, Basic Energy argues this court has interlocutory jurisdiction

pursuant to section 15.003(c) of the Code. See id. § 15.003(c) (Vernon Supp. 2009).

Section 15.064 provides that no interlocutory appeal is available from a trial court’s

determination of a venue question. Id. § 15.064(a) (“The court shall determine venue questions

from the pleadings and affidavits. No interlocutory appeal shall lie from the determination.”) In

general, a party must wait until a final judgment occurs in order to appeal an erroneous ruling

regarding venue. Id. § 15.064(b); Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601

(Tex. 1999); Elec. Data Sys. Corp. v. Pioneer Elecs. (USA) Inc., 68 S.W.3d 254, 257 (Tex.

App.—Fort Worth 2002, no pet.).

However, when a case involves multiple plaintiffs, wherein plaintiffs are included by

joinder or intervention, section 15.003 establishes a limited right of interlocutory appeal to

contest a trial court’s venue determination. TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(b)-(c);

Surgitek, Bristol-Myers Corp., 997 S.W.2d at 601; Elec. Data Sys. Corp., 68 S.W.3d at 257.

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This limited right of interlocutory appeal extends only to plaintiffs who are unable to

independently establish proper venue apart from the joinder factors set out in section 15.003(a).

TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(b)-(c); Elec. Data Sys. Corp., 68 S.W.3d at 258.

Section 15.003(a) provides:

In a suit where more than one plaintiff is joined each plaintiff must,
independently of any other plaintiff, establish proper venue. Any person who is
unable to establish proper venue may not join or maintain venue for a suit as a
plaintiff unless the person, independently of any other plaintiff, establishes that:

(1) joinder or intervention in the suit is proper under the Texas Rules of Civil
Procedure;

(2) maintaining venue in the county of suit does not unfairly prejudice another
party to the suit

(3) there is an essential need to have the person’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 the
person seeking to join in or maintain venue for the suit and the persons against
whom the suit is brought.

TEX. CIV. PRAC. & REM. CODE ANN § 15.003(a). Sections 15.003(b)-(c) permit a party

challenging the joinder of a plaintiff who cannot independently establish proper venue to take an

interlocutory appeal. Id. § 15.064(b)-(c).

Here, Gomez and the Lazos filed suit against Basic Energy, asserting venue was proper in

Duval County under section 15.002(a) of the Code on the basis that “all or part of the facts

giving rise to this cause accrued, in whole or in part, in Duval County.” See id. § 15.002 (a).

Basic Energy filed a motion to transfer venue under section 15.003, asserting each plaintiff must

“independently of every other plaintiff establish proper venue.” See id. § 15.003(a). Thereafter,

Gomez and the Lazos filed their response, arguing venue was proper in Duval County pursuant

to section 15.002. See id. § 15.002. Although Basic Energy filed its motion to transfer venue

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under section 15.003, in its reply, Basic Energy alleged venue was improper in Duval County

pursuant to sections 15.002 and 15.003. Moreover, at the trial court’s hearing on Basic Energy’s

motion to transfer venue, counsel for Basic Energy began his argument with the proposition that

venue was improper in Duval County pursuant to section 15.002 because the act or omissions, if

any, occurred in Boston rather than Duval County. In response, counsel for Gomez and the

Lazos emphasized the injury occurred in Duval County, and therefore, venue was appropriate in

Duval County pursuant to 15.002. Only at the conclusion of his argument did counsel for Basic

Energy ask the court to direct its attention to section 15.003, arguing Gomez failed to present

venue facts to establish proper venue. He also reiterated that pursuant to section 15.002, his

client specifically denied the Lazos’ allegation that all or substantially all of the acts occurred in

Duval County.

After reviewing the record, we conclude that section 15.002 and 15.003 arguments were

presented to the trial court as grounds for the motion to transfer venue. However, the trial

court’s order does not specify why it denied the motion to transfer venue. It is unclear whether

the trial court denied the motion because Gomez and the Lazos independently established proper

venue pursuant to section 15.002 or because they met the joinder requirements pursuant to

section 15.003. If section 15.002 is the basis for the trial court’s ruling denying the motion to

transfer venue, then we do not have jurisdiction over this appeal. Compare § 15.003(c)

(permitting interlocutory appeal wherein plaintiff who was included by joinder or intervention

cannot independently establish proper venue) with § 15.064 (preventing interlocutory appeal

from trial court’s venue determination); see also Am. Home Prods. Corp. v. Clark, 3 S.W.3d 57,

58 (Tex. App.—Waco 1999, no pet.) (outlining when appeals court has and does not have

jurisdiction with regard to a trial court’s venue determination). On the contrary, if section 15.003

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is the basis for the trial court’s ruling denying the motion to transfer venue, then we have

jurisdiction to hear the interlocutory appeal. See id.

Because the trial court’s order does not specify the basis for its ruling and because our

jurisdiction depends on the basis for that ruling, we must abate this cause and order the trial court

to prepare a revised order specifying the basis for its ruling. See Elec. Data Sys. Corp., 68

S.W.3d at 257 (explaining court had to abate appeal and order trial court to prepare revised order

before it addressed appellant’s venue complaint); Am. Home Prods. Corp., 3 S.W.3d at 58

(abating appeal and ordering trial court to prepare revised order when original order failed to

specify section 15.002 or 15.003 as basis for ruling). Should the revised order state 15.002 is the

basis for denying Basic Energy’s motion to transfer venue, we will dismiss the pending

interlocutory appeal for lack of jurisdiction. The court’s revised order shall be filed with this

Court in a supplemental clerk’s record within thirty (30) days of the date of this Order.

CONCLUSION

We abate this cause and order the trial court to prepare a revised order specifying the

basis for its ruling so we may determine whether we have jurisdiction over this appeal.

PER CURIAM

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