NUMBER 13-15-00357-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
YADIRA ADAME, Appellant,
v.
STATE FARM LLOYDS, Appellee.
On appeal from the 343rd District Court
of Live Oak County, Texas.
OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Opinion by Justice Benavides
In this venue dispute, appellant Yadira Adame1 asks us to decide whether the
1 Victor Adame was Yadira Adame’s co-plaintiff in the proceedings below. However, Victor died
during the pendency of this lawsuit and was removed as plaintiff below. Accordingly, Yadira Adame is the
only appellant in this case and will be identified as “Adame.”
original trial court erred by granting appellee State Farm Lloyds’ (“State Farm”)2 motion
to transfer venue to Live Oak County. We affirm.
I. BACKGROUND
On November 8, 2013, Adame sued State Farm in Jim Wells County for breach of
contract, violations of the Texas Insurance Code, the Texas Deceptive Trade Practices
Act, and other common law causes of action related to a homeowner’s insurance policy
issued by State Farm to Adame for a property located in Sandia, Texas. In her petition,
Adame asserted that venue was proper in Jim Wells County because “all or a substantial
part of the events giving rise to the lawsuit occurred in this county, and the insured
property that is the basis of this lawsuit is located in Jim Wells County . . . .”
On January 14, 2014, State Farm answered and filed a general denial. It also
filed a plea in abatement, alleging that Adame failed to give State Farm the requisite
statutory notice required under the Texas Insurance Code. Seven days later, Adame
amended her petition to correctly identify the defendant as “State Farm Lloyds” rather
than “State Farm Lloyds Inc.” The remainder of the petition is in all respects identical to
her original petition.
On March 24, 2014, State Farm filed a motion to transfer venue to Live Oak County
on the grounds that it had “learned that the property [at issue] is actually situated at 165
Boat Ramp Rd. [sic] Sandia, Texas 78383-4000, which is located in Live Oak County not
Jim Wells County.” State Farm further alleged in its motion that under the general rule
2 Adame amended her petition to change the defendant’s name from “State Farm Lloyds, Inc.” to
“State Farm Lloyds.” To avoid confusion, we will refer to State Farm Lloyds, Inc. and State Farm Lloyds
interchangeably as “State Farm,” unless otherwise noted.
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of venue, Live Oak was the appropriate venue for this lawsuit. Adame opposed the
motion to transfer arguing that State Farm waived its right to file its motion to transfer
venue under the due order of pleading rule. See TEX. R. CIV. P. 86(1) (“An objection to
improper venue is waived if not made by written motion filed prior to or concurrently with
any other plea, pleading, or motion except a special appearance motion . . . .”). After
holding a hearing on State Farm’s motion to transfer venue, the trial court granted State
Farm’s motion, and the entire proceeding was transferred to Live Oak County.
After the transfer, Adame filed her second amended petition, listed her residence
as “Sandia, Live Oak County, Texas,” and stated that venue was proper in Live Oak
“because all of or a substantial part of the events giving rise to the lawsuit occurred in
[Live Oak County], and the insured property that is the basis of this lawsuit is located in
Live Oak County, Texas.” On June 16, 2015, the case was tried before a jury, and the
jury rendered a take-nothing verdict for Adame’s causes of action. The trial court
rendered a final judgment reflecting the jury’s verdict, and this appeal followed.
II. VENUE
By one issue, Adame contends that the Jim Wells County trial court erred in
granting State Farm’s motion to transfer venue and entering an order transferring the
proceedings to Live Oak County.
A. Applicable Law
Generally, all lawsuits shall be brought in (1) 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
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 state, if the defendant
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is not a natural person; or (4) if none of the preceding three rules apply, in the county in
which the plaintiff resided at the time of the accrual of the cause of action. See TEX. CIV.
PRAC. & REM. CODE ANN. § 15.002(a) (West, Westlaw through 2015 R.S.).
However, there are some exceptions to this general rule. For example, a trial
court may transfer an action from a county of proper venue to any other county of proper
venue on motion of a defendant filed and served concurrently with or before the filing of
the answer, where the trial court finds: (1) maintenance of the action in the county of suit
would work an injustice to the movant considering the movant’s economic and personal
hardship; (2) the balance of interests of all the parties predominates in favor of the action
being brought in the other county; and (3) the transfer of the action would not work an
injustice to any other party. See id. § 15.002(b). Additionally, the civil practice and
remedies code provides for a number of actions to be brought in mandatory venues, see
generally id. § 15.011–.020 (West, Westlaw through 2015 R.S.) (Mandatory Venue
Statutes), as well as various permissive venues. See generally id. §§ 15.011–.020
(West, Westlaw through 2015 R.S.) (Mandatory Venue Provisions); §§ 15.031–.040
(West, Westlaw through 2015 R.S.) (Permissive Venue Provisions). “Proper venue”
means: (1) the venue required by the mandatory venue statutes of another statute
prescribing mandatory venue; or (2) if mandatory venue does not apply, then the general
venue rules provided for under section 15.002(a), or the venue allowed under the
permissive venue statutes. Id. § 15.001(b).
Because venue may be proper in a variety of counties under the venue rules, a
plaintiff is given the first choice of venue in the filing of a lawsuit. See Wilson v. Tex.
Parks & Wildlife Dep’t, 886 S.W.2d 259, 260 (Tex. 1994). However, if a plaintiff files suit
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in an improper county, he waives his first choice of venue and the defendant may have
the suit transferred to another county, as long as venue is proper in that county. WTFO,
Inc. v. Braithwaite, 899 S.W.2d 709, 716 (Tex. App.—Dallas 1995, no writ); Maranatha
Temple, Inc. v. Enterprise Prods. Co., 833 S.W.2d 736, 741 (Tex. App.—Houston [1st
Dist.] 1992, writ denied). On the other hand, if a defendant objects to the plaintiff’s venue
choice and properly challenges that choice through a motion to transfer venue, the
question of proper venue is raised. Wilson, 886 S.W.2d at 260 (citing TEX. R. CIV. P.
86). If the plaintiff's venue choice is not properly challenged through a motion to transfer
venue, the propriety of venue is fixed in the county chosen by the plaintiff. Wilson (citing
TEX. CIV. PRAC. & REM. CODE ANN. § 15.063 (West, Westlaw through 2015 R.S.); TEX. R.
CIV. P. 86(1)). Thus, while venue may be improper, the defendant can submit to the
location by failing to raise the matter with the trial court. Jackson v. Biotectronics, Inc.,
937 S.W.2d 38, 43 (Tex. App.—Houston [14th Dist.] 1996, no writ). With this framework
in mind, we now turn to the facts of this case.
B. Discussion
1. Waiver of Venue Objection
Adame argues that the trial court erred by considering and granting State Farm’s
motion to transfer venue despite State Farm’s waiver of its right to object pursuant to
Texas Rule of Civil Procedure 86. We agree.
When a trial court determines whether an objection to venue was waived, we
review for an abuse of discretion. Gen. Motors Corp. v. Castaneda, 980 S.W.2d 777,
787 (Tex. App.—San Antonio 1998, pet. denied) (op. on reh’g). Waiver is defined as “an
intentional relinquishment of a known right or intentional conduct inconsistent with
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claiming that right.” Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003). Waiver is
largely a matter of intent, and for implied waiver to be found through a party's actions,
intent must be clearly demonstrated by the surrounding facts and circumstances. Id.
Waiver is ordinarily a question of fact, but when the surrounding facts and circumstances
are undisputed, as in this case, the question becomes one of law. Id. at 156–57.
Rule 86 states the following in relevant part:
An objection to improper venue is waived if not made by written motion filed
prior to or concurrently with any other plea, pleading or motion except a
special appearance motion . . . .
TEX. R. CIV. P. 86(1); see also TEX. CIV. PRAC. & REM. CODE ANN. § 15.063 (“The court, on
motion filed and served concurrently with or before the filing of the answer, shall transfer
an action to another county of proper venue . . . .” (emphasis added)).
The record shows that Adame filed her petition on November 8, 2013 in Jim Wells
County, State Farm answered and filed a plea in abatement on January 14, 2014, and
State Farm filed its motion to transfer venue on March 24, 2014. Therefore, State Farm’s
March 24, 2014 motion to transfer venue was untimely under Rule 86 and leads to only
one logical conclusion: any objection from State Farm regarding the propriety of venue
was undisputedly waived.3 See TEX. R. CIV. P. 86(1). Accordingly, we conclude that
3 We note that in its briefing, State Farm defends its untimely motion to transfer venue by arguing
that Adame “gamed the venue system by misrepresenting her own county of residence and then blamed
State Farm for not catching her false pleading.” The record, however, shows that State Farm did not make
such strong allegations below, and the record does support such allegations on appeal. All indications in
the record—from State Farm’s pleadings, to the representations by Adame’s counsel at the motion to
transfer hearing, and comments made by the Jim Wells trial court that it believed that the town of Sandia
was an “unincorporated . . . long-term community in the upper northeast part of Jim Wells County,” suggest
that the insured property in this case is located in an undefined portion of land near the Jim Wells/Live Oak
county line. The record also shows that Adame and State Farm engaged in pre-suit negotiations prior to
the filing of this lawsuit, and Adame also referenced the specific homeowner’s policy number at issue in its
original petition, which gave State Farm a reasonable opportunity to exercise its own diligence in
investigating and ascertaining the exact location of the property at issue prior to filing its answer.
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the Jim Wells trial court abused its discretion by implicitly finding that State Farm did not
waive its right to challenge venue under Rule 86(1) and erroneously considered State
Farm’s motion to transfer. See id.; see also Jernigan, 111 S.W.3d at 156.
2. Harm Analysis
Having found error, we now determine our next appropriate standard of review.
First, the civil practice and remedies code states that when a venue determination is
appealed from a trial on the merits as in this case, if the transferring venue was improper,
it shall in no event be harmless error and shall be reversible error. See TEX. CIV. PRAC.
& REM. CODE ANN. § 15.064(b) (West, Westlaw through 2015 R.S.). In determining
whether venue was or was not proper under this standard, the appellate court shall
consider the entire record, including the trial on the merits. Id. Moreover, other courts
have held that when a plaintiff files suit in a permissible county, and the trial court wrongly
transfers venue to another county, even a permissible one, the plaintiff has lost his right
to choose where to bring his suit, and the harmless error rule does not apply because the
plaintiff lost the right to bring suit in the permissible county of his choice. See Maranatha
Temple, Inc., 833 S.W.2d at 741.
The posture of this case, however, does not fit into either of these standards of
review. The instant case presents a scenario in which: (1) the plaintiff filed suit in an
improper county (Jim Wells); and (2) the original trial court abused its discretion by
considering a waived motion to transfer venue, yet still transferred the case to a county
Therefore, while we understand that fraud can be a legitimate concern with regard to venue
allegations, the record in this case does not support State Farm’s position that Adame “gamed the venue
system” or intentionally misrepresented facts. We caution State Farm against making such serious and
unsubstantiated claims in the future.
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of proper venue (Live Oak).4 In effect, we have two separate and distinct venue-related
waivers. Adame waived her right to first choose venue by choosing an improper one,
see Braithwaite, 899 S.W.2d at 710, and State Farm waived its right to object by failing
to timely file its motion to transfer. See Biotectronics, Inc., 937 S.W.2d at 43. We find
no cases that control the present scenario on appeal, and we find no authority or policy
justifications that persuade us to adopt either the section 15.064(b) or the Maranatha
standards. Instead, we will utilize the standard harmless error analysis as articulated by
Texas Rule of Appellate Procedure 44.1. See TEX. R. APP. P. 44.1(a). Under this
standard, we will not reverse the trial court’s error unless: (1) probably caused the
rendition of an improper judgment; or (2) probably prevented the appellant from properly
presenting the case to the court of appeals. Id.
We conclude that the Jim Wells trial court’s abuse of discretion amounted to
harmless error. As stated in note four of this opinion, a review of the entire record shows
that Live Oak was a county of proper venue in this case because the property at issue is
located in Live Oak County and not Jim Wells County. See TEX. CIV. PRAC. & REM. CODE
ANN. §§ 15.001(b); 15.002(a). Furthermore, by her own live pleading at trial (Plaintiff’s
Third Amended Petition), Adame asserted that she “is a resident of Sandia, Live Oak
County, Texas” and that venue was proper in Live Oak because “the insured property
that is the basis of this lawsuit is located in Live Oak County, Texas.” Therefore, because
the origination of the venue dispute arose from the ultimate location of Adame’s insured
4 Based on the record and briefing, neither party disputes that the insured property at issue in this
case is located in Live Oak County, and we agree. Therefore, we conclude that Live Oak is a county of
“proper venue” and Jim Wells is a county of improper venue. See TEX. CIV. PRAC. & REM. CODE ANN. §§
15.001(b); 15.002(a)
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property, and because Adame later admitted by her own pleading that the property at
issue was located in Live Oak County, we conclude that the transfer of venue to Live Oak
County and subsequent trial on the merits probably did not cause the rendition of an
improper judgment in this case. See TEX. R. APP. P. 44.1(a). We overrule Adame’s sole
issue on appeal.
III. CONCLUSION
We affirm the judgment of the trial court.
GINA M. BENAVIDES,
Justice
Delivered and filed the
1st day of September, 2016.
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