dissenting.
I respectfully dissent to the court’s disposition of ultimate and controlling evidentiary issues while simultaneously upholding the venue challenge and remanding the case to the proper county for trial.
We are concerned with venue questions. The plaintiff, Sylvia Castaneda, filed a products liability suit against General Motors Corporation (GM) and a negligence action against Joe Taylor Stone, the driver of the car involved in an intersection collision with her car. The jury found GM 75 percent negligent and Stone 25 percent negligent and awarded substantial damages to the plaintiff. The trial court entered judgment for the plaintiff according to the jury verdict.
The Accident
On the evening of February 7, 1992, in Corpus Christi, the plaintiff borrowed a 1984 Buick Skylark to drive her brother on an errand. Approaching the busy intersection of McArdle Road and Staples, the plaintiff drove north on Staples. Her expert indicated she was driving over the 35-mile speed limit while her brother said she was not speeding. Stone, driving south on Staples, entered the intersection on a green light and began a left turn onto McArdle. The plaintiff also had a green light and, proceeding north, entered the intersection. Stone’s Toyota pickup truck struck the Buick and rode up over it, compressing the driver’s side. The truck then rotated and its right front tire or tires lifted off the ground. The right front tire left tire marks across both doors of the Buick on the driver’s side.
The experts at trial recognized this as a major accident of high severity. The unconscious plaintiff was pinned between the steering wheel, the dash, and the seat. Her brother tried to open her door but failed. The impact had shoved the driver’s door past the post between the front and rear doors. The “jaws of life” were used to extricate the plaintiff, who was pinned under the dash. She suffered severe head and body injuries.
Plaintiff sued GM, claiming that GM negligently designed the defective door latch on the Buick and that the defect caused the door to open upon impact, allowing the A pillar, the metal shaft between the windshield and the door, to move inward. She alleged that a different door latch design would have kept the door closed and she would not have struck the car’s A pillar. The plaintiff claimed that the design defect caused and greatly enhanced her severe injuries.
GM and Stone bring several points of error. GM contends that venue was improper in Duval County and the court should have transferred venue to Nueces County. GM further argues there was legal and factual insufficiency of the evidence of a door latch defect; conclusive proof of plaintiffs comparative fault; and factual insufficiency of the evidence to support the jury’s award of ten million dollars damages.
*784Stone contends that the trial court erred in denying his motion to transfer venue from Duval County to Nueces County. He also argues the evidence is insufficient to support the jury’s award of past and future damages, and the finding of zero comparative responsibility to plaintiff is contrary to the overwhelming weight of the evidence.
The plaintiff alleges in a cross-point that the prejudgment damages were wrongly calculated.
VENUE
Plaintiff filed suit in Duval County, relying solely on the presence of Freer Motor Company, a General Motors dealership. No relationship was shown to exist between Freer Motor Company and the Corpus Christi Buiek Skylark involved in the accident. The defendants timely moved to transfer venue to Nueces County. Specifically, plaintiff alleged that Freer Motor Company was the agency or representative of GM, citing section 15.037 of the Texas Civil Practice and Remedies Code.1 Section 15.037, in effect at the time of the present suit2, provided in pertinent part:
Foreign corporations ... not incorporated by the laws of this state, and doing business in this state, may be sued in any county in which all or a part of the cause of action accrued, or in any county in which the company may have an agency or representative, or in the county in which the principal office of the company may be situated, or, if the defendant corporation has no agent or representative in this state, then in the county in which the plaintiffs or either of them reside.
In Wilson v. Texas Parks and Wildlife Dept., 886 S.W.2d 259 (Tex.1994), it was stated that if a plaintiffs 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. Id. at 260. If a defendant objects to the plaintiffs venue choice and properly challenges that choice through a motion to transfer venue, the question.of proper venue is raised. Id. The burden is on the plaintiff to prove that venue is maintainable in the county of suit. But if the plaintiff fails to meet this burden, the trial court must transfer the lawsuit to another designated county of proper venue. Id. Section 15.063 of the Civil Practice and Remedies Code specifies that when a proper motion to transfer has been filed, the court shall transfer an action to another county of proper venue if the county in which the action is pending is not a proper county. If the plaintiff files suit in a county where venue does not lie, the plaintiff waives the right to choose and the defendant may have the suit transferred to a proper venue. Id.; Tieuel v. Southern Pac. Transportation Co., 654 S.W.2d 771, 775 (Tex.App.—Houston [14th Dist.] 1983, no writ).
The only question in this case is whether venue was proper in Duval County where this suit was brought and, if not, whether plaintiffs venue choice was properly challenged.
Standard of Review
Section 15.064 provides, in part:
(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. In determining whether venue was or was not proper, the appellate court shall consider the entire record, including the trial on the merits.
The Supreme Court in Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex.1993), emphasized that the appellate court must conduct an independent review of the entire record to determine whether venue was proper in the ultimate county of suit. If there is probative evidence to support the trial court’s determination, the reviewing court will defer to that decision and uphold it. If, however, there is no such evidence, the judgment will be reversed and the case remanded to the trial court with instructions to transfer the case to the county to which transfer was sought. Id.
*785In this case the trial court did not state its reason for denial of the motions to transfer. At the venue hearing, the plaintiff maintained that both defendants had waived their venue motions. We do not know whether the denial was based on waiver or the presence of the dealership in Duval County. Thus, our review of the record necessitates first addressing the question of waiver by GM and Stone of their motions to transfer venue to Nueces County.
The plaintiff argues that waiver occurred when the defendants failed to request a timely hearing on the motions to transfer and that the defendants faked to make certain motions to the court subject to their motions to transfer venue. Further, plaintiff submits that the defendants waived their venue motions since the motions were not determined by the court until 20 months after her petition was filed and just before a trial setting.
The record discloses that GM moved to transfer venue on March 23, 1993, within three weeks after it received service, and this was set for hearing on June 2, 1993. GM’s motion was reset for hearing on May 25, 1994, on February 8, 1995, and last on April 13, 1995, when it was heard. Trial on the merits began in April 1996. The record reflects that the three trial attorneys had scheduling conflicts and that plaintiff agreed to some of the resettings. GM continually kept its motion to transfer venue on the docket, setting and resetting it until all attorneys could appear in court for the motion hearing. GM’s answer and motions, including continuance, stated that they were made subject to the venue motion.
Plaintiff contends that the parties invoked the court’s power over the case several times — referring to discovery motions and a continuance request. However, neither discovery nor seeking protection from discovery, as GM did in this case, waives a transfer motion. TEX. R. CIV. P. 88. See Petromark Minerals, Inc. v. Buttes Resources Co., 633 S.W.2d 657, 659 (Tex.App.—Houston [14th Dist.] 1982, dism. w.o.j.) (taking of depositions does not constitute a waiver, nor does making or answering requests for admissions, nor seeking protection from discovery, nor moving to quash certain requests for admission). Because the trial court must be able to preserve and protect the rights of the parties in regard to discovery permitted pri- or to the venue hearing without the privilege being waived, the court may make incidental orders in connection therewith. Id.; see TEX. R. CIV. P. 88. Therefore, the discovery matters initiated or answered by GM did not create waiver of the venue motion.
The venue motion to transfer may be waived when, prior to the venue hearing, the defendant takes some action inconsistent with its position on the venue issue. See Petromark Minerals, 633 S.W.2d at 659. The record fails to disclose that GM waived the transfer motion and hearing by its request for a continuance. Plaintiff agreed to the continuance which removed the case from the June 13, 1994 trial docket. GM requested another hearing date for the venue motion at that time. The record indicates that plaintiff knew the action did not waive the venue hearing. Further, this action was not inconsistent with GM’s position on the venue issue. There was no waiver.
Defendant Stone timely filed his motion to transfer venue to Nueces County in May 1993. His amended answer was made subject to the motion to transfer in January 1995. The plaintiff filed her response to the two defendants’ motions, recognizing that the motions were currently set for hearing on February 7, 1995. Each defendant’s motion was set and reset for the same hearing dates.
In her response, plaintiff averred two grounds for venue to be retained in Duval County: 1) a GM car dealership in Duval County would be an “agency” for venue purposes under Ruiz or a “representative” under General Motors v. Ramsey, 633 S.W.2d 646 (Tex.App.—Waco 1982, writ dism’d); and 2) Stone waived his right to a venue transfer because he filed a motion for continuance in May 1994 without making it subject to the motion to transfer venue. (Plaintiff did not allege in her response that GM waived its motion to transfer venue.)
Plaintiff maintains that Stone waived his timely venue objections by asking the court for the continuance which plaintiff did not oppose. The record reflects that filing the *786continuance motion was not inconsistent with his position regarding the venue objection but was necessary to allow a hearing before trial on the venue motion. Although there might be some evidence of waiver when a defendant moves for continuance, the continued venue objection by Stone, both before and after that, indicates his actions were not inconsistent with his position on the venue issue. And any discovery requests by Stone are not cause for waiver. Tex.R. Crv. P. 88; Petromark Minerals, 633 S.W.2d at 659. Stone did not waive his motion to transfer venue.
“Agency” or “Representative”
It must be determined whether venue was improper in Duval County because GM had no “agency or representative” there. As in Ruiz, the only basis on which plaintiff asserts that venue was proper in Duval County is section 15.037 of the Texas Practices and Remedies Code. The Ruiz court construed the statute to refer to a situation in which the business of the defendant is, in a more or less regular and permanent form, actually conducted in the county of suit, or one in which a party possessing broad powers from the defendant resides in the county, the one instance being that of “agency” and the other of “representative.” Id. at 759. Thus, venue against a corporation may be predicated upon the presence in a county of either an agency, a more or less regular and permanent business operation, or a representative with broad powers to act for the corporation. The test is whether the agency or representative has broad discretionary power to act for the corporation. Id.
In this case the evidence is undisputed that GM had no principal business operation in Duval County; it had no office there. It is undisputed that the Freer Motor Company had no power or discretion to bind GM contractually. The mere designation of a dealership is not the designation of an agent of GM. See General Motors Corp. v. Brady, 477 S.W.2d 385, 390 (Tex.Civ.App.—Tyler 1972, no writ). It was not shown that Freer Motor Company had authority to act for GM. The fact that a dealer may issue a warranty to the buyer does not establish that the dealer had authority to act for the manufacturer. See Ford Motor Co. v. Miles, 967 S.W.2d 377, 382 (Tex.1998) (disapproving cases holding or implying that an automobile dealership is the agent or representative of the manufacturer if the dealership performs warranty or recall work).
Plaintiffs venue proof was limited to the fact the Freer Motor Company performed the final inspections for defects of GM vehicles it sold before their delivery to the buyer. But the predelivery inspection would only be a manual or mechanical execution which would not confer agency authority. This activity did not invest the dealer with broad discretion to act for GM. See General Motors Corp. v. Ewing, 300 S.W.2d 714, 718 (Tex.Civ.App.—Waco 1957, no writ). Plaintiffs reliance on General Motors Corp. v. Ramsey (ear dealer’s predelivery inspection of cars created an agency or representative) is misplaced since the holding was explicitly disapproved in Miles.
Ruiz’s plain interpretation of the venue laws leads to only one conclusion: predeliv-ery inspection of cars for defects fails to confer broad power and discretion to act for the GM Corporation. There was no evidence that the GM Corporation conducted business on a regular and permanent basis in Duval County, and no employee of the dealership possessed broad power and discretion to act for GM. See Atchison, Topeka, & Santa Fe Ry. Co. v. Sanchez, 890 S.W.2d 793, 795 (Tex.App.—Eastland 1994, op’n on remand). The evidence in Sanchez showed that Santa Fe did regular business in the county and had employees performing some limited duties there. However, it was determined that no employee possessed the required broad power and discretion to act for Santa Fe. Thus, the court held that Santa Fe had no agency or representative in the county. Venue in that county was found to be improper, and the case was ordered transferred. Id. at 795-96. See Nabors Loffland Drilling Co. v. Martinez, 894 S.W.2d 70, 73 (Tex.App.—San Antonio 1995, writ denied).
According to the edicts of Ruiz and Wilson, as well as Sanchez and Nabors, plaintiff failed to sustain her burden to show that Duval County was the proper county of ven*787ue. The defendants properly challenged venue in Duval County, and it was shown that Nueces County is the proper county of venue.
Because the venue ruling controls the disposition of this case, the majority opinion errs in deciding points of error on the sufficiency of the evidence. It is true that in some venue cases on appeal, the courts have addressed questions of limitations, consumer status, and incorrect jury instructions to guide the trial court and jury when the case is retried, but when venue must be transferred, as in the present case, it is improper to address on appeal questions which dispose of evidentiary issues.
Because the majority opinion orders the venue transfer and remands for a new trial, it improperly determined the evidentiary issues of legal and factual sufficiency of the evidence. The court’s decision regarding venue is dispositive of the judgment to be entered in this case.
Therefore, I respectfully dissent to that portion of the majority opinion that disposes of the evidentiary issues. Accordingly, I would hold only that venue is proper in Nueces County and that the case be remanded to the trial court in Duval County with instructions to transfer the entire cause to Nueces County for a new trial.
. Unless otherwise indicated, all references are to the venue statutes. Tex. Civ. Prac. & Rem.Code Ann. (Vernon 1986).
. The Legislature repealed section 15.037, Act of May 5, 1995, 74th Leg., R.S., ch. 138, § 10, 1995 Tex. Gen. Laws 978, 981. See now, Tex. Civ. Prac. & Rem.Code § 15.002 (Vernon Supp.1998).