Bleeker v. Villarreal

OPINION ON MOTION FOR REHEARING

We overrule Bleeker’s motion for rehearing and for rehearing en bane, but we will briefly address Bleeker’s venue arguments to clarify our decision.

Bleeker contends that our opinion improperly encumbered him with the burden of proof on the venue issue. Before the trial court, the burden of proof is placed on “the party pleading the venue fact” to “make pri-ma facie proof of that venue fact” when it has been specifically denied. Tex.R.Civ.P. 87.3(a). On appeal, however, we search “the entire record, including the trial on the merits.” Tex.Civ.Prac. & Rem.Code Ann. § 15.064(b) (Vernon 1986). If we find “any probative evidence ... that venue was proper, we must uphold the trial court’s determination on the matter of venue.” Bonham State Bank v. Beadle, 907 S.W.2d 465, 471 (Tex.1995). Under this standard of review, we uphold the trial court’s venue determination if it is supported by any evidence; it does not matter who introduced that evidence.

When this suit was commenced, the venue laws provided as follows:

Foreign corporations, private or public, joint-stock companies or associations, not incorporated by the laws of this state, and doing business in this state, may be sued in any county in which all or part of the cause of action accrued, or in any county in which the company may have an agency or representative, or in any county in which the principal office of the company may be situated, or, if the defendant has no agent or representative in this state, then in the *175county in which the plaintiffs or either of them reside.

Act of June 3, 1987, 70th Leg., 1st C.S., ch. 4, § 1, 1987 Tex.Gen.Laws 52, 58, repealed by Act of May 8, 1995, 74th Leg., R.S., ch. 138, § 10, 1995 Tex.Gen.Laws 978, 981. In this case, State Farm Fire and Casualty filed admissions (1) that it was “incorporated under the laws of the State of Illinois,” (2) that it was “doing business in the State of Texas,” and (3) that it had local recording agents “located in McAllen, Hidalgo County, Texas.” As a matter of law, local recording agents represent the insurance company and have authority to bind the insurance company. Tex.Ins.Code Ann. art. 21.14 § 2(a)(1) (Vernon Supp.1996). Agents with discretion to bind their company qualify as an “agency or representative” for the purposes of venue in suits against foreign corporations. See Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex.1994); Reliance Ins. Co. v. Falknor, 492 S.W.2d 721, 722-23 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref'd n.r.e.). Thus, State Farm Fire and Casualty’s admissions are some probative evidence that Hidalgo County was a proper venue for claims against State Farm Fire and Casualty.

The venue rules further provided:

When two or more parties are joined as defendants in the same action or two or more claims or causes of action are properly joined in one action and the court has venue of an action or claim against any one defendant, the court also has venue of all claims or actions against all defendants unless one or more of the claims or causes of action is governed by one of the [mandatory venue provisions] requiring transfer of the claim or cause of action, on proper objection, to the mandatory county.

Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex.Gen.Laws 3242, 3249, repealed by Act of May 8, 1995, 74th Leg., R.S., ch. 138, § 10, 1995 Tex.Gen.Laws 978, 981. Under this provision, venue may be challenged on grounds that the defendants or claims are improperly joined, the court does not have venue over any defendant, or a mandatory provision requires transfer. Id. No mandatory provision governs this case.

Regarding the requirement that multiple defendants or claims must be “properly joined,” the plaintiffs had no burden to offer prima facie proof that joinder was proper because Bleeker never specifically denied any venue fact relevant to the issue of join-der. See Gonzalez v. Nielson, 770 S.W.2d 99, 102 (Tex.App.—Corpus Christi 1989, writ denied) (all allegations are accepted as true except particular facts specifically denied in motion to transfer). In his motion to transfer, Bleeker asserted that the plaintiffs’ cause of action “against State Farm Fire and Casualty does not exist,” but this argument does not raise any duty to offer prima facie proof. Tex.R.CivP. 87.3(a) (“no party shall ever be required for venue purposes to support by prima facie proof the existence of a cause of action”). Similarly, the argument in Bleeker’s motion to transfer regarding the plaintiffs’ “bootstrapping” of claims against the various defendants is not a specific denial of any particular venue fact. See Maranatha Temple, Inc. v. Enterprise Prod. Co., 833 S.W.2d 736, 741 (Tex.App.—Houston [1st Dist.] 1992, writ denied) (“ ‘specific denial’ of a venue fact requires that the fact itself be denied”). Moreover, Bleeker neither objected to the joinder of State Farm Fire and Casualty nor requested a severance from the claims against that eodefendant. Having failed to obtain a ruling from the trial court on any allegation of misjoinder, Bleeker cannot pursue this argument on appeal. Tex. R.App.P. 52(a).

Regarding the issue of whether the trial court had “venue of an action or claim against any one defendant,” Bleeker argues that we impermissibly placed the burden of proof on him. This misconstrues our decision. We merely searched the entire record for any evidence that would support the trial court’s determination that Hidalgo County was a proper venue for the claims against State Farm Fire and Casualty. This proof was provided by State Farm Fire and Casualty’s admissions. In the absence of this evidence, we would have reversed the trial court’s judgment and remanded for a new trial. See WTFO, Inc. v. Braithwaite, 899 S.W.2d 709, 718 (Tex.App.—Dallas 1995, no writ). Similarly, we would have reversed the trial court’s judgment if Bleeker had intro-*176dueed contrary evidence that destroyed the probative value of the proof establishing Hi-dalgo County as a proper venue for claims against State Farm Fire and Casualty. See Ruiz, 868 S.W.2d at 757. We did not shift the burden of proof by merely acknowledging that Bleeker could have offered contrary evidence under Ruiz to avoid the effect of State Farm Fire and Casualty’s admissions. See id.

Moreover, Bleeker’s motion to transfer contained only one specific denial that might arguably raise the plaintiffs’ burden to offer prima facie proof:

RONNIE DALE BLEEKER specifically denies the fact ... that venue is proper in Hidalgo County, Texas, because Hidalgo County is the county in which [State Farm Fire and Casualty] does business and has agents handling this claim....

This denial does not rebut the specific fact necessary to establish venue against a foreign corporation. See Act of June 3, 1987, 70th Leg., 1st C.S., ch. 4, § 1, 1987 Tex.Gen. Laws 52, 53 (repealed 1995) (venue is proper in “any county in which the company may have an agency or representative” without regard to whether the agent is handling the claim at issue); cf. Maranatha Temple, 833 S.W.2d at 741 (discussing proper method of specifically denying facts necessary to venue in suit against foreign corporation). However, even if we consider Bleeker’s denial sufficiently specific to raise the plaintiffs’ duty to offer prima facie proof, the record contains all the evidence necessary to sustain the trial court’s venue decision. If no mandatory venue provision governs a suit joining multiple defendants, then evidence establishing venue for the “claim against any one defendant” will suffice as a response to another defendant’s motion to transfer. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex.Gen.Laws 3242, 3249 (repealed 1995); see also WTFO, 899 S.W.2d at 718 (plaintiff WFTO would have properly responded to defendant Braithwaite’s motion to transfer by offering prima facie proof that venue was proper for claims against codefendant Poort). Thus, venue for the claims against State Farm Fire and Casualty was established by its admissions and venue for the claims against Bleeker was established under the prevailing venue rules without the need of any additional proof. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex.Gen.Laws 3242, 3249 (repealed 1995).

Bleeker further argues that we improperly used admissions by State Farm Fire and Casualty to establish venue for claims against him. Again, Bleeker misconstrues our opinion. We looked to State Farm Fire and Casualty’s admissions as some evidence of the facts necessary to establish that venue was proper for the claims against State Farm Fire and Casualty. Bleeker cites several eases to support his argument that we improperly used a codefendant’s admissions to establish venue against him. E.g., Pearson v. Jones Co., Ltd., 898 S.W.2d 329, 331-32 (Tex.App.—Eastland 1994, no writ) (defendant’s waiver of right to challenge venue did not waive codefendant’s objections to venue); Morehouse v. Brink, 647 S.W.2d 712, 714-15 (Tex.App.—Corpus Christi 1982, no writ) (plaintiff failed to prove cause of action in response to plea of privilege); Stanford v. Dairy Queen Prods., 623 S.W.2d 797, 804 (Tex.App.—Austin 1981, writ ref'd n.r.e.) (defendant’s waiver of right to challenge venue did not waive codefendant’s plea of privilege); Rubenstein Foods, Inc. v. Winter Garden, Inc., 589 S.W.2d 511, 512-14 (Tex.Civ.App.—Corpus Christi 1979, no writ) (where defendant did not testify, defendant’s stipulation that venue was proper did not bind codefendant); Lasorsa v. Burr, 516 S.W.2d 265, 267-68 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ) (defendant’s stipulation that venue was proper did not bind codefendant, but defendant’s deposition testimony regarding facts underlying that stipulation established venue for claims against codefendant). Except for Pearson, these cases were all decided under former venue rules that allowed defendants a plea of privilege to be sued in their venue of residence and required plaintiffs to offer factually sufficient proof of their entire case in order to establish venue. Moreover, these cases are distinguishable because the eodefendants either waived their right to challenge venue or stipulated that venue was proper without offering evidence of facts underlying the stipulation. Waivers and stipulations might conclusively resolve *177the venue issue for a defendant, but neither a waiver nor a broad stipulation without some proof of the underlying facts is evidence. See WTFO, 899 S.W.2d at 718.

In the case under review, however, venue was not established by deemed admissions, waiver, or an unsupported stipulation that venue was proper. Instead, State Farm Fire and Casualty filed admissions conceding all the specific facts necessary to establish that the claims against it could be tried in Hidalgo County. These admissions were signed under penalty of sanctions for improper admissions. Tex.R.Civ.P. 215(4). The facts admitted were all within the knowledge of State Farm Fire and Casualty and were sufficient to resolve the issue of whether “the court has venue of an action or claim against” State Farm Fire and Casualty. Because the only venue facts even arguably denied were facts underlying the ruling that Hidalgo County was a proper venue for claims against State Farm Fire and Casualty, the record contains some evidence of every fact necessary to uphold the venue determination. The plaintiffs need not offer further proof that State Farm Fire and Casualty is a foreign corporation doing business in Texas with agents in Hidalgo County when State Farm deliberately removed each of these specific facts from controversy and the record contains no contrary evidence. See Red Top Taxi Co. v. Snow, 452 S.W.2d 772, 774 (Tex.Civ.App.—Corpus Christi 1970, no writ).

Finally, Bleeker contends we failed to consider his argument that the plaintiffs’ claim against State Farm Fire and Casualty was not a bona fide cause of action. We considered this argument, but the record did not substantiate Bleeker’s contention. To the contrary, the record showed that the claims against State Farm Fire and Casualty included a dispute as to whether the payment due under the underinsured motorists policy was $300,000 or $260,000. The record further demonstrated that this dispute was never resolved by the pretrial motions. In his reply brief before this court, Bleeker even conceded that this $40,000 dispute remained unresolved as the trial date approached. Moreover, Bleeker did not offer any briefing to address why this dispute was so groundless that it should not be considered a bona fide claim. We did not neglect to consider Bleeker’s argument that the plaintiffs failed to bring a bona fide claim against State Farm Fire and Casualty; we rejected that argument based on the record before us.

Having considered all the issues raised in his motion, we overrule Bleeker’s motion for rehearing and for rehearing en banc.