in Re Berry GP, Inc. D/B/A Bay, LTD., a Berry Company

In The

Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-16-00292-CV
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IN RE BERRY GP, INC. D/B/A BAY, LTD., A BERRY COMPANY

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Original Proceeding
60th District Court of Jefferson County, Texas
Trial Cause No. B-197,520
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OPINION

Berry GP, Inc. d/b/a Bay, Ltd., a Berry Company, challenges the trial court’s

denial of its motion to transfer a personal injury case filed by Douglas Gray and his

wife, Christa Gray, from Jefferson County, where the suit was filed, to Howard

County, the county where Douglas Gray was injured. After Berry GP filed its

petition, Alon USA, LP, Alon USA GP, LLC, Alon USA Holdings, LLC, Alon

USA Energy, Inc., Alon USA Partners, LP, and Alon USA (collectively referred to

in this opinion as “Alon”), adopted Berry GP’s petition, subject to its own motion

to transfer, and requested that we grant Berry GP’s petition for mandamus. In

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response to the petition, Douglas and Christa Gray, the real parties in interest,

suggest that mandamus relief is inappropriate because the trial court’s venue ruling

concerns a permissive venue statute. We conclude that the trial court abused its

discretion by failing to transfer the case to Howard County. We further conclude

that an appellate remedy is inadequate, and that exceptional circumstances exist to

justify issuing the writ.

The suit arises from an injury Douglas Gray suffered in 2014 while working

in Howard County at a facility owned or operated by Alon. 1 According to the

Grays’ petition, Douglas Gray was working on a flange suspended by a sling when

the sling broke and the flange fell on him, resulting in his injury. Subsequently, the

Grays sued ten defendants2 in Jefferson County, claiming that their negligence

caused the event that resulted in Douglas Gray’s injuries.

1
The Grays’ petition does not reference which specific entity owned or
operated the premises where Douglas Gray was injured, and instead, the Grays’
petition references Alon generically for a number of apparently related entities that
use “Alon” in their names.
2
The defendants the plaintiffs named in their First Amended Petition, which
is their live pleading for the purposes of the hearing the trial court conducted on
Berry GP’s motion, are (1) Alon USA, LP, (2) Alon USA GP, LLC, (3) Alon USA
Holdings, LLC, (4) Alon USA Energy, Inc., (5) Alon USA Partners, LP, (6) Alon
USA, (7) Berry Contracting, LP, (8) Berry Holdings, LP, (9) Berry GP, Inc., and
(10) Bay, Ltd.
2
 Under Texas law, on the filing of a suit, the plaintiff is allowed to sue the

defendant in any county that it chooses so long as the plaintiff, in its pleadings,

properly alleges facts showing the county where it sued is a county of permissive

venue. In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999) (orig. proceeding).

However, if the defendant challenges the plaintiff’s choice of venue by filing a

motion to transfer, and in its motion, the defendant denies the plaintiff’s venue

allegations and objects that venue is not proper in the county where the suit was

filed, the plaintiff is then required to make a prima facie showing that the suit was

filed in a county of proper venue. Id. If, at the venue hearing, the plaintiff fails to

establish that the county where the suit was filed is a county of permissive venue,

the trial court is required to transfer the suit to the county where the defendant

suggested the suit should have been filed, provided that county is a county of

proper venue. Tex. Civ. Prac. & Rem. Code Ann. § 15.063 (West 2002).

Under Rule 87 of the Texas Rules of Civil Procedure, a defendant is

required to “specifically deny” the plaintiff’s venue allegations to shift the burden

to the plaintiff to establish that venue is permissible in the county where the suit

was filed. Tex. R. Civ. P. 87(2)(b). In the trial court and in this proceeding, the

parties dispute whether Berry GP’s motion to transfer venue “specifically denied”

the Grays’ venue allegations. Additionally, although the Grays’ petition is silent

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about the county in which Douglas Gray’s injuries allegedly occurred, their

subsequent pleadings assert that Douglas Gray was injured in Howard County. In

this proceeding, the parties do not dispute that Douglas Gray’s injuries occurred in

Howard County.

With respect to the venue allegations in the Grays’ petition, the Grays

alleged that Alon contracted with Gulfspan Industrial to perform work at Alon’s

facility, that the Alon/Gulfspan Industrial contract covering the work Douglas Gray

was doing when he was injured was negotiated and executed in Jefferson County,

and that the contract documents created “all or part of the duties and obligations

owed by defendants to plaintiffs.” The Grays then alleged that “all or part of the

transactions or occurrences that make up plaintiffs’ cause of action occurred and

arose in Jefferson County, Texas.” Nonetheless, in their petition, the Grays failed

to allege any facts regarding the transactions or occurrences that allegedly occurred

in Jefferson County that caused Douglas Gray’s injuries.

In response to the Grays’ petition, Berry GP filed a timely motion to transfer

venue. In relevant part, Berry GP’s motion alleges: 3

Jefferson County is not a county of proper venue because (1) none of
the alleged events or omissions giving rise to the claim occurred in
3
To avoid confusion, we have removed footnotes and paragraph references
that Berry GP included in its motion, as those references are not pertinent to
understanding the opinion.
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Jefferson County; (2) no Defendant to this lawsuit has a principal
office in Jefferson County; and (3) no mandatory venue exception
authorizes the maintenance of this action in Jefferson County.

This lawsuit is a personal injury case stemming from an alleged
incident occurring at Defendant Alon’s facility in Howard County,
Texas. Specifically, Plaintiff alleges that a piece of equipment fell
onto him and caused him injuries at the Howard County facility.

Defendant Berry specifically denies the venue facts, if any, plead in
the Plaintiff’s First Amended Petition. More specifically, Defendant
specifically denies that all or a substantial part of the events or
omissions giving rise to this claim occurred in Jefferson County. . . .

. . . Plaintiff alleges that all or a substantial part of the events or
omissions giving rise to this claim occurred in Jefferson County, an
assertion based on the fact that the contract between Defendant Alon
and Plaintiff’s employer, Gulfspan, was allegedly entered into in
Jefferson County, an allegation Defendant denies. However even if
true, this case is a personal injury lawsuit, regarding an alleged injury
sustained in an incident at Defendant Alon’s Howard County, Texas
facility. This is not a breach of contract case and the referenced
contract is not at issue in this lawsuit. Further, Plaintiff’s employer,
Gulfspan, is not even a party to this lawsuit. Plaintiff is improperly
attempting to bootstrap his negligence claim onto a contract with
which he has no privity. . . .

In fact, in the unlikely event that the contract between [Gulfspan] and
Alon is relevant to the venue issue, the parties to the contract have
agreed that Howard County shall be venue for any disputes.
Therefore, based on the Contract that Plaintiff alleges controls, venue
is proper in Howard County.

Defendant Berry further specifically denies that venue would be
proper in Jefferson County, Texas under the mandatory provisions of
the Texas Civil Practice and Remedies Code.

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 Defendant Berry pleads that venue is proper in Howard County, Texas
because all or a substantial part of the events or omissions giving rise
to this lawsuit occurred in Howard County, Texas. Defendant requests
that this action be transferred to a district court in Howard County,
Texas where proper venue exists in this cause.

Although the Grays filed a response to the motion, the Grays failed to attach

any affidavits or evidence to their response. Instead, the Grays responded with an

argument, suggesting that venue in Jefferson County was proper because Alon and

Gulfspan Industrial had negotiated and executed the contract relevant to Douglas

Gray’s work in Jefferson County. However, the creation of duties and obligations

through a contract does not establish whether any duties under the contract were

breached in Jefferson County. And, the fact that a contract might have been formed

in one county does not, without more, establish how defendant’s action in the

county where the contract was formed caused an injury to occur in another county.

Therefore, the allegation that one of the defendants was a party to a contract

formed in Jefferson County, even if we were to assume that allegation to have been

uncontested when it was not, does not allege a fact establishing that proper venue

for the suit existed in Jefferson County.

Moreover, Berry GP specifically denied the allegation that the contract was

negotiated and executed in Jefferson County, denied that all or a substantial part of

the events or omissions giving rise to the claim occurred in Jefferson County, and

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denied that the Alon/Gulfspan Industrial contract was material to any issue in the

suit. Consequently, given the Grays’ argument that the location where the contract

was negotiated and executed is a relevant venue fact, Berry GP’s denial of that fact

required the Grays to present prima facie evidence to prove that the contract was

negotiated and executed in Jefferson County. See Tex. R. Civ. P. 87(2)(b). The

Grays produced no evidence to meet their burden of showing that Jefferson County

was a county of permissible venue under the facts that led to Douglas Gray’s

injury.

In our opinion, the Grays failed to plead venue facts showing that Jefferson

County was a county of permissive venue. Additionally, Berry GP’s motion to

transfer contains denials of the venue allegations in the Grays’ petition that comply

with the requirements of Rule 87(2)(b), notwithstanding the Grays’ arguments to

the contrary. Id. We conclude the trial court abused its discretion by finding venue

was proper in Jefferson County, given the lack of facts that were alleged in the

Grays’ petition. We further conclude the trial court abused its discretion by failing

to require the Grays to make a prima facie 4 case showing that at least one of the

4
“Prima 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).
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defendant’s acts or omissions resulting in Douglas Gray’s injuries occurred in

Jefferson County.

When a plaintiff fails to discharge its burden to properly plead venue facts or

to present prima facie proof by affidavit or other appropriate evidence that venue is

proper in the county where the suit was filed, the right to choose proper venue

passes to the defendant, who must then prove that venue is proper in the

defendant’s chosen county. See In re Missouri Pacific R. Co., 998 S.W.2d 212, 216

(Tex. 1999) (orig. proceeding); see also Tex. R. Civ. P. 87(2)(b), (3). Under Texas

law, venue of a suit is proper in the county where the accident occurred. See Tex.

Civ. Prac. & Rem. Code Ann. § 15.002(a)(1) (West 2002). In light of the Grays’

failure to properly plead venue, and their subsequent failure to present a prima

facie case that Douglas Gray’s injury was caused by an act or omission of at least

one of the defendants that occurred in Jefferson County, the trial court was left

with only one choice—to transfer the case to the county that Berry GP suggested

the case should have been filed, the county where Douglas Gray’s accident

occurred. We hold the trial court abused its discretion by denying Berry GP’s

motion.

To determine whether mandamus relief is warranted under the circumstances

of this case, we are also required to determine whether Berry GP has established

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that an appellate remedy would be inadequate. See Walker v. Packer, 827 S.W.2d

833, 840 (Tex. 1992). In evaluating the benefits and detriments of mandamus

relief, we consider whether extending relief by granting the writ will preserve

important substantive and procedural rights from impairment or loss. In re Team

Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). Under Texas

law, when faced with a motion to transfer that places the venue facts alleged by the

plaintiff in issue, a trial court must transfer a case to a county of proper venue

unless the plaintiff shows that venue is proper in the county the suit was filed. Id.

at 259; In re Masonite Corp., 997 S.W.2d at 197; see also Tex. Civ. Prac. & Rem.

Code Ann. § 15.063. While an appellate remedy is generally adequate to correct an

erroneous venue ruling, an appeal may become inadequate if the trial court

employs a blatantly improper venue procedure in deciding the venue motion. In re

Shell Oil Co., 128 S.W.3d 694, 696-97 (Tex. App.—Beaumont 2004, orig.

proceeding).

In this case, the trial court failed to properly apply the Rules of Civil

Procedure regarding properly pleaded venue facts, and it also failed to require the

plaintiff to make a prima facie showing that venue was proper even though the

defendant properly controverted the allegations on which the trial court relied to

find that Jefferson County was a county of proper venue. See id.; see also Tex. R.

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Civ. P. 87(2), (3). Moreover, in this Court, the Grays’ response to Berry G.P.’s

petition fails to explain how, in good faith, they will establish that all or a

substantial part of the acts and omissions of any of the defendants in Jefferson

County caused Douglas Gray’s injury. While the contract that the plaintiffs

referenced in their pleadings is in the record that is before us, none of the

provisions in the contract between Alon and Gulfspan Industrial reflects that any of

Alon’s acts or omissions occurred in Jefferson County. Additionally, even if

relevant to proving that Alon retained a right of control over Gulfspan Industrial’s

work, the contract’s terms are not prima facie evidence that Alon exercised its

control over the work that resulted in Douglas Gray’s injury in Jefferson County.

We further note that the Alon/Gulfspan Industrial contract contains a venue

provision, and it provides that venue for any contract disputes “shall be in Howard

County, Texas.” Thus, Douglas Gray’s employer did not anticipate litigating any

disputes with Alon that related to the duties arising under the contract in Jefferson

County. Finally, were the case to be tried in Jefferson County, and given the

number of parties the Grays sued, it appears likely that a large number of witnesses

would be needed for a trial conducted in a location more than 500 miles from the

county where Douglas Gray’s injuries occurred.

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 Given the number of parties and the abuse of the judicial system that will

occur if the case is allowed to remain in Jefferson County, we conclude that the

circumstances of this case are exceptional such that mandamus relief is warranted.

In re Team Rocket, 256 S.W.3d at 262 (finding extraordinary circumstances

existed where the “trial court improperly applied the venue statute and issued a

ruling that permits a plaintiff to abuse the legal system”); In re Masonite Corp.,

997 S.W.2d at 199 (concluding that exceptional circumstances existed where the

trial court failed to follow venue statute in a case involving multiple defendants).

Accordingly, we conditionally grant the writ, and direct the trial court to withdraw

its order denying Berry GP’s motion and grant its motion to transfer the case to

Howard County. The writ will not issue unless the trial court fails to act in

accordance with this opinion.

PETITION CONDITIONALLY GRANTED.

PER CURIAM

Submitted on September 16, 2016
Opinion Delivered November 3, 2016

Before McKeithen, C.J., Kreger and Horton, JJ.

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