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A 6-2 decision by the Texas Supreme Court could make many venue orders immune from review by appellate courts. On May 14, the court held in Garza, et al. v. Garcia [ full text] that the 13 th Court of Appeals erred by considering and reversing 229 th District Judge Alex Gabert’s order that transferred from Starr County to Hidalgo County a personal-injury suit stemming from a 1997 traffic accident. “The court of appeals reversed, refusing to presume a venue order was granted on convenience grounds unless the order specifically said so,” Justice Scott Brister wrote for the Supreme Court majority. Chief Justice Rogelio Valdez, author of the 13 th Court’s opinion, wrote that Gabert’s order granting the motion to transfer venue did not specify whether it was a transfer under the general venue provision of Texas Civil Practice and Remedies Code �15.002(a) or a transfer for convenience under �15.002(b). Justices Federico Hinojosa and Nelda Rodriguez joined Valdez in the opinion. Brister noted in the Supreme Court opinion that J&R Oilfield Services Inc., employer of the pickup truck driver who allegedly caused the four-vehicle accident in which Ines Garcia was injured, argued in its transfer of venue motion that Starr County was not the proper venue. According to the brief filed on behalf of J&R and Ramiro Garza, the accident occurred in Hidalgo County, where the plaintiff lived and J&R maintained its principal place of business. The brief also contended that Garza lived in Hidalgo County at the time of the accident-a contention that Garcia disputed. Garza joined J&R in the transfer of venue motion, which added, as an alternative, that the venue should be moved to Hidalgo County “for the convenience of the parties,” according to the opinion. Gabert’s order that transferred the case did not state his reason for granting the motion, according to the opinion. The judge’s reason for granting the motion is important, says Charles W. “Rocky” Rhodes, who focuses on the state’s venue statute in classes he teaches at South Texas College of Law in Houston. Rhodes says Gabert’s order would be subject to review if he transferred the case under the general venue rule in TCPRC �15.002(a) because no defendant lives in Starr County, no defendant business has its principal Texas office there and a substantial part of the events giving rise to the claim did not occur there. The order isn’t subject to review, Rhodes says, if Gabert transferred venue under �15.002(b), which authorizes such moves for the convenience of the parties. The Supreme Court majority took the position that Gabert might have granted the venue motion for the sake of convenience. “As the Starr County judge certainly might have intended to grant it on convenience grounds, we cannot ignore the Legislature’s ban on reviewing such orders by adopting a new presumption so we can review them anyway,” Brister wrote. Rhodes says a similar situation arises in the federal court system when a trial judge remands a case to a state court. If the remand is based on the subject matter jurisdiction or procedural errors, the trial court’s decision can’t be reviewed, Rhodes says. To decide the trial court’s reason for remanding a case, a federal appellate court looks at the whole record, he says. According to the majority opinion, Garcia sued J&R in Starr County based on evidence that Garza lived there. The 13 th Court’s opinion noted that Garza owned a home in Rio Grande City, where his wife and children lived, and that he had given the Rio Grande City address to the officer investigating the accident. The defendants argued in their brief to the Supreme Court that Garza lived in a house owned by his employer in Hidalgo County at the time of the accident. After a 206 th District Court jury in Hidalgo County awarded Garcia $120,000 in damages for her injuries, she appealed, seeking automatic reversal and a new trial based on the venue transfer. Pandora’s Box Chief Justice Tom Phillips wrote in a dissenting opinion that the majority’s decision can be supported by a literal reading of �15.002(b). But Phillips wrote that he believes the ruling “exalts form over substance to undermine the essential purpose of the Legislature’s venue statute.” In a separate dissenting opinion, Justice Dale Wainwright expressed his fear that the Supreme Court majority’s method of interpreting the venue statute “could open a Pandora’s box of unintended consequences” by not enforcing the Legislature’s instruction to trial courts to find specified factors to order a convenience transfer. Virgil Yanta, lead counsel for Garcia, also contends the majority ignores the statutory requirements that a trial court make findings before transferring a case for convenience. Under �15.002(b), a court may transfer a case from a county of proper venue to any other county of proper venue if the court “finds” that keeping the suit in the county where it was filed would cause economic and personal hardship for the party seeking the transfer, the balance of interests of all the parties favors the move, and the transfer would not work an injustice to any other party. “Our Supreme Court has chosen to utterly ignore the clear wording of the legislation,” Yanta, principal in San Antonio’s Yanta Law Firm, alleges. “It wipes out venue for every plaintiff,” Yanta says of the court’s decision. Sharon Callaway, appellate attorney for J&R and Garza, says the plaintiff’s argument ignores the wording of �15.002(b). “The statute did not require written findings,” says Callaway, a shareholder in San Antonio’s Crofts & Callaway. “The court of appeals, in our view, rewrote the statute. “ Supreme Court Justice Wallace Jefferson, Callaway’s former law partner, did not participate in the high court’s decision. Sen. Robert Duncan, a Lubbock Republican who sponsored the 1995 legislation that changed the venue statute, says he thinks the Supreme Court majority reached the right decision. As long as a trial court transfers a case to a county of proper venue, the convenience element in TCPRC �15 would be satisfied, says Duncan, a partner in Crenshaw, Dupree & Milam in Lubbock. The statute provides guidelines for courts to consider when deciding whether to transfer a case based on convenience, he says. Rhodes says the statute doesn’t give plaintiffs any rights. “If I’m a defendant, anytime I challenge venue, I’m including an argument that, alternatively, I’m challenging based on inconvenience to me,” Rhodes says. “It seems that as long as I have that statement in there and the trial judge signs a general order that doesn’t state the grounds, then the venue determination is always insulated. “ In addressing an issue of first impression, the Supreme Court also dashed Garcia’s hopes for a new trial. Garcia argued in a brief to the 13 th Court that the jury decision not to award her damages for physical impairment or disfigurement was against the weight and preponderance of the evidence presented at trial. She sought a new trial on that ground. The defendants argued in a reply brief to the Supreme Court that the 13 th Court never had jurisdiction over Garcia’s case because she failed to pay a $15 filing fee. Texas Government Code �51.317(b)(2) requires district clerks to collect a $15 filing fee for a motion for new trial. The Supreme Court held in 1996′s Tate v. E.I. DuPont de Nemours & Co. that a motion for a new trial filed without the necessary filing fee is still conditionally filed when the motion is presented to the clerk. In Garza, the court extends that rule to a filing fee that never was paid. “This is not to say filing fees are irrelevant,” Brister wrote, noting that because Garcia never paid the new trial fee the 13 th Court correctly never addressed her factual sufficiency complaint. Because J&R and Garza raised the filing fee issue, Garcia can’t take her complaint back to the 13 th Court. “It ended up being a pretty big deal,” Callaway says.

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