IN THE SUPREME COURT OF TEXAS
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No. 06-0414
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In re Team Rocket, L.P., MLF
Airframes, Inc.,
and Mark L. Frederick, Relators
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On Petition for Writ of Mandamus
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Argued February
15, 2007
Justice Green delivered the opinion of the Court.
Justice Wainwright filed a concurring
opinion, in which Chief Justice Jefferson
and Justice O’Neill joined.
In this case, we decide whether a
plaintiff who was denied his initial venue of choice can nonsuit
his case in the transferee county and refile in a third
county. We hold that a plaintiff cannot avoid a venue ruling in such a way.
Because the trial court in the third county refused to enforce the prior order
setting venue in the transferee county, we conditionally grant the writ of
mandamus.
I
Thomas Creekmore
died when the airplane he was flying crashed in Fort Bend County. His family brought negligence,
strict liability, survival, and wrongful death claims in Harris County against
Team Rocket, L.P., MLF Airframes, Inc., and Mark L. Frederick (collectively,
Team Rocket), related to Team Rocket’s manufacture and sale of the plane kit
that Creekmore had purchased. Team Rocket moved to
transfer venue, arguing that venue was improper in Harris County
because they did not deliver the kit parts to Creekmore’s
residence there. The Harris County trial court agreed and transferred the case to
Williamson County, Team Rocket’s principal place of
business and the residence of its representative. After the transfer, the Creekmores voluntarily nonsuited
the case and immediately refiled the same claims
against the same defendants in Fort
Bend County.
Team Rocket moved to transfer venue to Williamson
County based on the Harris County
trial court’s prior venue order and the doctrine of collateral estoppel. The Fort
Bend County
trial court denied the motion. Team Rocket then sought mandamus relief in the
court of appeals, which denied the petition. ___ S.W.3d ___,
___ (Tex. App.—Houston [14th Dist.] 2006).
II
We grant the extraordinary relief of
mandamus only when the trial court has clearly abused its discretion and the relator lacks an adequate appellate remedy. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–40 (Tex.
2004) (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)). In this case, Team Rocket
argues that they are entitled to mandamus relief because collateral estoppel bars reconsideration of the Harris
County trial court’s final venue
ruling, and because the Fort Bend County
trial court’s refusal to transfer the case back to Williamson County
violated Texas Rule of Civil Procedure 87(5). Team Rocket also argues that,
rather than requiring the parties to proceed to trial following an erroneous
venue ruling, exceptional circumstances exist to justify granting mandamus
relief. The Creekmores contend that they had an
absolute right to nonsuit their case and refile in Fort
Bend County.
A
A plaintiff may nonsuit
his case at any time prior to the close of the plaintiff’s pre-rebuttal
evidence. Tex. R. Civ. P. 162.
“Subject to certain conditions, a plaintiff who takes a nonsuit
is not precluded from filing a subsequent suit seeking the same relief.” Aetna Cas.
& Sur. Co. v. Specia, 849 S.W.2d 805, 806 (Tex. 1993). The issue in
this case is whether that general rule allows a plaintiff to use the procedural
vehicle of nonsuiting a case to avoid unfavorable
venue rulings.
The plaintiff gets the first choice
of venue by filing suit. In re Masonite
Corp., 997 S.W.2d 194, 197 (Tex.
1999). The defendant, however, may challenge that venue selection, and a
court must “transfer an action to another county of proper venue if . . . the
county in which the action is pending is not a proper county.” Tex. Civ. Prac. & Rem. Code §
15.063(1); see Tex. R. Civ. P. 87 (procedures for
filing motions to transfer venue). In this case, the Creekmores initially filed suit in Harris County,
their county of residence. Team Rocket challenged venue, asserting that the
defendants did not reside there and that a substantial portion of the events
giving rise to the cause of action did not occur there. See Tex. Civ. Prac. & Rem. Code §
15.002(a)(1)–(2). The Harris
County trial court determined that Harris County
was not a proper venue, but that venue was proper in Williamson County.
Team Rocket argues that only one
venue determination may be made in a proceeding and that Texas Rule of Civil
Procedure 87 specifically prohibits changes in venue after the initial venue
ruling. We agree. Once a trial court has ruled on proper venue, that decision
cannot be the subject of interlocutory appeal. Id. § 15.064(a) (“No interlocutory
appeal shall lie from the determination.”); Tex. R. Civ. P. 87(6) (“There shall be no interlocutory
appeals from such determination.”). Moreover, Rule 87 states that “if an action
has been transferred to a proper county in response to a motion to transfer,
then no further motions to transfer shall be considered.” Tex. R. Civ. P. 87(5). Although a trial
court’s ruling transferring venue is interlocutory for the parties, and thus
not subject to immediate appeal, the order is final for the transferring court
as long as it is not altered within the court’s thirty-day plenary
jurisdiction. See In re Sw.
Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.
2000) (per curiam). Once a ruling is made on
the merits, as in a summary judgment, that decision becomes final as to that
issue and cannot be vitiated by nonsuiting and refiling the case. See Hyundai Motor Co. v. Alvarado,
892 S.W.2d 853, 855 (Tex.
1995) (per curiam) (“A nonsuit
sought after [a partial summary judgment] results in a dismissal with prejudice
as to the issues pronounced in favor of the defendant.”). This concept is
rooted in the long-standing and fundamental judicial doctrines of res judicata and collateral estoppel, which “promote judicial efficiency, protect
parties from multiple lawsuits, and prevent inconsistent judgments by
precluding the relitigation” of matters that have
already been decided or could have been litigated in a prior suit. Sysco Food Servs., Inc.
v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994); accord Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007). Just as a decision on the merits
cannot be circumvented by nonsuiting and refiling the case, a final determination fixing venue in a
particular county must likewise be protected from relitigation.
Cf. Wichita Falls & S. R.R. Co. v. McDonald, 174 S.W.2d 951,
952–53 (Tex. 1943) (“[A] ruling on a plea of privilege is treated as final in
so far as it disposes of the issue as to the venue of the case. . . . [A]n
interlocutory order of court overruling a plea of privilege shall become final
in so far as the venue question is concerned, within the same time and under
the same circumstances that a judgment on the merits of the case would become
final.”).
Reading Section 15.064 of the Texas
Civil Practice and Remedies Code and Rule 87 together, we conclude that once a
venue determination has been made, that determination is conclusive as to those
parties and claims. Because venue is then fixed in any suit involving the same
parties and claims, it cannot be overcome by a nonsuit
and subsequent refiling in another county. Cf. H.
H. Watson Co. v. Cobb Grain Co., 292 S.W. 174, 177 (Tex. Comm’n App. 1927, judgm’t
adopted) (holding that a plaintiff’s nonsuit
following the trial court’s hearing on a plea of privilege “unalterably fixed
the venue of any suit involving any subsequent controversy between the parties,
relating to the subject-matter of the original suit in the county where the
defendants reside,” and that “[t]he venue of such subsequent suit, if any, has
become res adjudicata.”).
Once the Harris County
trial court transferred the cause to the proper venue of Williamson
County, venue was fixed permanently in
Williamson County for these causes of action
between these parties. That venue was also proper in Fort Bend County does not change the result. The Fort Bend County trial court therefore abused its discretion by
refusing to enforce the prior venue order issued by the Harris County
trial court.
To interpret the provisions
otherwise would allow forum shopping, a practice we have repeatedly prohibited.
See, e.g., In re Autonation,
Inc., 228 S.W.3d 663, 667–68 (Tex.
2007). If a plaintiff has an absolute right to nonsuit
and refile, as the Creekmores
contend, nothing could stop him from filing in each of Texas’s 254 counties until he finds a
favorable venue. And, under the Creekmores’
interpretation, defendants would be left with no remedy and would have to
endure a trial in the wrong venue, while a plaintiff could avoid any number of
venue rulings simply by nonsuiting and refiling his case. We do not believe that the Legislature
intended such a situation. Indeed, the plea of privilege practice that
existed before amendment of the predecessor to Section 15.064 prevented that
outcome. See H. H. Watson Co., 292 S.W. at 177; Ruiz
v. Conoco, Inc., 868 S.W.2d 752, 756–57 (Tex. 1993). When
a plea of privilege was sustained and a cause then transferred, a plaintiff’s nonsuit became res judicata as to venue if the plaintiff asserted the same
cause of action against the defendant in a subsequent suit. See Geochem Tech Corp. v. Verseckes,
962 S.W.2d 541, 543 (Tex. 1998) (recognizing that, under the previous plea of
privilege practice, when a plaintiff took a nonsuit
while a proper plea of privilege was pending, the dismissal was deemed an
admission that venue was improper in the original county, and venue became
fixed in the county to which transfer was sought); Ruiz, 868 S.W.2d at
756–57 (explaining that although referred to as “res judicata,” the rule was really based on the dismissal being
“deemed an admission of the merit of the plea”). Though we no longer have a
plea of privilege under our statutes or rules, the rationale of “protect[ing] defendants from the harassment and expense of several
contests on the issue of venue” remains. First Nat’l Bank
in Dallas v. Hannay, 67 S.W.2d 215, 215 (Tex. 1933) (per curiam).
The only remedy afforded by the
Legislature when a party loses a venue hearing is to proceed with trial in the
transferee county and appeal any judgment from that court on the basis of
alleged error in the venue ruling. Tex.
Civ. Prac. & Rem. Code
§ 15.064(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.”).
The Creekmores chose not to avail themselves of that
prescribed remedy and instead attempted to circumvent the venue ruling by nonsuiting and refiling. As we
said in Masonite, “the plaintiffs had the
first choice, but not the second, of a proper venue.” 997 S.W.2d at 198
(emphasis added).
All three courts of appeals that
have addressed the issue of voluntary nonsuiting and refiling in a different county following a transfer of
venue have held that this practice violates Texas venue procedure. Fincher v. Wright,
141 S.W.3d 255, 260 (Tex. App.—Fort Worth 2004, orig. proceeding) (“While on
its face rule 87(5) appears to apply only to venue determinations by the same
trial court in the same case, the same principle should apply to prohibit a
subsequent trial court—in a case involving the same parties and claims—from
making its own venue determination independently of the first court.”); In
re Shell Oil Co., 128 S.W.3d 694, 696 (Tex. App.—Beaumont 2004, orig.
proceeding) (“Venue of any subsequent suit involving the same subject matter
and the same parties as the initial suit is governed by the venue determination
in the initial suit.”); Hendrick Med. Ctr.
v. Howell, 690 S.W.2d 42, 45–46 (Tex. App.—Dallas 1985, orig. proceeding)
(“Permitting a plaintiff to avoid being bound by a venue determination simply
by nonsuiting and subsequently refiling
the same cause of action against the same parties in a county other than that
in which venue was determined to be proper would, in effect, circumvent the
legislature’s intent that there be only one venue determination in a cause of
action.”). They differ only in their analysis of the available appellate
remedy, which we address next. Compare Shell Oil, 128 S.W.3d at 697
(issuing writ of mandamus compelling trial court to enforce original venue
transfer), with Hendrick Med. Ctr., 690 S.W.2d
at 45–46 (denying writ of mandamus despite improper venue procedure because an
adequate appellate remedy existed).
B
The adequacy of an appellate remedy
must be determined by balancing the benefits of mandamus review against the
detriments. Prudential Ins. Co. of Am., 148 S.W.3d
124, 136 (Tex.
2004). In evaluating benefits and detriments, we consider whether
mandamus will preserve important substantive and procedural rights from
impairment or loss. Id.
Our venue statutes create a balance: a plaintiff has the first choice of venue
when he files suit, and a defendant is restricted to one motion to transfer
that venue. See Masonite, 997 S.W.2d at
197–98; Tex. R. Civ. P. 87(5). By
defying the Harris
County trial court’s
venue ruling by nonsuiting and refiling
elsewhere, the Creekmores disrupted that balance in
their favor and thereby impaired Team Rocket’s procedural rights.
In addition to impairment of rights,
we consider whether mandamus will “allow the appellate courts to give needed
and helpful direction to the law that would otherwise prove elusive in appeals
from final judgments.” Prudential, 148 S.W.3d at 136.
This petition involves a legal issue—the construction of Texas venue statutes and related rules in
the context of voluntary nonsuit—that is likely to
recur, as demonstrated by the court of appeals’ decisions that have already
addressed it. See Fincher, 141 S.W.3d 255;
Shell Oil, 128 S.W.3d 694; Hendrick
Med. Ctr., 690 S.W.2d 42.
Finally, we consider whether
mandamus will spare litigants and the public “the time and money utterly wasted
enduring eventual reversal of improperly conducted proceedings.” Prudential, 148 S.W.3d at 136. Although we generally
do not grant a petition for mandamus for venue determinations absent
extraordinary circumstances, we have granted mandamus relief when the trial
court issued an improper order transferring venue that “wrongfully burdened
fourteen other courts in fourteen other counties, hundreds of potential jurors
in those counties, and thousands of taxpayer dollars in those counties.” Masonite, 997 S.W.2d at 199.
When, as in this case, a trial court improperly applied the venue statute and
issued a ruling that permits a plaintiff to abuse the legal system by refiling his case in county after county, which would
inevitably result in considerable expense to taxpayers and defendants,
requiring defendants to proceed to trial in the wrong county is not an adequate
remedy. See Prudential, 148 S.W.3d at 137.
“[A]n appellate remedy is not inadequate merely because it may involve more
expense or delay than obtaining an extraordinary writ,” Walker, 827
S.W.2d at 842, but extraordinary relief can be warranted when a trial court
subjects taxpayers, defendants, and all of the state’s district courts to
meaningless proceedings and trials. See Prudential, 148
S.W.3d at 137.
We have granted mandamus relief in
the context of Rule 87 venue rulings where, as here, the trial court made no
effort to follow the rule. See Henderson v. O’Neill, 797 S.W.2d 905, 905
(Tex. 1990) (per curiam); cf. Bridgestone/Firestone,
Inc. v. Thirteenth Court of Appeals, 929 S.W.2d 440, 442 (Tex. 1996) (per curiam) (explaining that, in that Rule 87 venue case, no
extraordinary circumstances existed to justify mandamus relief). In this case,
the Creekmores defied the Harris County
trial court’s venue order by attempting to have another court revisit the
question of venue, which had already been decided. To say that the Fort Bend
County trial court, which
violated statutory venue procedure and Rule 87(5), committed reversible error
while declining to correct the injustice would compromise the integrity of the
venue statute and result in an irreversible waste of resources. We hold that
Team Rocket has no adequate appellate remedy.
III
For the reasons described above, we
conditionally grant the writ of mandamus directing the Fort
Bend County
trial court to vacate its venue order and transfer the Creekmores’
case to Williamson
County. If the court
fails to do so, the writ will issue.
_____________________________
PAUL
W. GREEN
JUSTICE
OPINION DELIVERED: May 23, 2008
