Blalock Prescription Center, Inc. v. Lopez-Guerra, LOPEZ-GUERRA and S
| Decision Date | 05 November 1998 |
| Docket Number | No. 13-98-368-CV,LOPEZ-GUERRA and S,13-98-368-CV |
| Citation | 986 S.W.2d 658 |
| Parties | BLALOCK PRESCRIPTION CENTER, INC., et al., Appellants, v. Evaharon Limpach, Appellees. |
| Court | Texas Court of Appeals |
Susan Elizabeth Burnett, Burgain G. Hayes, Ken Ferguson, Clark, Thomas & Winters, David C. Duggins, Austin, Roger W. Hughes, Tom Lockhart, Adams & Graham, Harlingen, John L. Schouest, Matthew R. Muth, Phelps Dunbar, L.L.P., Houston, S. Vance Wittie, Alan R. Vickery, Michael A. Walsh, Kathryn W. Becker, Strasburger & Price, Dallas, Nora L. Longoria, Shelton & Vladezrs, McAllen, Ellen B. Mitchell, Wallace
B. Jefferson, Crofts, Callaway & Jefferson, P.C., San Antonio, Robert A. Valadez, Shelton, Lotz & Valadez, P.C., San Antonio, Suzanne Baker, Beirn, Maynard & Parson, Tracy C. Temple, Deanna Dean Smith, Carlson, Smith & Rymer, Marvin C. Moos, David P. O'Neal, Carlson & Smith, P.C., Houston, David P. Boyce, Wright & Greenhill, P.C., Brantley Ross Pringle, Wright & Greenhill, P.C., Demaris Gullekson, Brown, Maroney, Rose, Barber & Dye, Kelly M. Nye, Brown, McCarroll & Oaks, Doug Lackey, Jessie A. Amos, Brown, McCarroll & Oaks, Hartline, Stephanie A. Smith, Fulbright & Jaworski, Austin, Stacey A. Martinez, Fulbright & Jaworski, San Antonio, Marc Brian Collier, Marcy Hogan Greer, Fulbright & Jaworski, Austin, for appellants.
Michael T. Gallagher, Fisher, Gallagher & Lewis, Sharon S. McCally, Gallagher, Lewis & Downey, Houston, Preston Henrichson, Law Offices of Preston Henrichson, Edinburg, Juan R. Molina, Weslaco, Daryl L. Moore, Houston, for appellees.
Before HINOJOSA, YANEZ and RODRIGUEZ, JJ.
This is an accelerated appeal of the trial court's denial of a motion to transfer venue. 1 Appellants, Blalock Prescription Center, Inc.; American Home Products Corporation; Wyeth-Ayerst Laboratories Company, a division of American Home Products Corporation; A.H. Robbins Company, Inc.; Ion Laboratories, Inc.; Interneuron Pharmaceuticals, Inc.; Jones Medical Industries, Inc., as successor to Abana Pharmaceuticals, Inc.; Richwood Pharmaceutical Company, Inc.; Gate Pharmaceuticals, a division of TEVA Pharmaceuticals, USA, Inc.; H.E. Butt Grocery ("H.E.B."); SmithKline Beecham Corporation; and C. Jennis Tucker, M.D., 2 contend that venue is not proper in Hidalgo County, Texas as to appellee, Sharon Limpach, because she did not establish venue independently of appellee, Eva Lopez-Guerra, as required by section 15.003(a) of the civil practice and remedies code. Because we agree with appellants, we reverse and remand.
Appellees, Sharon Limpach and Eva Lopez-Guerra, sued appellants for alleged injuries resulting from the use of the prescription drugs phentermine, fenfluramine, 3 and dexfenfluramine, 4 commonly known as "fen/phen" or diet drugs. Medeva Pharmaceuticals, Inc., Fisions Corporation, Walmart Stores, Inc., and Michael T. Jelinek, M.D. were also sued by appellees but are not part of this appeal. Appellees alleged causes of action for products liability, negligence, and breach of express and implied warranties in the manufacture, sale, and distribution of these three drugs.
Lopez-Guerra resides in Hidalgo County. Dr. Jelinek resides and prescribed phentermine and dexfenfluramine in Hidalgo County for Lopez-Guerra's weight condition. Lopez-Guerra purchased the drugs from Walmart and H.E.B. stores in Hidalgo County. Lopez-Guerra was subsequently treated in Hidalgo County for alleged side effects of the drugs.
Limpach previously resided in Harris County, but now resides in Hays County. Dr. Tucker resides in Harris County. Dr. Tucker prescribed phentermine and fenfluramine for Limpach in Harris County, and Limpach purchased the drugs at Blalock Prescription Center, a Harris County business. Limpach was subsequently treated for alleged side effects by physicians located in Hays and Travis Counties. Limpach did not know Lopez-Guerra until the lawsuit was filed in Hidalgo County.
Appellees asserted in the trial court that venue is proper in Hidalgo County because all or a substantial part of the events giving rise to the claims occurred in Hidalgo County. See TEX. CIV. PRAC. & REM.CODE ANN. § 15.002(a)(1) (Vernon Supp.1998). They further asserted that all parties are properly joined, no party is prejudiced by venue in Hidalgo County, there is an essential need to have their claims tried in Hidalgo County, and Hidalgo County is a fair and convenient venue for all parties. See TEX. CIV. PRAC. & REM.CODE ANN. § 15.003(a) (Vernon Supp.1998).
Appellants specifically denied appellees' venue allegations. Claiming that Limpach could not establish venue in Hidalgo County under section 15.002, and that she did not independently establish venue for joinder under section 15.003(a), appellants moved the trial court to strike or sever Limpach's claims from those of Lopez-Guerra and to transfer Limpach's causes of action to one of several counties, including Harris County. Over appellants' objections, the trial court, without a hearing, denied the motions to transfer venue and overruled appellants' objections to the joinder of Limpach. In a subsequent order, the trial court overruled all objections raised by appellants to affidavits and other proof offered by appellees in support of the joinder.
The issue before us is whether Limpach could properly join the lawsuit filed by Lopez-Guerra in Hidalgo County. To decide this issue, we make an independent determination from the record. See TEX. CIV. PRAC. & REM.CODE ANN. § 15.003(c)(1) (Vernon Supp.1998). We do not consider whether the trial court abused its discretion, nor do we consider whether substantial evidence supports the trial court's decision. See id.
Each plaintiff in a lawsuit must establish venue independently of any other plaintiff. TEX. CIV. PRAC. & REM.CODE ANN. § 15.003(a). This may be accomplished by satisfying a mandatory or permissive venue provision, neither of which are applicable in this case, or by establishing venue under the general rule found in section 15.002. TEX. CIV. PRAC. & REM.CODE ANN. § 15.002(a) (Vernon Supp.1998). The general venue rule provides:
§ 15.002. Venue: General Rule
(a) Except as otherwise provided by this subchapter or Subchapter B 5 or C 6, all lawsuits shall be brought:
(1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;
(2) in the county of defendant's residence at the time the cause of action accrued if defendant is a natural person;
(3) in the county of the defendant's principal office in this state, if the defendant is not a natural person; or
(4) if Subdivision (1), (2), or (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action.
Limpach cannot satisfy the requirements of section 15.002. As we stated above, none of the events giving rise to Limpach's claims occurred in Hidalgo County. The drugs were prescribed and purchased in Harris County, and Limpach was treated for the alleged side effects in Hays and Travis counties, not Hidalgo County. Limpach admits she did not take the drugs in Hidalgo County. The only natural person Limpach is suing, Dr. Tucker, resided in Harris County at the time the cause of action accrued, and no corporate defendant had its principal office in Hidalgo County. When the drugs were prescribed and purchased, Limpach resided in Harris County. She now resides in Hays County. In order for Limpach to remain in Hidalgo County, she must establish that joinder is proper under the alternative method provided in section 15.003.
Section 15.003 provides that a person who is unable to establish proper venue may join a suit as a plaintiff only if that person, independently of any other plaintiff, establishes that:
(1) joinder or intervention in the suit is proper under the Texas Rules of Civil Procedure;
(2) maintaining venue in the county of suit does not unfairly prejudice another party to the suit;
(3) there is an essential need to have the person's claim tried in the county in which the suit is pending; and
(4) the county in which the suit is pending is a fair and convenient venue for the person seeking to join in or maintain venue for the suit and the persons against whom the suit is brought.
TEX. CIV. PRAC. & REM.CODE ANN. § 15.003(a). Limpach had the burden of establishing each of the above-listed four elements, independently of Lopez-Guerra. See Id. § 15.003(b). Limpach's general and factually unsupported venue allegation that "all parties are properly joined, no party is prejudiced by venue in Hidalgo County, there is an essential need to have the Plaintiff's claims tried in Hidalgo County, and it is a fair and convenient venue for all parties" was specifically denied by appellants.
All properly pleaded venue facts are taken as true unless specifically denied by an opposing party. TEX.R. CIV. P. 87(3)(a). When facts are specifically denied, the venue proponent must make prima facie proof of the denied facts. Id. Prima facie proof consists of properly pleaded venue facts along with filed affidavits and duly proved attachments to the affidavits that fully and specifically set forth the facts supporting such pleading. Id.; see also TEX. CIV. PRAC. & REM.CODE ANN. § 15.064(a) (Vernon 1986) ().
Affidavits must be made on personal knowledge, shall set forth specific facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify. TEX.R. CIV. P. 87(3)(a). Deposition transcripts, responses to requests for admission, answers to interrogatories, and other discovery products containing information relevant to a venue determination may be considered by the...
To continue reading
Request your trial
-
Martinez v. Pfizer Inc.
...or occurrence or series of transactions or occurrences. Tex. Instruments , 266 F.R.D. at 148 ; see also Blalock Prescription Ctr., Inc. v. Lopez-Guerra , 986 S.W.2d 658, 663 (Tex. App.—Corpus Christi 1998, no pet.). The logical relationship test is a "loose standard which permits a broad re......
-
Frost Nat. Bank v. L. & F Distributors, Ltd.
...Inc., 868 S.W.2d 752, 758 (Tex.1993); see Tex. Civ. Prac. & Rem.Code Ann. § 15.064(b) (Vernon 2002); see also Blalock Prescription Ctr., Inc. v. Lopez-Guerra, 986 S.W.2d 658, 663 (Tex.App.-Corpus Christi 1998, no pet.). This review should be conducted like any other review of a trial court'......
-
Wells Fargo Bank, N.A. v. American Gen. Life Ins.
...the other. "To arise from the same transaction, at least some of the facts must be relevant to both claims." Blalock Prescription Ctr., Inc. v. Lopez-Guerra, 986 S.W.2d 658, 663 (Tex.App.-Corpus Christi 1998, no pet.). There is nothing in Plaintiffs' pleadings or arguments to show that any ......
-
Cartwright v. Cologne Production Co.
...Inc., 868 S.W.2d 752, 758 (Tex.1993); see TEX. CIV. PRAC. & REM.CODE ANN. § 15.064(b) (Vernon 2002); see also Blalock Prescription Ctr., Inc. v. Lopez-Guerra, 986 S.W.2d 658, 663 (Tex.App.-Corpus Christi 1998, no pet.). This review should be conducted like any other review of a trial court'......