Brookshire Grocery Co. v. Smith

• Decision Date: 20 February 2003
• Docket Number: No. 09-02-226 CV.,09-02-226 CV.
• Citation: 99 S.W.3d 819
• Parties: BROOKSHIRE GROCERY COMPANY, Appellant, v. Robert Elton SMITH, Appellee.
• Court: Texas Court of Appeals

Page 819

99 S.W.3d 819

BROOKSHIRE GROCERY COMPANY, Appellant, v. Robert Elton SMITH, Appellee.

No. 09-02-226 CV.

Court of Appeals of Texas, Beaumont.

Submitted January 8, 2003.

Decided February 20, 2003.

Brian J. Brandstetter, Gwinn & Roby, Fort Worth, for appellant.

Curtis W. Leister, John Werner, Reaud, Morgan & Quinn, Inc., Beaumont, for appellee.

Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.

OPINION

PER CURIAM.

Robert Elton Smith filed suit in 1994 against appellant, Brookshire Grocery Company, his nonsubscriber employer, for injuries he sustained on the job in 1992. Finding Brookshire Grocery negligent, a jury returned a verdict in Smith's favor. Brookshire Grocery brings three issues on appeal: venue, an evidentiary ruling, and the calculation of prejudgment interest. As we conclude none of the issues presented requires reversal, we affirm the trial court's judgment.

VENUE

Smith initially filed suit against Brookshire Grocery Company in Jefferson County, Texas. Brookshire Grocery filed a motion to transfer venue. Before any hearing was held on the venue motion, Smith nonsuited the claim. He then filed suit in Hardin County against Brookshire Grocery Company and Brookshire Brothers, Inc. ("Brookshire, Inc.") Although Brookshire Grocery filed a motion to transfer venue in the Hardin County suit, Brookshire, Inc. did not challenge venue and filed only an answer. Shortly thereafter, Smith nonsuited Brookshire, Inc. The trial court denied Brookshire Grocery's venue motion.

Appellant failed to include a reporter's record of the hearing on the motion to transfer venue. Smith maintains this failure requires our rejection of appellant's venue issue. The venue hearing was conducted in November 1994, but the trial was not held and the judgment not signed until April 2002. On June 5, 2002, Brookshire Grocery requested the venue hearing be included in the reporter's record on appeal. In a letter dated July 26, 2002, the court reporter explained she no longer had notes of the 1994 venue hearing. By statute, the court reporter is required to preserve the notes of the hearing for "three years from the date on which they were taken[.]" TEX. GOV'T CODE ANN. § 52.046(a)(4) (Vernon 1998). The Texas Supreme Court has stated that "[i]f a litigant has not requested the reporter to prepare a statement of facts within three years, nor specifically requested that the notes of a proceeding be preserved beyond three years, then the litigant is not free from fault if the notes are destroyed as the statute authorizes." Piotrowski v. Minns, 873 S.W.2d 368, 371 (Tex.1993); see Ganesan v. Vallabhaneni, 96 S.W.3d 345, 348-50 (Tex.App.-Austin 2002, pet. denied).

We need not decide venue on this preservation issue, however. Brookshire Grocery has asserted on appeal, supported by its attorney's affidavit, that no evidence was offered or admitted at the venue hearing. Appellant's assertion is not disputed by Smith, and we take as true appellant's uncontradicted statement of fact. See TEX. R.APP. P. 38.1(f). The clerk's record is complete. While we emphasize the importance of a complete record of the trial court proceedings and arguments presented at the venue hearing, we will address the merits of the venue issue in this case on the record presented here.

The 1985 venue statute applies in this case. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3246-3251. When suit was filed in 1994, section 15.061, quoted below, set out the following rule regarding venue over multiple defendants:

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 provisions of Subchapter B [mandatory venue provisions] requiring transfer of the claim or cause of action, on proper objection, to the mandatory county.¹

The current statute, amended in 1995, provides that in a suit in which the plaintiff has established proper venue against a defendant, the court also has venue of all the defendants in all claims or actions arising out of the same transaction, occurrences, or series of transactions or occurrences. See TEX. CIV. PRAC. & REM.CODE ANN. § 15.005 (Vernon 2002). Section 15.0641 of the 1995 venue statute also provides that in a suit in which two or more defendants are joined, any action or omission by one defendant in relation to venue, including a waiver of venue by one defendant, does not operate to impair or diminish the right of any other defendant to properly challenge venue. See TEX. CIV. PRAC. & REM.CODE ANN. § 15.0641 (Vernon 2002). The 1985 statute, which applies in this case, does not contain that provision.

We note that appellant does not raise the procedural issue set out in GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 543-44 (Tex.1998). Depending on the state of the record at the time of the filing of a nonsuit, if an objection to venue has been filed and the plaintiff then takes a nonsuit and has not specifically denied the venue facts averred by the party seeking transfer, the venue facts alleged in the motion to transfer may be taken as true. GeoChem Tech Corp., 962 S.W.2d at 543. It is possible the procedural posture at the time of the nonsuit here was insufficient to establish venue in the county to which appellant then sought transfer; but we do not address the GeoChem issue as it has not been asserted in this case.

Smith made Hardin County his venue choice. Because Brookshire, Inc. did not object to venue in Hardin County by filing a transfer motion, the Hardin County trial court had venue over Brookshire, Inc. See TEX.R. CIV. P. 86(1). Under the applicable statute, if the court had venue of a claim as to one defendant, the court had venue over the claims against all defendants. See TEX. CIV. PRAC. & REM.CODE ANN. § 15.061; Polaris Inv. Management Corp. v. Abascal, 892 S.W.2d 860 (Tex.1995). As the Supreme Court stated in Polaris, "Venue is a creature of legislative grace, and ... the power to make venue changes is purely statutory." Id. at 862. The Supreme Court stated in Polaris that the plain wording of section 15.061 appears to permit the joinder of additional claims, and the Court declined to reinterpret section 15.061 in such a way as to prohibit what Polaris characterized as the "tag-along" venue of the plaintiffs: "It is not within the province of this Court to reconstrue, rewrite, or contravene a venue statute when the intent of the Legislature is clear." Id.; see also Bleeker v. Villarreal, 941 S.W.2d 163 (Tex.App.-Corpus Christi 1996, writ dism'd by agreement); but see WTFO, Inc. v. Braithwaite, 899 S.W.2d 709 (Tex.App.-Dallas 1995, no writ) (Waiver of venue by one defendant does not prevent another defendant from challenging venue.); Pearson v. Jones Co., Ltd., 898 S.W.2d 329 (Tex.App.-Eastland 1994, no writ) (Even though two of four defendants filed an answer without challenging venue, they could not waive other defendants' objections to venue.). In Polaris, the Supreme Court indicated any change in section 15.061 was up to the legislature. See Polaris, 892 S.W.2d at 862. In the 1995 venue statute, the legislature repealed section 15.061 and added sections 15.005 and 15.064; Section 15.061 applies here because this suit was filed before section 15.061 was repealed and before sections 15.005 and 15.064 were added. We find the language of the 1985 statute is clear.

Brookshire Grocery further maintains Smith failed to put on a prima facie case that Brookshire, Inc. was properly joined to justify appellant's "tag along" venue. From the record before us, we cannot determine that Brookshire, Inc. was joined solely to fix venue. Prior to dismissing Brookshire, Inc. from the suit, Smith's pleadings alleged negligence on the part of both appellant and Brookshire, Inc. We note Brookshire Grocery pleaded in its amended answer that any injury sustained by Smith was caused by or, in effect, aggravated by "subsequently occurring incidents and conditions." It is undisputed that Smith worked for Brookshire, Inc. in Hardin County after the injury at appellant's store in Smith County. Appellant filed no special exceptions requesting Smith to plead more particularly how Brookshire, Inc. was negligent and caused injury to Smith.

Appellant further argues that, in order to establish venue in Hardin County, Smith must establish he acted in good faith in joining Brookshire, Inc., the resident defendant. Appellant did not object to the joinder of Brookshire, Inc. and never sought a severance; appellant waived any claim regarding improper joinder. See Rosales v. H.E. Butt Grocery Co., 905 S.W.2d 745, 751 (Tex.App.-San Antonio 1995, writ denied). We are unable to determine from this record there was any bad faith on the part of Smith in filing suit against Brookshire, Inc. and appellant in Hardin County.

We conclude the trial court did not err in maintaining venue in Hardin County. Issue one is overruled.

EXCLUSION OF EVIDENCE

In point of error two, Brookshire Grocery contends the trial court erred in excluding evidence that Smith falsified an answer on his job application by failing to disclose his previous back surgery. A question on the employment application asked whether Smith had ever been seriously injured on the job. Smith answered "no." In the bill of exception testimony, Smith indicated he gave the "no" answer because at the time he did not consider his injury to be serious. Upon reflection, he agreed the correct answer would have been "yes." The evidence arguably was admissible for the purpose of impeachment of Smith's credibility.

Even though the evidence was admissible, Brookshire Grocery must still show the exclusion of the evidence was harmful. See Texas Dep't of Transp....