Excel v. Porras

• Decision Date: 21 October 1999
• Docket Number: No. 13-98-659-CV,13-98-659-CV
• Citation: 14 S.W.3d 307
• Parties: (Tex.App.-Corpus Christi 1999) EXCEL CORPORATION, Appellant, v. RUBEN PORRAS, Appellee
• Court: Texas Court of Appeals

Page 307

14 S.W.3d 307 (Tex.App.-Corpus Christi 1999)

EXCEL CORPORATION, Appellant, v. RUBEN PORRAS, Appellee.

No. 13-98-659-CV

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI

October 21, 1999

Rehearing Overruled January 2, 2000.

Publication Ordered March 23, 2000

On appeal from the 138th District Court of Cameron County, Texas. [Copyrighted Material Omitted] Before Justices Dorsey, Hinojosa, and Chavez. Opinion by Justice Chavez.

OPINION

Opinion by Justice Chavez

Excel Corporation appeals from a judgment taken against it by Ruben Porras, a former employee. Porras's job was to mop blood from an area below where the first stages of cow butchering were performed at Excel's slaughterhouse in Friona, Parmer County, Texas. Porras sued Excel and its parent corporation, Cargill, Inc., alleging that Excel's negligence caused him to be injured when a knife was dropped on him. Porras non-suited Cargill on the second day of trial. Trial proceeded against Excel and the trial judge directed a verdict that Excel was negligent, the jury determined that Excel was grossly negligent, and the jury awarded $ 246,720 in actual damages and $ 754,000 in exemplary damages.

On appeal, Excel contends that the trial court erred in overruling its motion to transfer venue, directing a verdict for Porras on his negligence claim, refusing to submit the issue of comparative responsibility to the jury, allowing evidence of other injuries at Excel's facility, excluding the testimony of its expert witness, and including the testimony of Porras's expert witness. Excel also challenges the sufficiency of the evidence supporting liability and damages. We hold that venue was improper in Cameron County and reverse the judgment of the trial court.

The Texas venue laws were amended in 1995. The amending act "applies only to a suit commenced on or after September 1, 1995." Act of May 18, 1995, 74th Leg., R.S., ch. 138, 11(a), 1995 Tex. Gen. Laws 983. This suit commenced May 6, 1994. Therefore, the former venue statute applies to this case. That statute provided:

Foreign corporations, private or public, joint-stock companies or associations, not incorporated by the laws of this state, and doing business in this state, may be sued in any county in which all or a part of the cause of action accrued, or in any county in which the company may have an agency or representative, or in the county in which the principal office of the company may be situated, or, if the defendant corporation has no agency or representative in this state, then in the county in which the plaintiffs or either of them reside. Former TEX. CIV. PRAC. & REM. CODE ANN. 15.037 (Vernon 1986) (repealed), Act of June 17, 1983, 68th Leg., R.S., ch. 385, 3(g), 1983 Tex. Gen. Laws 2123.

The statute further provided that:

When two or more parties are joined as defendants in the same action and/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 . . . . Former TEX. CIV. PRAC. & REM. CODE ANN. 15.061 (Vernon 1986) (repealed), Act of June 17, 1983, 68th Leg., R.S., ch. 385, 4(a), 1983 Tex. Gen. Laws 2123-24.

Porras sought to maintain venue in Cameron County on the ground that the manager of a grain elevator operated by co-defendant Cargill in Cameron County had sufficient power and discretion to constitute an agency or representative.

When venue is an issue on appeal, the appellate court must conduct an independent review of the entire record to determine whether venue was proper in the county of suit. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993). If there is any probative evidence in the record that venue was proper in the county where judgment was rendered, the appellate court must uphold the trial court's determination. Id. The terms "agency" and "representative" as used in this statute are not to be interpreted in light of the law of respondeat superior. Ford Motor Co. v. Miles, 967 S.W.2d 377, 380 (Tex. 1998) (citing Milligan v. Southern Express, Inc., 151 Tex. 315, 250 S.W.2d 194, 197 (Tex. 1952)). An ordinary employee is neither an agency or a representative, rather, the agency or representative must have broad power and discretion to act for the corporation. Ruiz S.W.2d at 759.

The parties disagree regarding whether we, as an appellate court, should consider evidence that tends to undermine the venue facts relied on by the plaintiffs. The disagreement centers on the proper interpretation of this passage from the Texas Supreme Court's Ruiz opinion:

The procedure mandated by this statute is fundamentally flawed because it allows appellate review of venue on a basis different from that on which it was decided. In deciding a motion to transfer venue, the trial court is required by Rule 87, TEX. R. CIV.P., to take as true those facts of which prima facie proof is made by the party with the burden of such proof; yet in reviewing the trial court's decision, an appellate court must reverse (there cannot be harmless error) if other evidence in the record, even evidence adduced after venue was determined, destroys the prima facie proof on which the trial court relied. Prima facie proof is not subject to rebuttal, cross-examination, impeachment or even disproof. The evidence as a whole may well show that prima facie proof was misleading or wrong. But while the wisdom of the statute may be challenged, there is no misunderstanding its plain language: an appellate court is obliged to conduct an independent review of the entire record to determine whether venue was proper in the ultimate county of suit.

Ruiz, 868 S.W.2d at 757-58.

Porras relies on the sentence stating that "prima facie proof is not subject to rebuttal, cross-examination, impeachment, or even disproof." However, viewed in context, it becomes clear that this sentence refers to the proper approach for the trial court. Porras neglects the sentence that states "Yet, in reviewing the trial court's decision, an appellate court must reverse . . . if other evidence in the record . . . destroys the prima facie proof." (emphasis added). We, as an appellate court, are instructed to consider not only the prima facie proof presented by the plaintiff to support venue, but also "other evidence" that "destroys the prima facie proof." Ruiz, 868 S.W.2d at 757.

The parties also disagree regarding the completeness of the record before us. Porras asked the trial judge to take judicial notice of the "files" in two other cases filed against Excel in Cameron County. Porras did not specify any parts of the "files" he wished the court to consider, nor did he provide the trial court with copies of any parts of the files. Neither Excel nor Porras has requested that any part of the record for either of those two cases be included in the record for this case, and no such documents are included in the record. Porras argues that, because the files of those two cases are not included in the record on appeal, Excel has failed to present this Court with a complete record, and we are obligated to presume that the missing materials support Porras.

We disagree. Because Porras never specified which parts of the files of the other two cases it considered beneficial to its venue arguments, Excel could not request specific items from those files. A request for "the file" would be akin to a request for "all papers filed in the case," which is impermissibly vague. TEX. R. APP. P. 34(b)(2) (request must be specific). Although rule 34(b)(1) permits "any party" to request the inclusion of additional items in the record, Porras made no such request. TEX. R. APP. P. 34(b)(1). We hold that Porras waived his right to rely on the files of the other two cases by not specifying any parts of those files it wished to rely on and by not requesting that the trial court clerk include any such items in the appellate record.

Porras asserts that the manager of the Cameron County grain elevator, Ted Warehime, had broad discretion because Cargill entrusted him with the following powers:

(1) training and supervising employees

(2) being responsible for safety at the Cameron County grain elevator

(3) assigning work to employees

(4) advertising for business

(5) granting or denying credit

(6) entering into contracts and authorizing expenditures for maintenance and repairs

(7) accepting payments for Cargill

(8) buying and selling grain, sometimes involving large sums of money

(9) handling bills of lading

Porras also contends that Warehime "was" Cargill in Cameron County, and, through Warehime, Cargill conducted regular and systematic business in Cameron County.

Excel contends that Warehime's authority in the management of employees was limited. Warehime did not have the authority to set wages for employees, rather, wages were set by Cargill employees elsewhere. Warehime had to obtain permission before terminating any employees. Although Warehime was authorized to hire temporary workers, the number of workers to be hired had to be approved by Warehime's supervisor in Wichita, Kansas.

With regard to Warehime's authority in financial matters, Excel insists that Warehime's authority was also carefully limited. Although Warehime bought and sold grain, sometimes amounts worth over $ 200,000 at a time, Warehime testified that the prices were controlled by "bid price" that came into his office from Minneapolis as often as three or four times a day. Although Warehime was authorized to try to get a better price, the bid price sent to him was used in approximately eighty-to-ninety percent of all transactions. Warehime explained that, due to competition from other grain elevators, he was usually unable to obtain a significantly better price. Warehime had no discretion to accept a worse price than the one sent to him by Cargill. All the non-price terms of these transactions were fixed in...