GeoChem Tech Corp. v. Verseckes, 11-95-106-CV

• Decision Date: 22 August 1996
• Docket Number: No. 11-95-106-CV,11-95-106-CV
• Citation: 929 S.W.2d 85
• Parties: GEOCHEM TECH CORPORATION, Appellant, v. Michael S. VERSECKES, et al, Appellees.
• Court: Texas Court of Appeals

Page 85

929 S.W.2d 85

GEOCHEM TECH CORPORATION, Appellant, v. Michael S. VERSECKES, et al, Appellees.

No. 11-95-106-CV.

Court of Appeals of Texas,

Eastland.

Aug. 22, 1996.

Rehearing Overruled Sept. 19, 1996.

Brenda Seale Gray, Breckenridge, Jerry K. Warren, Stacy Jordan Rodriguez, Locke Purnell Rain Harrell, Dallas, for Appellant.

William G. Thompson, Linda Bass Cauffman, Breckenridge, for Appellees.

Before ARNOT, C.J., and DICKENSON and WRIGHT, JJ.

OPINION

WRIGHT, Justice.

This is a summary judgment case which also presents issues regarding venue, requests for continuance, attorney's fees, and costs. The trial court to which this case was transferred entered partial summary judgment that appellant take nothing and, after a hearing thereon, awarded costs and attorney's fees to appellees. We affirm in part and reverse and remand in part.

Appellant ¹ first sued GeoSERV Company, Inc. and Michael S. Verseckes in Dallas County. Appellant sought injunctive relief and damages relating, among other things, to alleged misappropriation of trade secrets. Verseckes filed a motion to transfer the lawsuit to Van Zandt County. GeoSERV also filed a motion to transfer, but it requested that the lawsuit be transferred to Stephens County. Subsequently, Verseckes amended his motion to transfer and also sought to have the case transferred to Stephens County. Appellant then amended its petition and added the remaining appellees ² as defendants. The remaining appellees filed motions to transfer. There is some argument about whether these later motions to transfer were timely. In view of our disposition of this case, we need not reach that issue. Appellant nonsuited the entire case before the Dallas County district court ruled upon any of the motions to transfer. Subsequently, appellant refiled the suit in Van Zandt County against all appellees. Pursuant to motions to transfer filed by appellees, the district court in Van Zandt County transferred the lawsuit to the district court in Stephens County which granted partial summary judgment and later entered final judgment against appellant.

In its first point of error, appellant maintains that the trial court in Van Zandt County should not have transferred the case to Stephens County. Appellant argues that the case is primarily one seeking injunctive relief, that the mandatory venue provisions of TEX. CIV. PRAC. & REM. CODE ANN. § 65.023(a) (Vernon 1986) control, and that Verseckes was a resident of Van Zandt County. Appellees do not disagree that the mandatory venue provisions control. Appellees take the position that venue was fixed in Stephens County when appellant filed its nonsuit in the Dallas County suit. It is also appellees' position that all appellees were residents of Stephens County, including Verseckes.

The threshold question with which we are squarely presented is, under post-1983 venue practice, does a voluntary nonsuit taken after the filing of a motion to transfer but prior to a determination of that motion fix venue in the county to which transfer was sought?

Prior to the 1983 changes in venue practice, TEX.R.CIV.P. 86 provided in part:

When a plea of privilege is filed in accordance with this rule, it shall be prima facie proof of the defendant's right to change of venue.... If [the] adverse party desires to controvert the plea of privilege, he shall ... file a controverting plea under oath, setting out specifically the grounds relied upon to confer venue of such cause on the court where the cause is pending.

Because the filing of a proper plea of privilege by a defendant constituted prima facie proof of a defendant's right to obtain a transfer, the plaintiff had the burden of proof in the venue hearing. See Wilhelm v. Young, 624 S.W.2d 647 (Tex.App.-Eastland 1981, no writ).

Under the former law, it was generally held that, if a plaintiff nonsuited a case while a plea of privilege was pending, venue was fixed in the county named in the plea. Some courts reasoned that, upon the filing of a nonsuit, the plaintiff effectively abandoned its contest of a defendant's plea of privilege and, in effect, withdrew any controverting affidavit that it had filed in response thereto. Therefore, because the plea of privilege was prima facie proof of a defendant's right to transfer and there was effectively no contest, venue was fixed in the county named in the plea of privilege. See, e.g., Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222 (1943). Some courts have decided the issue upon the principle of res judicata. See, e.g., Royal Petroleum Corporation v. McCallum, 134 Tex. 543, 135 S.W.2d 958 (1940). However, the court in Ruiz v. Conoco, Inc., 868 S.W.2d 752 (Tex.1993), recently stated that a dismissal by voluntary nonsuit actually did not involve principles of res judicata. Rather, the dismissal was deemed to admit the merits of the plea. The rationale of the rule was based upon a desire to prevent a plaintiff from subjecting a defendant to the burden of making repeated venue challenges. Wilson v. Wilson, 601 S.W.2d 104, 105 (Tex.Civ.App.--Dallas 1980, no writ); see also Joiner v. Stephens, 457 S.W.2d 351, 352 (Tex.Civ.App.--El Paso 1970, no writ).

We have found no Texas cases and the parties have cited us to none which deal directly with this issue subsequent to the 1983 modification of venue practice. The dismissal in Ruiz was an involuntary dismissal. The Supreme Court held that an involuntary dismissal was not tantamount to a concession of the merits of a motion to transfer. The court specifically declined to discuss the issue not before them but now before us: the effect of a voluntary nonsuit taken prior to a court's ruling upon a pending motion to transfer.

It has been said that the former general venue statute favored the defendant in providing that the defendant be sued in the county of its residence and that the exceptions to the statute favored the plaintiff. The current law, however, first favors the right of the plaintiff to maintain venue in the county in which suit has been brought. Tenneco, Inc. v. Salyer, 739 S.W.2d 448, 449 (Tex.App.--Corpus Christi 1987, no writ). The plaintiff has the first choice of establishing venue in any permissible county. Wilson v. Texas Parks and Wildlife Department, 886 S.W.2d 259 (Tex.1994); Rosales v. H.E. Butt Grocery Company, 905 S.W.2d 745, 747 (Tex.App.--San Antonio 1995, writ den'd); Maranatha Temple, Inc. v. Enterprise Products Co., 833 S.W.2d 736 (Tex.App.--Houston [1st Dist.] 1992, no writ). That is true even though there are multiple counties which might be proper for venue purposes. Wilson v. Texas Parks and Wildlife Department, supra; Kerrville State Hospital v. Clark, 900 S.W.2d 425 (Tex.App.--Austin 1995, no writ).

After a plaintiff has made that first venue choice, any objection to an improper choice of venue must be made by proper motion. See Wichita County, Texas v. Hart, 917 S.W.2d 779, 781 (Tex.1996). In the absence of such a motion, such objection will be waived. TEX.R.CIV.P. 86. All properly pleaded venue facts are taken as true unless specifically denied by motion filed prior to or concurrently with any other plea. TEX.R.CIV.P. 87(3)(a). If there is a specific denial of venue facts, the party alleging those venue facts must make prima facie proof of the specifically denied venue facts. Rule 87(3)(a).

Although there is no requirement that the plaintiff file a response to a motion to transfer, such as a controverting affidavit under the pre-1983 law, upon a specific denial of venue facts, the plaintiff must establish prima facie proof of those denied venue facts. WTFO, Inc. v. Braithwaite, 899 S.W.2d 709, 714 (Tex.App.--Dallas 1995, no writ). If the plaintiff does so, then the lawsuit must not be transferred even though the requested transfer is to another county in which venue would have been permissible. Wilson v. Texas Parks and Wildlife Department, supra. If the plaintiff does not establish prima facie proof of the specifically denied venue facts, then it is incumbent upon the defendant to prove that venue is maintainable in the county to which the transfer is sought. That is because, unlike a plea of privilege, a motion to transfer is not prima facie proof of a defendant's right to transfer. See Rosales v. H.E. Butt Grocery Company, supra; TEX.R.CIV.P. 87(2)(a).

However, it has been held that, if the plaintiff brings its lawsuit in an admittedly impermissible county and a defendant seeks a transfer to a proper county, the plaintiff waives his venue selection option and the suit is transferred. Maranatha Temple, Inc. v. Enterprise Products Co., supra at 741. Further, it has recently been held that, although a plaintiff's first choice of venue might be in a permissible county, that choice cannot withstand an attack based upon a mandatory venue provision. Wichita County, Texas v. Hart, supra.

While we believe that the same result should be obtained now as under the former practice when a plaintiff voluntarily nonsuits before a pending motion to transfer is determined; we also believe it to be more appropriate to look upon the matter not as if the plaintiff has waived the right to make the first choice. The plaintiff has made the first choice, and there can be only one first choice. Because a case will not be transferred from a proper county, a plaintiff who initially and rightfully chooses a proper county in which to file the lawsuit has been accorded the right to select the situs of its suit. The plaintiff who makes the choice and then voluntarily nonsuits the case should not be allowed to then make a second choice and perhaps a third choice or more by utilizing repeated nonsuits. To take any other posture would be to promote rather than prevent the very type of legal "gamesmanship" sought to be prevented under the old venue law; the goal remains as noble under the current venue practice.

The cases instruct us as to the sound reasoning behind the result under the former venue...