Marshall v. Mahaffey

• Decision Date: 27 August 1998
• Docket Number: No. 09-96-331,09-96-331
• Citation: 974 S.W.2d 942
• Parties: R.T. MARSHALL, Individually and as Trustee, R.T. Marshall Co., Inc., R.T. Marshall Property Management Inc., R.T. Marshall Realty, and Felix Kelley, Appellants, v. John MAHAFFEY and Denise Mahaffey, individually and as beneficiaries of the John D. Mahaffey Defined Contribution Pension Plan a/k/a John D. Mahaffey Defined Pension, Appellees. CV.
• Court: Texas Court of Appeals

Page 942

974 S.W.2d 942

R.T. MARSHALL, Individually and as Trustee, R.T. Marshall Co., Inc., R.T. Marshall Property Management Inc. R.T. Marshall Realty, and Felix Kelley, Appellants, v. John MAHAFFEY and Denise Mahaffey, individually and as beneficiaries of the John D. Mahaffey Defined Contribution Pension Plan a/k/a John D Mahaffey Defined Pension, Appellees.

No. 09-96-331 CV.

Court of Appeals of Texas Beaumont.

Aug. 27, 1998.

Published in Part Pursuant to Tex.

R. App. P. 90.

Rehearing Overruled Sept. 24, 1998.

Tom Alexander, Tom Alexander & Associates, Andrew C. Brown, Felix Kelley, Houston, for appellants.

John Milutin, Milutin & Associates, Sugar Land, for appellees.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

BURGESS, Justice.

PART I

John and Denise Mahaffey brought suit against R.T. Marshall, Individually and as Trustee, R.T. Marshall Co., Inc., R.T. Marshall Property Management, Inc., R.T. Marshall Realty (collectively Marshall), Karen Flores, Felix Kelley and Gene Courtade seeking, inter alia, actual damages, exemplary damages, attorneys' fees, costs, and equitable relief. The suit alleged numerous causes of action, including breach of fiduciary duty, fraud, conversion, theft, embezzlement, unjust enrichment, slander, DTPA violations, breach of contract, negligence, and gross negligence. The trial court rendered judgment for the Mahaffeys. Marshall and Kelley appeal that judgment. ¹

John Mahaffey, a professional golfer, had a twenty-five year business relationship with Marshall, his financial manager. Courtade, who was non-suited without prejudice, was Marshall's accountant. Kelley practiced law and maintained an office within the offices of Marshall. Kelley advised Marshall on legal matters and represented John in his divorce from Susie Mahaffey, his second wife.

VENUE

Marshall's first point of error claims the court erred in ruling on the Motion to Transfer Venue without notice or a hearing. Point of error two contends the court erred in overruling the Motion to Transfer Venue because mandatory venue lay in Harris County.

Kelley's Motion to Transfer Venue

Although Kelley adopts Marshall's points of error one and two relating to venue, we overrule the Kelley points for failure to properly preserve appellate error. Kelley joined the first motion to transfer venue but not the amended motion. Kelley also filed a single motion to transfer which was denied without hearing by a written order signed three days after the motion was filed. Kelley never objected to the court's order and never secured a ruling on mandatory venue. Therefore, we overrule Kelley's points of error one and two.

Preservation of Error

The Mahaffeys argue Marshall waived any right to complain of venue by failing to obtain a hearing on the amended motion to transfer venue and in failing to move for continuance at the time of trial. We disagree.

Service of process was requested on each of the defendants at 3100 Richmond, Suite 500, Houston, Texas 77098. The Mahaffeys are residents of Montgomery County, Texas. The lawsuit was filed on January 2, 1996, in Montgomery County. On January 26, 1996, Courtade filed his Motion to Transfer Venue concurrently with his Original Answer. On January 29, 1996, Kelley filed his Motion to Transfer Venue with Original Answer subject to such motion. On January 29, 1996, a pleading was filed, titled, "DEFENDANTS, R.T. MARSHALL, R.T. MARSHALL CO., INC., FELIX KELLEY, AND GENE COURTADE'S MOTION TO TRANSFER VENUE TO HARRIS COUNTY TEXAS." Also on January 29, 1996, all defendants in the case at that time filed in one instrument, a general denial to plaintiffs's pleadings. On January 29, 1996, there was a written request for a hearing on the Motion to Transfer Venue at the court's earliest convenience on or after March 15, 1996.

On February 26, 1996, R.T. Marshall, R.T. Marshall Co., Inc., and R.T. Marshall Trustee, filed an additional Motion to Transfer Venue to Harris County, Texas, setting out, among other things, that "[a]ll the property including the real estate made the basis of this suit is located in Harris County, Texas, specifically at 3100 Richmond Avenue, Houston, Harris County, Texas." The motion contended that no exception exists as to mandatory venue which would permit venue in any county other than Harris County, Texas. The February 22, 1996, transmittal letter for this motion again asked that the motion be set for a hearing at the court's earliest convenience on or after March 15, 1996. On April 23, 1996, Marshall acknowledged a hearing had been set on Courtade's Motion to Transfer Venue and requested the hearing be reset to sometime during the last three weeks of May.

On June 19, 1996, a sixth amended petition was filed naming R.T. Marshall, R.T. Marshall, Trustee, R.T. Marshall Co., Inc., R.T. Marshall Property Management Inc., R.T. Marshall Realty, Karen Flores, Felix Kelley, and Gene Courtade as defendants. On this same date, a hearing was held on certain motions filed by the Mahaffeys. During this hearing, Marshall again requested a setting on the motion to transfer venue. The trial proceeded to finality without a hearing on Marshall's motion to transfer venue.

It is clear that Marshall persistently and continuously urged the court to provide a hearing on the motion to transfer venue. Marshall took every action necessary to obtain a hearing on the motion to transfer venue. It is not the duty of a party or counsel to "demand" that the Court comply with the appropriate rules. In Glover v. Moser, 930 S.W.2d 940, 944 (Tex.App.--Beaumont 1996, writ denied), this Court discussed discretionary limitations upon trial courts in matters concerning venue. Though TEX.R.CIV.P. 84 provides a trial court discretion as to the order of hearing certain matters, excepted from such discretion are matters relating to special appearance and motions to transfer venue. TEX.R.CIV.P. 87(1) acts as a non-discretionary limitation on a trial court's consideration of venue matters. The rule requires that a trial court act "promptly" in these matters. Though often and repeatedly requested by Marshall, the court never set or heard the venue motion.

In this case, Marshall adequately and properly met the procedural requirements of Rule 87 by requesting a setting on the hearing. Marshall met the procedural requirement of TEX.R.APP.P. 52(a) by objecting on the record. Since the trial court did rule on Marshall's motion, albeit without a hearing, and denied the motion, the merits of the venue issue are properly before this Court. ²

The Mahaffeys further contend Marshall failed to preserve error by not moving for a continuance, citing Cliff Jones, Inc. v. Ledbetter, 896 S.W.2d 417 (Tex.App.--Houston [1st Dist.] 1995, no writ), Gentry v. Tucker, 891 S.W.2d 766 (Tex.App.--Texarkana 1995, no writ), and Gonzalez v. Nielson, 770 S.W.2d 99 (Tex.App.--Corpus Christi 1989, writ denied), as authority for this proposition. Nielson is distinguishable because the party in that case failed both to request a setting and to move for continuance. In Tucker, no statement of facts was filed and the appealing movant did not demonstrate he had objected to trial on the merits without first requesting a ruling on the motion to transfer. Ledbetter is distinguishable because the trial court never ruled on the motion to transfer venue, and in our case the trial court did rule on the motion. In this instance, Marshall was not required to move for a continuance to preserve error on the issue of venue.

Standard of Review

A statutory standard of review applies to the issue of whether a trial court errs in overruling a motion to transfer venue. "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. In determining whether venue was or was not proper, the appellate court shall consider the entire record, including the trial on the merits." TEX.CIV.PRAC. & REM.CODE ANN. § 15.064(b) (Vernon 1986). There is no factual sufficiency review of the venue ruling. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex.1993). "[I]f there is any probative evidence in the entire record, including trial on the merits, that venue was proper in the county where judgment was rendered, the appellate court must uphold the trial court's determination." Id.

Mandatory Venue--Land

The Mahaffeys argue that Marshall failed to specifically plead mandatory venue as required by TEX.R.CIV.P. 86(3)(b) ("Mandatory venue of the action in another county is prescribed by one or more specific statutory provisions which shall be clearly designated or indicated."). Marshall's motion to transfer venue states: "All the property including the real estate made the basis of this suit is located in Harris County, Texas...." TEX.CIV.PRAC. & REM.CODE ANN. § 15.011 (Vernon Supp.1998) provides: "Actions for recovery of real property or an estate or interest in real property, for partition of real property, to remove encumbrances from the title to real property, for recovery of damages to real property, or to quiet title to real property shall be brought in the county in which all or part of the property is located." Marshall met the pleading burden.

The Mahaffeys argue § 15.011 is inapplicable because the gravamen of Marshall's lawsuit was money damages, not recovery of Harris County property. They cite Stiba v. Bowers, 756 S.W.2d 835 (Tex.App.--Corpus Christi 1988, no writ), holding the dominant purpose of the suit determines venue. Stiba was decided before the enactment of § 15.004 which provides:

In a suit in which a plaintiff properly joins two or more claims or causes of action arising from the same transaction, occurrence, or series of transactions or occurrences, and one of the claims or causes of action is governed by the mandatory venue provisions of Subchapter B, the suit shall be brought in the county required by the mandatory venue provision.

TEX.CIV.PRAC. & REM.CODE ANN. § 15.004 ...