Morris v. Texas Parks and Wildlife Dept.

• Decision Date: 24 May 2007
• Docket Number: No. 13-05-647-CV.,13-05-647-CV.
• Citation: 226 S.W.3d 720
• Parties: Danny J. MORRIS, Lucia R. Morris, and as Next Friend for M.M., a Minor Child, Appellants, v. TEXAS PARKS AND WILDLIFE DEPARTMENT and Sandra Carson, Appellees.
• Court: Texas Court of Appeals

226 S.W.3d 720

Danny J. MORRIS, Lucia R. Morris, and as Next Friend for M.M., a Minor Child, Appellants, v. TEXAS PARKS AND WILDLIFE DEPARTMENT and Sandra Carson, Appellees.

No. 13-05-647-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

May 24, 2007.

Arnold Gonzales, Jr., Corpus Christi, for appellants.

Robert F. Scheihing, Michelle Copeland, Adami, Goldman & Shuffield, Inc., San Antonio, Adam W. Aston, Austin, for appellees.

Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.

OPINION

Opinion by Justice RODRIGUEZ.

This appeal arises from (1) a motion to transfer venue and a plea to the jurisdiction granted in favor of appellee, Texas Parks and Wildlife Department (the Department), and (2) a motion for summary judgment granted in favor of appellee, Sandra Carson, against appellants, Danny J. Morris, Lucia R. Morris, and M.M., a minor child. By three issues, the Morrises contend that the Webb County trial court erred in granting the motion to transfer venue and that the Goliad County trial court erred in granting the plea to the jurisdiction and the motion for summary judgment. We affirm.

I. Background

On March 30, 2002, the Morrises arrived at Goliad State Park (the Park) in Goliad County, Texas. Shortly after arriving at the Park, M.M., a three-year-old child, fell into a campfire ring allegedly containing coals or ash from a previous fire.¹ M.M. suffered second- and third-degree burns requiring medical treatment.

On August 1, 2002, the Morrises brought suit in Webb County against the Department alleging common-law negligence. On October 18, 2002, the Webb County trial court granted the Department's motion to transfer venue to Goliad County. Guided by this Court's decision in State of Tex. Parks & Wildlife Dep't v. Morris, 129 S.W.3d 804, 807-10 (Tex.App.-Corpus Christi 2004, no pet.), the Morrises amended their petition on March 30, 2004, to include a gross negligence claim. In addition, on March 30, 2004, the last day of the two-year statute of limitations, see Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a) (Vernon Supp.2006), the Morrises named Carson as a defendant in the suit and asserted a claim of negligence against her. Carson, who was alleged to have been the last camper at the campsite in question, filed a motion for summary judgment. Additionally, in response to the Morrises' second amended petition, the Department filed a plea to the jurisdiction.

Following the filing of Carson's motion for summary judgment and the Department's plea to the jurisdiction, the Morrises filed their third amended petition developing their gross negligence claim against the Department and their negligence claim against Carson. They also responded to Carson's motion and the Department's plea, to which both Carson and the Department respectively replied. After hearing the plea to the jurisdiction and motion for summary judgment, the trial court granted both. This appeal ensued.

II. Transfer of Venue

By their first issue, the Morrises contend that the Webb County trial court erred in granting the Department's motion to transfer venue to Goliad County.

A. Standard of Review

To determine whether venue was proper, we consider the entire record. Tex. Civ. Prac. & Rem.Code Ann. § 15.064(b) (Vernon 2002). If there is any probative evidence in the record that venue was proper, we must uphold the trial court's determination on the matter of venue. See Bonham State Bank v. Beadle, 907 S.W.2d 465, 471 (Tex.1995).

B. Applicable Law

The venue provision of the Tort Claims Act (the Act) governing the Morrises' claims against the Department, a governmental entity, provides that "a suit under this chapter shall be brought in state court in the county in which the cause of action or a part of the cause of action arises." Tex. Civ. Prac. & Rem. Code § 101.102(a) (Vernon 2005). Additionally, it is settled Texas law that the plaintiff is typically given the first venue choice in the filing of a lawsuit. Tieuel v. S. Pac. Transp. Co., 654 S.W.2d 771, 775 (Tex.App.-Houston [14th Dist.] 1983, no writ). However, while plaintiffs are given the opportunity to file a suit in any county where venue is proper, transfer of the case to a county of proper venue is mandatory when the plaintiff cannot prove venue is proper in the county of suit. Wilson v. Tex. Parks & Wildlife Dept., 886 S.W.2d 259, 260 (Tex.1994) (citing Tieuel, 654 S.W.2d at 775 (providing that by filing suit in a county where venue is improper, the plaintiff waived the right to choose the county of suit)).

C. Analysis

The Morrises pleaded venue in Webb County under section 101 of the Texas Civil Practices and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 101.102(a) (Vernon 2005). In its motion to transfer venue, the Department agreed that the mandatory provision of section 101.102(a) controlled because the suit was for alleged personal injuries. However, it urged that venue was mandatory in Goliad County, not Webb County, because Goliad County is "the county in which the cause of action, if any, or a part thereof arose." See id. We agree.

Section 101.102(a) of the Act provides the following: "A suit under this chapter shall be brought in the county in which the cause of action or part of the cause of action arises." See id. In their original petition, the Morrises alleged that M.M.'s injuries occurred at the Park in Goliad County. In their response to the Department's motion to transfer venue, the Morrises added, for the first time, that M.M. received extensive medical and psychological treatment in Webb County. Based on this asserted fact, the Morrises argued in their response and now on appeal, that venue would have been proper in both Webb County and Goliad County because part of their damages arose and continue to arise in Webb County where M.M. later received medical attention and treatment. The Morrises argue that section 101.102(a) clearly contemplates alternative venue choices in theory since suit may be brought in a state court "in which the cause of action or part of the cause of action arises." Id.

In the present case, however, all of the acts giving rise to the Morrises' cause of action occurred in Goliad County. The medical treatment received by M.M. in Webb County, that appellant now contends proves their "elemental damages" necessary for a gross negligence claim,² involves the treatment of injuries that arose in Goliad County. While it is possible that evidence of damages or injuries that occurred in Goliad County, including the cost of treatment for those injuries, might be available in Webb County, that evidence does not encompass the "essential facts" giving rise to a cause of action or a part of a cause of action. See Krchnak v. Fulton, 759 S.W.2d 524, 526 (Tex.App.-Amarillo 1988), overruled in part on other grounds, Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex.2002) (providing that a cause of action "does not comprise every evidentiary fact, but does comprise every essential fact"); see also Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 24-25 (Tex.1994) (explaining that gross negligence is the breach of duty involving an extreme degree of risk, considering the probability and magnitude of the potential harm to others (an objective element) when the actor has actual awareness of the risk involved but nevertheless proceeds in conscious indifference to the rights, safety, or welfare of others (a subjective element)).

The Morrises rely on Wilson for the proposition that since they chose an apparently proper venue, there can be no other proper venue to which their case may be transferred. Wilson, 886 S.W.2d at 261. However, Wilson is distinguishable from the present case. The lawsuit in Wilson dealt with alleged wrongful deaths (drownings) that occurred in Blanco County, as a result of negligent Department early flood warning practices drawn up and circulated in Travis County and implemented in Blanco County. Id. at 260. The plaintiffs in Wilson were found to have had proper venue in Travis County, despite the fact that the drownings occurred in Blanco County, because there was "probative evidence that acts giving rise to the Plaintiffs' cause of action occurred in Travis County." Id. at 262. Appellant's reliance on Wilson is misplaced.

Examining the full record, we find no essential fact, or act, that took place in Webb County that would give rise to a cause of action or part of a cause of action. The Morrises did not choose a county of proper venue. There is probative evidence in the record that venue is proper in Goliad County. Therefore, we must uphold the trial court's determination on the matter of venue. We overrule the Morrises' first issue.³

III. The Department's Plea to the Jurisdiction

By their second issue, the Morrises contend that the trial court erred in granting the Department's plea to the jurisdiction because material jurisdictional fact issues remain.

A. Standard of Review

A plea to the jurisdiction is a dilatory plea, the purpose of which is to "defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). The plea challenges the trial court's jurisdiction over the subject matter of a pleaded cause of action. Morris, 129 S.W.3d at 807. Whether a trial court has subject matter jurisdiction is a question of law reviewed under the de novo standard. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004).

When a plea to the jurisdiction challenges the pleadings, we determine if the plaintiff has overcome the burden of alleging facts that affirmatively demonstrate the trial court's jurisdiction to hear the case. Id. (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993)). Rather than evaluating the claim's merits, we look to the pleader's intent and construe the pleadings liberally in favor of the plaintiff. Id.; Morris, 129 S.W.3d at 807. To the extent it is...