Rosales v. H.E. Butt Grocery Co.

• Decision Date: 23 August 1995
• Docket Number: No. 04-94-00284-CV,04-94-00284-CV
• Citation: 905 S.W.2d 745
• Parties: Rolando ROSALES and Esmeralda M. Cruz, Appellants, v. H.E. BUTT GROCERY COMPANY; Harvey Mabry; and Eva Wallace, Appellees.
• Court: Texas Court of Appeals

Page 745

905 S.W.2d 745

Rolando ROSALES and Esmeralda M. Cruz, Appellants, v. H.E. BUTT GROCERY COMPANY; Harvey Mabry; and Eva Wallace, Appellees.

No. 04-94-00284-CV.

Court of Appeals of Texas San Antonio.

Aug. 23, 1995.

Rehearing Overruled Aug. 23, 1995.

Rene R. Barrientos, Law Offices of Pat Maloney, P.C., San Antonio and Timothy Patton, Pozza & Patton, San Antonio, for appellants.

W. Wendell Hall and Xavier Rodriguez, Fulbright & Jaworski, San Antonio, for appellees.

Before CHAPA, C.J., and STONE and GREEN, JJ.

OPINION

CHAPA, Chief Justice.

ON APPELLEES' MOTION FOR REHEARING AND MOTION FOR REHEARING EN BANC

Appellees' motion for rehearing is denied, the opinion of this court issued on May 10, 1995, is withdrawn, and this opinion is substituted therefore.

Appellants Rolando Rosales and Esmeralda Cruz appeal a summary judgment granted in favor of appellees, H.E. Butt Grocery Company, Harvey Mabry, and Eva Wallace. Appellants originally filed suit in Maverick County, alleging causes of action of defamation, negligent and intentional infliction of emotional distress, and invasion of privacy. The trial court granted appellees' motion to transfer venue to Bexar County, where this summary judgment was granted against appellants.

The dispositive issue before this court is whether the trial court erred in granting the motion to transfer venue. TEX.R.APP.P. 90.

In 1983, the venue laws of this state were significantly changed. See Dan R. Price, New Texas Venue Statute: Legislative History, 15 St. Mary's L.J. 855, 881 (1984). "The new venue statute favors the plaintiff's right to maintain venue in the county in which the action was brought, rather than the defendant's right to transfer venue to its county of residence." Tenneco, Inc. v. Salyer, 739 S.W.2d 448, 449 (Tex.App.--Corpus Christi 1987, orig. proceeding).

In spite of this revision in the venue laws, appellate courts continue to struggle to understand the dictates of the legislature. See, e.g., Hendrick v. McMorrow, 852 S.W.2d 22, 24 (Tex.App.--Beaumont 1993, no writ) (statute is subject of "disparate" interpretation); Kansas City S. Ry. Co. v. Carter, 778 S.W.2d 911, 915 (Tex.App.--Texarkana 1989, writ denied) (statutory procedure "unfair" to trial judge and should be changed). Nonetheless, we must attempt to apply the appropriate standard of review in each case.

In Ruiz v. Conoco, Inc., 868 S.W.2d 752 (Tex.1993), the Texas Supreme Court recognized that the procedure for appellate review mandated by section 15.064(b) of the Texas Civil Practice and Remedies Code ¹ "is fundamentally flawed because it allows appellate review of venue on a basis different from that on which it was decided." Id. at 757. Apparently concerned with this "fundamental flaw," the supreme court thereafter in Wilson v. Texas Parks & Wildlife Dep't, 886 S.W.2d 259 (Tex.1994), analyzed the venue statute and established the current standard of review, which "strikes a balance between the competing interests of the plaintiff and the defendant." Id. at 262. The court stated:

Venue selection presupposes that the parties to the lawsuit have choices and preferences about where their case will be tried. Venue may be proper in many counties under general, mandatory, or permissive venue rules. The plaintiff is given the first choice in the filing of the lawsuit. If the plaintiff's venue choice is not properly challenged through a motion to transfer venue, the propriety of venue is fixed in the county chosen by the plaintiff. If a defendant objects to the plaintiff's venue choice and properly challenges that choice through a motion to transfer venue, the question of proper venue is raised. The burden is on the plaintiff to prove that venue is maintainable in the county of suit. If the plaintiff fails to meet this burden, the trial court must transfer the lawsuit to another specified county of proper venue [if the defendant then proves that venue is maintainable in the county to which transfer is sought]. If the plaintiff meets the burden, the trial court must maintain the lawsuit in the county where it was filed. TEX.R.CIV.P. 87-3(c) ("If a claimant has adequately pleaded and made prima facia [sic] proof that venue is proper in the county of suit ... then the cause shall not be transferred but shall be retained in the county of suit....").

Together, Rule 87-3(c) and section 15.063(1) require that a lawsuit pleaded and proved to be filed in a county of proper venue may not be transferred. Therefore, if the plaintiff chooses a county of proper venue, and this is supported by proof as required by Rule 87 [prima facie proof], no other county can be a proper venue in that case. This rule gives effect to the plaintiff's right to select a proper venue.

....

Under the rule announced today, if Travis County, the venue chosen by Plaintiffs, was a county of proper venue, then Blanco County cannot be a county of proper venue as a matter of law. We review the entire record, including the trial on the merits, to determine whether there is any probative evidence that venue was proper in Travis County.

Wilson, 886 S.W.2d at 260-262 (citations and footnotes omitted).

Appellant Rosales, plaintiff below, chose to file his claim in Maverick County as the county of his residence. ² The appellees, defendants below, challenged the venue. This required appellant Rosales to present "prima facie proof" that Maverick County was a county of his residence by "any probative evidence." Wilson, 886 S.W.2d at 262; see TEX.R.CIV.P. 87-3(c); TEX.CIV.PRAC. & REM.CODE ANN. § 15.063(1) (Vernon 1986). The venue statute provides that venue shall be determined by the trial court from the pleadings and affidavits. TEX.CIV.PRAC. & REM.CODE ANN. § 15.064(a) (Vernon 1986). When deciding a motion to transfer venue, the trial court must take as true those facts which the party with the burden of proof has presented by prima facie proof. TEX.R.CIV.P. 87-3(a); Ruiz v. Conoco, Inc., 868 S.W.2d at 757-58. If the record before us reflects that appellant Rosales carried his burden, "no other county can be a proper venue" as a matter of law. Wilson, 886 S.W.2d at 261.

In Mills v. Bartlett, 377 S.W.2d 636 (Tex.1964), the court stated the following regarding "residence":

The term "residence" is an elastic one and is extremely difficult to define. The meaning that must be given to it depends upon the circumstances surrounding the person involved and largely depends upon the present intention of the individual. Volition, intention and action are all elements to be considered in determining where a person resides and such elements are equally pertinent in denoting the permanent residence or domicile.

Id. at 637 (citations omitted). Moreover, it is well-settled law in Texas that for venue purposes a person may have a residence in two or more counties. Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136, 138-39 (1951); Plains Ins. Co. v. Acuna, 614 S.W.2d 885, 887 (Tex.Civ.App.--Eastland 1981, no writ); Kerr v. Davenport, 233 S.W.2d 197 (Tex.Civ.App.--San Antonio 1950, no writ). Thus, it is possible under Texas venue law for Rosales to have a residence in Maverick County along with a residence in Bexar County, as alleged by appellees.

Because appellees properly challenged Rosales's venue choice, he was required to plead and make prima facie proof that his venue selection was proper. "A prima facie case represents the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true. The party with the burden of proof must produce at least this much evidence to avoid a finding that the allegation is not true as a matter of law." Williams v. State, 767 S.W.2d 872, 874 (Tex.App.--Dallas 1989, pet. ref'd). In discussing prima facie evidence, the Texas Supreme Court opined:

The term "prima facie evidence" is ambiguous at best. As Professor Wigmore points out, it sometimes is used "as equivalent to the notion of a presumption," i.e., it entitles the proponent to an instructed verdict on the issue in the absence of evidence to the contrary. The term is also used to mean that the proponent has produced sufficient evidence to go to the trier of fact on the issue. See 9 Wigmore on Evidence, 3rd ed. 1940, § 2494; 1 McCormick and Ray, Texas Law of Evidence, 2nd ed. 1956, § 55; Dodson v. Watson, 110 Tex. 355, 220 S.W. 771 (1920).

Coward v. Gateway Nat'l Bank, 525 S.W.2d 857, 859 (Tex.1975).

To determine whether appellant Rosales carried his burden of presenting prima facie proof of his Maverick County residence, we must review the entire record before us. TEX.CIV.PRAC. & REM.CODE ANN. § 15.064(b) (Vernon 1986). The record reflects sworn evidence from appellant Rolando Rosales (1) that he was born in Maverick County and thereafter attended primary and secondary schools in Maverick County and graduated from high school in Maverick County; (2) that he attended college away from Maverick County only because there was no college in Maverick County; (3) that he grew up at 350 Concho St., Eagle Pass, Maverick County, was married in Maverick County, and baptized all his children in Maverick County; (4) that he has owned by inheritance a share of the 350 Concho St. home since 1981 when his mother died and has continued to help pay the bills connected with the home; (5) that 350 Concho St. has always been his permanent residence which he has occupied for substantial periods of times in the past and intends to continue to occupy in the future; (6) that he has voted and is registered to vote in Maverick County; (7) that his driver's license and social security card show his residence as 350 Concho St., Maverick County; (8) that he had to obtain employment away from Maverick County because unemployment is at forty percent in Maverick County; (9) that had H.E.B. offered to transfer him to one of its stores in Maverick County, he would have welcomed the offer; (10) that he has continuously returned to his residence in ...