Venue

Question 1

Exceptions to challenge venue with

Answer 1

• Motion to transfer based on Mandatory venue
• Motion to transfer for convenience and justice
• Motion to transfer based on improper joinder
• Motion to change venue based on unfair forum (rules based)

Question 2

Venue General Rule

Answer 2

• Unless a more specific provision applies, all lawsuits shall be brought:
  
  1. in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; OR
  2. in the county of ∆’s residence at the time the cause of action accrued if defendant is a natural person; OR
  3. in the county of the ∆’s principal office in this state, if the ∆ is not a natural person; OR
  4. if (1), (2), and (3) do not apply, in the county in which the π resided at the time of the accrual of the cause of action.

Question 3

Defendant’s Residence (individuals)

Answer 3

• “Residence” is established if a person has
  
  • a fixed place of abode
  • occupied or intended to be occupied consistently over a period of time
  • permanently rather than temporarily.
    
    • A ∆ can have more than one “residence”
    • But particularly relevant is “residence” when the COA accrued.
    • A permanent residence is a domicile.
    • The issue of where the π lived is not really tried anymore. The π offers prima facie evidence of his residence. This is about impossible to rebut, even if you are able to present conflicting evidence.

Question 4

Residence for Corporations

Answer 4

Principle office location

• There can be more than one “principle office” of a corporation w/in a given ST.
• The “decision makers” who conduct the “daily affairs” of the company are officials who run the company day to day,
• A mere agent or representative is not a “decision maker” nor is a principle office one where only decision typical of an agency or representative are made,
• A principle office is not an office clearly subordinate to and controlled by another TX office.
  
  • Cts must look at the corp.’s structure to determine principal office(s). The titles of the company officials in a particular office are not as informative as a description of their responsibility & authority, relative to other company officials w/in the ST.
  • A party cannot prove a prima facie case that a county has a principal office w/o evidence of the corporate structure & the authority of the officers in the county of suit as compared w/the remainder of the ST.

Question 5

Where a “substantial part” of the claim occurred

Answer 5

Use common sense, this is a fact question

Question 6

Exception: Other Permissive Venues based on the type of case (Probate)

Answer 6

In a suit a/g an executor, venue is permissive in the cty where the estate is being probated, or where a “substantial part” of the events occurred.

Question 7

Exception: Other Permissive Venues based on the type of case (Insurance)

Answer 7

• County in which the insured property was situated
• County in which the company’s principal office is located
• County in which loss occurred or
• County in which the (π) policyholder or beneficiary resided at the time the cause of action accrued

Question 8

Exception: Other Permissive Venues based on the type of case (Breach of warranty/products liability)

Answer 8

• County in which all or a substantial part of the events or omissions giving rise to the claim occurred
• County in which manufacturer has its principal office
• County in which plaintiff resided at time cause of action accrued

Question 9

Exception: Other Permissive Venues based on the type of case (Contracts in writing)

Answer 9

• County in which obligation is to be performed
• County in which Defendant signed the contract or county in which Defendant resides when the action is commenced

Question 10

Exception: Other Permissive Venues based on the type of case (transient person)

Answer 10

A transient person may be sued in any county in which he may be found

Question 11

Exception: Other Permissive Venues based on the type of case (other/catchall)

Answer 11

An action governed by any other statute giving permissive venue may be brought in the county allowed by that statute

Question 12

Super Exception: Mandatory Venues

Answer 12

If a mandatory venue exception applies to a case, it does not mean that the case must be filed there initially. Properly asserted mandatory venues simply trump permissive venues on a challenge.

• Certain land-related actions, such as title disputes or suits for recovery of damages to real property should be brought where the property is located.
• Same is true for LL-tenant disputes.
• Actions to stay proceedings in a suit (injunction a/g a suit) shall be brought in the county in which the suit is pending
• Actions for injunction a/g the execution of a judgment based on invalidity are to be brought in the cty in which the judgment was rendered.
• Travis cty is the mandatory venue for mandamus actions a/g the ST gov. dept. heads, while actions a/g a county are to be brought in that cty.
• Libel, slander, or invasion of privacy suits and prison inmate suites also have specific provisions (mostly related to accrual or residence of the parties)
• Catch all: says that if another statute says there is mandatory venue, that controls
• Venue agreements: These are only enforceable in “major transactions.” Major transactions are those w/a written agm, and consideration is over $1million.
  
  • The agm can either specify a required venue, or prohibit a specific one
  • MT does not include a transaction entered into primarily for personal, family, or household purposes, or to settle a personal injury or wrongful death claim, without regard to the aggregate value.

Question 13

Permissive vs Mandatory

Answer 13

The π can file anywhere he wants. BUT if the π’s chosen venue rests on a permissive venue & the ∆ files a meritorious motion to transfer based on a mandatory venue, the TC must grant the motion.

Question 14

Which cause of action controls:

Answer 14

A mandatory venue provision that controls one claim or cause of action, controls all claims or causes of action joined in any lawsuit that arises from the same transaction, occurrence, or series of transactions or occurrences.

Question 15

Forum vs. Venue

Answer 15

Forum refers to a sovereign or ST. Venue refers to a county.

• Notice that venue selection clauses are different from forum selection clauses
• Forum selection clauses have always been presumptively valid, but only until fairly recently were venue selection clauses held to be valid.

Question 16

Venue in Cases with Multiple Parties or Claims (joinder) - Plaintiffs

Answer 16

• All πs in a case must independently establish proper venue
  
  • This prevents multiple πs from joining & filing suits in far-flung counties that they have nothing to do with.
• Exception: πs who cannot independently establish venue can join an ongoing lawsuit if they can establish these 4 criteria:
  
  • Joinder is proper under TRCP
  • Maintaining venue as to that π does not unfairly prejudice another party to the suit
  • there is an Essential need to have that π’s claim tried in county in which suit is pending
  • County is a fair and convenient venue for that π and all other persons against whom the suit is brought

Question 17

Venue in Cases with Multiple Parties or Claims (joinder) - Defendant

Answer 17

• A π can join multiple ∆s w/o independently proving venue for each.
• If venue is proper against one ∆ (I.e. the ∆’s principle office is in the county of suit), venue is proper over all ∆s properly joined in all claims or actions arising out of the same transaction, occurrence, or series of transactions or occurrences
  
  • This statute thus contains an incentive for πs to join marginal ∆s that can establish proper venue for the entire case.

Question 18

Exception: Motion to transfer for Convenience and Justice

Answer 18

• A court may transfer an action from a county of proper venue to any other county of proper venue on motion of a ∆ filed with or b/f the answer, where the court finds:
  
  • maintenance of the action in the county of suit would work an injustice to the movant considering the movant’s economic and personal hardship; &
  • the balance of interests of all the parties predominates in favor of the action being brought in the other county; &
  • transference of the action would not work an injustice to any other party.
• A court’s ruling or decision to grant or deny a transfer under this rule is not grounds for appeal or mandamus and is not reversible error.

Question 19

Exception: Motion to transfer based on improper joinder (15.003)

Answer 19

In a suit where more than one π is joined, each π must, independently of any other π, establish proper venue. Any person who is unable to establish proper venue may not join or maintain venue for a suit as a π unless the person, independently of any other π establishes that:

• joinder or intervention in the suit is proper under the TRCP; &
• maintaining venue in the county of suit does not unfairly prejudice another party to the suit; &
• there is an essential need to have the person’s claim tried in the county in which the suit is pending; &
• the county in which the suit is pending is a fair and convenient venue for the person seeking to join in or maintain venue for the suit and against whom the suit is brought.
• This § places the burden on π in the first instance to offer prima facie proof of the four elements
• It also contemplates the admission of some evidence that would not normally be admissible in a venue hearing. The TC may allow the parties to offer oral testimony if the ct finds it useful. Moreover, a TC may order limited discovery on the joinder elements, allowing the parties to fully develop the elements.
• A TCs decision to limit the scope of evidence is an abuse of discretion only if a party is materially prejudiced by its inability to offer further proof.
• Only one case has found an essential need to exist.

Question 20

Exception: Motions to Change Venue Because of Unfair Forum (TRCP 257)

Answer 20

Motion claiming an unfair forum must be supported by movant’s own affidavit and by affidavits of at least 3 other credible witnesses who are residents of that county. A motion can be granted if:

1. There exists so great a prejudice that ∆ can’t get a fair & impartial trial; OR
2. There exists a combination against ∆ instigated by influential persons by reason of which ∆ cannot expect a fair and impartial trial; OR
3. Impartial trial cannot be had in the county; OR
4. For other sufficient cause to be determined by the court
   
   • 1-3 basically all mean the same thing, #4 is a catchall other causes
   • You could show prejudice by referring to the amount (time) of local news coverage about the matter/case.

• If there is no response from π, the case is automatically transferred.
• (TRCP 258) Where a motion to transfer venue is duly made, it shall be granted, unless the credibility of the affidavits are attacked by the affidavit of a credible person; when thus attacked, the issue thus formed shall be tried by the judge; and the application either granted or refused.
• Reasonable discovery in support of, or in opposition to, the application shall be permitted, and such discovery as is relevant, including deposition testimony on file, may be attached to, or incorporated by reference in, the affidavit of a party, a witness, or an attorney who has knowledge of such discovery.
  
  • Case law is unsettled as to whether this standard includes the right to present live oral testimony at a hearing to transfer based on impartial forum.
• The procedure for this type of challenge to venue is slightly different. While it presumably is subject to the same waver requirements, it is also possible that a party could be unduly prejudiced, after an answer and discovery, but before trial, making a transfer appropriate at that time.

Question 21

Standard Procedure for challenging venue - Trial Court Timeline

Answer 21

• π makes the initial venue choice when he files suit. (π should plead venue facts in the original petition reflecting that venue is proper in the county of suit)
• ∆ may challenge venue with a timely-filed motion to transfer
  
  • Time to file: An objection to improper venue is waived if not made by written motion, filed prior to or concurrently with any other plea, pleading or motion except a special appearance.
    
    • Filing an answer before a motion to transfer will waive venue
    • File an answer subject to the motion to transfer also prevents a default judgment if the motion is denied
    • Discovery is excepted; a party can proceed w/discovery and not waive venue.
  • Content of the motion: Motion should request that the case be transferred to a specific proper county, and allege proper facts for that county; it should also allege that transfer is required because
    
    • the county of suit is not a proper county or
    • because mandatory venue is required in another county
• Response: a response to a motion to transfer venue is not required.
• Requesting a hearing on the motion to transfer
  
  • The movant has the additional duty to request a setting/hearing on the motion to transfer.
    
    • The ∆ may also waive its ability to challenge venue if it files a motion to transfer, but allows the case to proceed to trial w/o requesting a hearing on the issue by the TC.
    • The ∆ therefore preserves its right to challenge venue by requesting a hearing.
• A venue hearing is held to rule on the motion to transfer
  
  • The burden of Proof
    
    • Each party has the burden of establishing venue. All venue facts as alleged, are taken as true unless specifically denied by the other party.
    • When a venue fact is specifically denied, the party pleading the venue fact must make prima facie proof of that venue fact
    • Prima facie proof is made when the venue facts are properly pleaded and an affidavit (with any necessary attachments) is filed fully.
  • The Venue Hearing is held
    
    • (15.063) The court shall transfer an action to another country of proper venue if:
      
      • The action in which the action is pending is not a proper county;
      • Impartial trial cannot be had in the county where action is pending;
      • Written consent of the parties to transfer is filed at any time b/f trial.
    • Court considers the motion, any response, and affidavits to determine whether the parties have satisfied their burdens of proof. No oral testimony may be considered and the court may not consider the credibility of witnesses.
      
      • Oral argument may be allowed in some cases if the transfer is based on unfair forum. Don’t bank on it though.
    • Transfer determined by looking at proof
      
      • If π satisfies prima facie burden, no transfer
      • If ∆ satisfies prima facie proof burden, of mandatory county, suit is transferred to that county
      • If π fails to make prima facie proof, case is transferred, provided ∆ has satisfied its burden of showing that the county to which it seeks transfer is a proper county
  • When venue is based upon where the cause of action arose, proof of the merits of the cause of action is not required
    
    • ∆ can claim that the events or omissions that occurred in the county of suit are not a “substantial part” of those giving rise to plaintiff’s claim, and asserting that “a substantial part” occurred elsewhere
    • ∆ can challenge plaintiff’s assertion that the events occurred in a particular county, asserting that they in fact occurred in a different county

Question 22

No multiple party waivers

Answer 22

One ∆’s “action or omission” does not “impair or diminish the right of any other party to properly challenge venue.” Thus if one ∆ fails to properly challenge venue, that does not waive it for everybody.

Question 23

Effect of a sneaky nonsuit

Answer 23

• If π non-suits its case after ∆ files a motion to transfer venue, but before the motion is decided, venue is determined by reviewing the state of the record at the time of the nonsuit
• If π non-suits its case after the TC rules on the motion, venue is conclusively decided as between those parties and claims for any future litigation.

Question 24

Effect of a Hearing on venue

Answer 24

• Once a motion to transfer is granted or denied, no further motions to transfer can be considered. VENUE HAS BEEN SET FOR THE DURATION OF THE CASE.
  
  • Prevents late-added ∆s from having their motions to transfer considered unless the motion is on the grounds of unfair forum or on the ground of a mandatory exception unavailable to other movants
  • Late-added ∆s with other venue claims are still permitted to file a motion to transfer in order to preserve grounds for reversal on appeal, but they cant have their motion considered during the pendency of the suit.

Question 25

Interlocutory appeal

Answer 25

• There is no interlocutory appeal from a failed challenge to venue – ∆ can only appeal after the trial.
  
  • If venue was wrong and the case was tried there, the court will transfer the case to the proper court and try it again
  • A case tried in the wrong venue is not harmless error; it is reversible error.
  • Interlocutory appeal based on improper joinder
    
    • TCPRC § 15.003
    • Interlocutory review is however available for issues concerning improper proper joinder of additional plaintiffs who could not otherwise independently establish venue

Question 26

General Mandamus Relief

Answer 26

• Venue determinations as a rule are not reviewable by general mandamus BUT
• Truly exceptional circumstances might exist that would render an appellate remedy inadequate. We did not have an example of such circumstances.

Question 27

Statutory Mandamus Relief – For Mandatory Venue

Answer 27

• A party may apply for a writ of mandamus with an appellate court to enforce mandatory venue provisions, but it must be filed before the later of
  
  • 90th day before the trial starts or
  • 10th day after the date the party receives notice of the trial setting
• Mandamus will not issue unless
  
  • Trial court has committed a clear abuse of discretion
  • For which appeal is not an adequate remedy
    
    • An appellate remedy is not inadequate merely b/c in involves more expense or delay than obtaining a writ, but extraordinary relief can be warranted when a TC subjects taxpayers, ∆s, and all of the states DCs to meaningless proceedings and trials.
    • Mandamus has been issued where a ct has not followed the rules, i.e. if there is a mandatory venue and the TC refuses to transfer.

Question 28

Convenience and Justice Review

Answer 28

• A TC’s decision to transfer a case pursuant to a convenience and justice motion is non-reviewable by the appellate court. It is final.
• To be exempt from appellate review venue order must expressly state that the cause is or is not transferred for the convenience of the parties

Question 29

What if there is more than one mandatory venue provision? What if there is more than one, and the π filed the case in a permissive venue? How do you choose b/w two proper mandatory venues?

Answer 29

The ∆ gets to choose

Question 30

What if intervention was improper because of venue?

Answer 30

Affected party would file a motion to strike the intervention.