Summary
In McCaskill, the San Antonio court determined that it did not have jurisdiction under section 15.003 to consider an interlocutory appeal of an order denying a motion to transfer because “[i]t is clear from the motions to transfer venue that the appellants' complaints focused primarily on the choice of Maverick County as the county of venue and not on whether [plaintiffs] the Viescas could intervene or join the lawsuit as plaintiffs.” Harding Bars, LLC v. McCaskill, No. 04–11–00629–CV, 2012 Tex.App. LEXIS 799, at *7 (Tex.App.-San Antonio Feb. 1, 2012, no pet.).
Summary of this case from Shamoun & Norman, LLP v. Yarto International Group, LPOpinion
No. 04-11-00629-CV
02-01-2012
HARDING BARS, LLC d/b/a The Aquifer Bar; Ramsey-White Bars, LLC d/b/a Kennedy's Public House; and Robert Stinziano; Appellants v. Kaylie MCCASKILL; Martin Viesca and Sandra Viesca, as Legal Heirs and Personal Representatives of Karla Viesca, Deceased; Appellees
OPINION
From the 293rd Judicial District Court, Maverick County, Texas
Trial Court No. 11-01-26198-MCV
Honorable Cynthia L. Muniz, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
DISMISSED FOR LACK OF JURISDICTION
In an opinion and judgment dated December 14, 2011, we dismissed this appeal for want of jurisdiction. Two of the appellants filed motions for rehearing. We deny the appellants' motions; however, we withdraw our opinion and judgment of December 14, 2011, and issue this opinion and judgment in its place. This is an interlocutory appeal from a trial court's order denying appellants' motions to transfer venue. Appellees contend this appeal should be dismissed for lack of jurisdiction. We agree and dismiss the appeal for want of jurisdiction.
BACKGROUND
On October 17, 2010, Kaylie McCaskill was a passenger in an automobile driven by Robert Stinziano. According to McCaskill, Stinziano was intoxicated when he drove on the wrong side of the road and ran a red light, broadsiding a vehicle driven by Karla Viesca, the daughter of Martin and Sandra Viesca ("the Viescas"). The accident resulted in Karla's death and injuries to McCaskill. Prior to this, McCaskill asserts Stinziano was provided alcohol at the bars owned by Harding Bars, LLC and Ramsey-White Bars, LLC. The accident occurred in Bexar County, Texas.
McCaskill filed suit in Maverick County, Texas against Stinziano, the Viescas, Harding Bars, and Ramsey-White Bars. Her suit claimed negligence on the part of both Stinziano and Karla, but she asserted actions under the Dram Shop Act against Harding Bars and Ramsey-White Bars. At the time of the suit, the Viescas were the only defendants residing in Maverick County. Stinziano resided in Bexar County and Harding Bars' and Ramsey-White Bars' principal places of business were located in Bexar County. The Viescas filed an answer to this lawsuit. The other defendants, Stinziano, Harding Bars, and Ramsey-White Bars, each filed a motion to transfer venue to Bexar County. Subsequently, the Viescas filed a cross-claim against Stinziano, Harding Bars, and Ramsey-White Bars asserting a survival claim and a wrongful death claim. The trial court denied the motions to transfer venue to Bexar County.
DISCUSSION
On appeal, appellants assert the trial court erred in denying their motions to transfer venue from Maverick County to Bexar County. However, as a threshold issue, we must first determine whether this court's appellate jurisdiction is properly invoked. Appellees argue this appeal must be dismissed for lack of jurisdiction in accordance with section 15.064 of the Texas Civil Practice and Remedies Code ("the Code"). See TEX. CIV. PRAC. & REM. CODE ANN. § 15.064 (West 2002). In response, appellants argue this court has interlocutory jurisdiction pursuant to section 15.003(b) and (c) of the Code. See id. § 15.003(b)-(c) (West Supp. 2011).
Generally, interlocutory appeal is unavailable from a trial court's determination of a venue question. Id. § 15.064(a) ("The court shall determine venue questions from the pleadings and affidavits. No interlocutory appeal shall lie from the determination."). Consequently, a party normally must wait until a final judgment occurs to appeal an erroneous ruling regarding venue. Id. § 15.064(b); Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999); Elec. Data Sys. Corp. v. Pioneer Elecs. (USA) Inc., 68 S.W.3d 254, 257 (Tex. App.—Fort Worth 2002, no pet.).
On the other hand, when a case involves multiple plaintiffs, wherein plaintiffs are included by joinder, intervention, because the lawsuit was begun by more than one plaintiff, or otherwise, section 15.003 establishes a limited right of interlocutory appeal. TEX. CIV. PRAC. & REM. CODE § 15.003(b)-(c); Abel, 997 S.W.2d at 601; Elec. Data Sys. Corp., 68 S.W.3d at 257. This limited right of appeal applies only to a trial court's determination that a plaintiff may or may not intervene or join in the suit. Am. Home Prod. Corp. v. Clark, 38 S.W.3d 92, 96 (Tex. 2000); see also Elec. Data Sys. Corp., 68 S.W.3d at 258. Thus, if the trial court's order "necessarily determines an intervention or joinder issue under section 15.003(a), section 15.003(c) plainly allows for either party to contest that decision by taking an interlocutory appeal." Am. Home Prod., 38 S.W.3d at 96.
Here, appellants argue this court has jurisdiction to hear the interlocutory appeal because the Viescas were defendants in their representative capacities but were cross-claimants in their individual capacities. In other words, appellants argue the Viescas' cross-claim was in effect a "joinder" as a second set of "plaintiffs" in the original action because individual and representative capacities are separate and distinct. Appellants contend that an appearance in a suit in one capacity does not include an appearance in the other capacity unless both capacities are specifically named in the suit. As a result, appellants contend this court has jurisdiction to hear the interlocutory appeal under section 15.003.
"Section 15.003 is not a venue statute; it is a joinder statute." Am. Home Prod., 38 S.W.3d at 96. "The statute allows an interlocutory appeal for one specific purpose: to contest the trial court's decision allowing or denying" the inclusion of a plaintiff, whether "by joinder, by intervention, because the lawsuit was begun by more than one plaintiff, or otherwise." See id.; see also TEX. CIV. PRAC. & REM. CODE § 15.003(a). Thus, we must determine whether the trial court's decision was a determination that venue was proper in Maverick County or whether its decision was based on a determination that the Viescas could or could not join the suit as plaintiffs. Because there is no reporter's record from any hearing on the motions to transfer, we must look to the motions to transfer venue filed by the appellants, the arguments made therein, and the trial court's orders to answer this question.
After McCaskill filed her petition in January 2011, Stinziano, Harding Bars, and Ramsey-White Bars each filed motions to transfer venue in late February 2011. The Viescas did not move to transfer venue; instead, they filed a cross-claim against the other defendants, who are the appellants here. The appellants all filed answers to the cross-claim, subject to their motions to transfer venue. In April 2011, McCaskill filed a first amended petition. Stinziano supplemented his motion to transfer venue and Harding Bars amended its motion to transfer venue. In mid-April 2011, McCaskill filed a second amended petition. Ramsey-White filed a motion to transfer venue and Stinziano filed a second supplement to his motion to transfer venue.
Each of the various motions to transfer venue made the same or similar arguments: (1) McCaskill's choice of venue in Maverick County was improper under section 15.002; (2) McCaskill improperly joined the Viescas for the sole purpose of establishing venue in Maverick County; (3) the Viescas could not independently establish venue in Maverick County under section 15.003; and (4) under section 15.002, venue was proper in Bexar County. On August 11, 2011, the trial court denied all the motions to transfer venue.
It is clear from the motions to transfer venue that the appellants' complaints focused primarily on the choice of Maverick County as the county of venue and not on whether the Viescas could intervene or join the lawsuit as plaintiffs. The trial court's orders, entitled "Order Denying [Defendant's] Motion to Transfer Venue," do not state the basis for the court's ruling. Given these circumstances, we cannot conclude the trial court "necessarily determine[d] an intervention or joinder issue under section 15.003(a)." Am. Home Prod., 38 S.W.3d at 96. Nor can we conclude the trial court's order "necessarily rested on the trial court's determination of the propriety of joinder under section 15.003(a)." See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (agreeing with court of appeals's determination that it had jurisdiction under section 15.003(c)). Because it appears the trial court did not determine the issue of joinder or intervention, an interlocutory appeal is not available and this court does not have jurisdiction.
In the underlying appeal, a panel of this court concluded it had jurisdiction over the interlocutory appeal because "the trial court in this case could only transfer venue if the joinder of the plaintiffs was improper . . . ." Abel v. Surgitek, Bristol-Myers Corp., 975 S.W.2d 30, 36 (Tex. App.—San Antonio 1998), judgm't rev'd, appeal dismissed on other grounds, 997 S.W.2d 598 (Tex. 1999).
CONCLUSION
We conclude our jurisdiction to hear this interlocutory appeal was not invoked under section 15.003(c). Accordingly, we dismiss the appeal for want of jurisdiction.
Sandee Bryan Marion, Justice