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concluding that movant's reply, which included new venue allegations and evidence, constituted a timely amended motion to transfer venue when it was filed before trial court ruled on the original motion to transfer
Summary of this case from Bundy v. HoustonOpinion
No. 13-05-090-CV
Memorandum Opinion Delivered and Filed June 9, 2005.
On appeal from the 239th District Court of Brazoria County, Texas.
Retired Fourteenth Court of Appeals Justice Don Wittig, assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. §§ 74.003, 75.003 (Vernon 1998 and Vernon Supp. 2004-05).
Joined by Chief Justice VALDEZ and Justices CASTILLO and WITTIG.
MEMORANDUM OPINION
This is an accelerated interlocutory appeal under section 15.003(c) of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. REM. CODE ANN. § 15.003(c) (Vernon Supp. 2004-05). Appellants, Renzenberger, Inc. ("Renzenberger"), The Burlington Northern and Santa Fe Railway Company ("BNSF"), and Samuel Grant Everson ("Everson"), appeal from an order of the trial court denying their motion to transfer venue and concluding that the joinder of appellee, Cornelious O'Bryant, Jr. ("O'Bryant"), in the underlying lawsuit is proper. See TEX. CIV. PRAC. REM. CODE ANN. § 15.003(a) (Vernon Supp. 2004-05). We reverse and remand.
A. BACKGROUND
This case arises from an automobile accident that occurred in Milam County. O'Bryant and Randy Daniels ("Daniels"), another passenger in the vehicle, allege that they sustained personal injuries in the accident. Both parties filed suit against appellants in Brazoria County.
O'Bryant and Daniels are railroad workers employed by BNSF. Their cause of action arises under the Federal Employers' Liability Act ("FELA"). See 45 U.S.C. § 51 et seq. Suits brought under the FELA are subject to the mandatory venue provisions set forth in section 15.018 of the civil practice and remedies code. TEX. CIV. PRAC. REM. CODE ANN. § 15.018 (Vernon 2002). Section 15.018 provides, in relevant part:
(b) All suits brought under the Federal Employers' Liability Act . . . 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;
(2) in the county where the defendant's principal office in this state is located; or
(3) in the county where the plaintiff resided at the time the cause of action accrued.
TEX. CIV. PRAC. REM. CODE ANN. § 15.018(b) (Vernon 2002).
The petition filed by O'Bryant and Daniels asserts that venue is proper as to Daniels under the FELA because he is a resident of Brazoria County. As to O'Bryant, the petition asserts that venue is proper in Brazoria County pursuant to the joinder provisions of section 15.003 of the civil practice and remedies code. TEX. CIV. PRAC. REM. CODE ANN. § 15.003 (Vernon Supp. 2004-05). Section 15.003 provides, in relevant part:
(a) In a suit in which there is more than one plaintiff, whether the plaintiffs are included by joinder, by intervention, because the lawsuit was begun by more than one plaintiff, or otherwise, each plaintiff must, independently of every other plaintiff, establish proper venue. If a plaintiff cannot independently establish proper venue, that plaintiff's part of the suit, including all of that plaintiff's claims and causes of action, must be transferred to a county of proper venue or dismissed, as is appropriate, unless that plaintiff, independently of every other plaintiff, establishes that:
(1) joinder of that plaintiff or intervention in the suit by that plaintiff is proper under the Texas Rules of Civil Procedure;
(2) maintaining venue as to that plaintiff in the county of suit does not unfairly prejudice another party to the suit;
(3) there is an essential need to have that plaintiff's claim tried in the county in which the suit is pending; and
(4) the county in which the suit is pending is a fair and convenient venue for that plaintiff and all persons against whom the suit is brought.
TEX. CIV. PRAC. REM. CODE ANN. § 15.003(a) (Vernon Supp. 2004-05).
Appellants filed a motion to transfer O'Bryant's cause of action to Tarrant County, the county in which the principal office of BNSF is located. Appellants specifically denied O'Bryant's assertion that venue was proper in Brazoria County under section 15.003 of the civil practice and remedies code.
O'Bryant filed a response with attached affidavits, deposition excerpts, and responses to discovery requests. In the response, O'Bryant argued that he was properly before the court in Brazoria County because he had established the four elements necessary for joinder set forth in section 15.003(a). See TEX. CIV. PRAC. REM. CODE ANN. § 15.003(a) (Vernon Supp. 2004-05).
Appellants later filed a reply and attached the investigating police officer's accident report and an excerpt from the officer's deposition. In the reply, appellants asserted that pursuant to section 15.018, there are three counties of proper venue in this case: (1) Milam, (2) Harris, and (3) Tarrant. See TEX. CIV. PRAC. REM. CODE ANN. § 15.018 (Vernon 2002). Appellants submitted the investigating police officer's accident report and deposition testimony as evidence that: (1) the accident occurred in Milam County and (2) O'Bryant resided in Harris County at the time of the accident. Appellants requested the transfer of O'Bryant's cause of action to either Milam County, Harris County, or Tarrant County. Following a hearing, the trial court denied appellants' motion to transfer venue. This interlocutory appeal ensued.
B. STANDARD OF REVIEW
We conduct an independent de novo review of the entire record of a trial court's section 15.003(a) joinder determination. TEX. CIV. PRAC. REM. CODE ANN. § 15.003(c)(1) (Vernon Supp. 2004-05); Am. Home Prods. v. Clark, 38 S.W.3d 92, 99 (Tex. 2000); Surgitek v. Abel, 997 S.W.2d 598, 603 (Tex. 1999). In conducting this review, the appellate court is not constrained solely to review the pleadings and affidavits, but should consider the entire record, including any evidence presented at the hearing. Surgitek, 997 S.W.2d at 603.
The plaintiff bears the burden of proof to establish prima facie proof of each joinder element. See id. at 602-03; Teco-Westinghouse Motor Co. v. Gonzalez, 54 S.W.3d 910, 913 (Tex.App.-Corpus Christi 2001, no pet.). If the defendant offers no rebuttal evidence, the inquiry is over. Surgitek, 997 S.W.2d at 603. However, if the defendant's joinder evidence rebuts the plaintiff's prima facie proof, the trial court has discretion to consider all available evidence to resolve any disputes that the parties' proof creates. Id. The trial court has discretion to allow a broader range of proof in making a section 15.003(a) joinder determination than it would in a venue hearing. Id. Specifically, a trial court may allow the parties to offer testimony and may order limited discovery on the joinder elements if the trial court believes it would be useful to its determination. Id.
C. ANALYSIS
Appellants contend that O'Bryant did not meet his burden of establishing all four elements required by section 15.003(a) for joinder. See TEX. CIV. PRAC. REM. CODE ANN. § 15.003(a) (Vernon Supp. 2004-05). Specifically, appellants argue that O'Bryant failed to meet his burden of proving an "essential need" to have his case tried in Brazoria County. Because appellants concede that O'Bryant has satisfied elements (1), (2) and (4), we will limit our review to element (3) of section 15.003(a).
O'Bryant has not argued to this Court, or to the trial court, that he can establish venue in Brazoria County independent of Daniels. Therefore, he must satisfy the four requirements set forth in section 15.003(a). See TEX. CIV. PRAC. REM. CODE ANN. § 15.003(a) (Vernon Supp. 2004-05).
The third element of section 15.003(a) requires that O'Bryant establish an essential need to have his claim tried in Brazoria County. See Tex. Civ. Prac. Rem. Code Ann. § 15.003(a) (Vernon Supp. 2004-05); Surgitek, 997 S.W.2d at 604; Gonzalez, 54 S.W.3d at 915. To prove an essential need, he must show a compelling reason why he must be joined in that county, and not merely that he has an essential need to join with Daniels in order to pool resources. See Surgitek, 997 S.W.2d at 604; Gonzalez, 54 S.W.3d at 915. He must establish that it was "indispensably necessary" to try his claim in Brazoria County. See Surgitek, 997 S.W.2d at 604 (recognizing that the language of section 15.003 makes the burden of proving proper joinder "very high").
O'Bryant argues that he has an essential need to have his case tried in Brazoria County because his key witness, Daniels, is only available to testify in Brazoria County. The evidence offered by O'Bryant to establish his right to join the Brazoria County lawsuit included his own affidavit, Daniels' affidavit, the affidavit of his attorney, Everson's deposition, and responses made by BNSF and Renzenberger to requests for admission.
O'Bryant also argues that he has an essential need to stay in the Brazoria County case because if his case is transferred to another county he may be bound by the outcome of the Brazoria County case on the basis of collateral estoppel. However, because O'Bryant failed to plead or argue collateral estoppel as a basis for "essential need" in the trial court, and a party cannot raise an issue or argument for the first time on appeal which was not presented to the trial court, we need not address this argument. See Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993).
In his affidavit, O'Bryant says that Daniels is an indispensable witness because the facts in Daniels' case are the same facts in his case. In his affidavit, Daniels states that as a result of the accident, he has had back surgery and is scheduled to have surgery on his neck. Daniels states he is unable to work, his wife is providing for the family, and he is assisting with the care of their children. Daniels states he does not have the money to travel to Tarrant County and will not personally testify for O'Bryant if the case is moved to Tarrant County, or any other county, other than Brazoria. Daniels also states that he believes he is an indispensable witness for O'Bryant because he was in the passenger seat of the van and can testify that Everson overcorrected the van, causing it to run off the road.
The affidavit of O'Bryant's attorney states that he represents both O'Bryant and Daniels in their suit against appellants, the case involves the same facts and same causes of action, and, with the exception of health care providers, he intends to present the same evidence and witnesses for Daniels as he does for O'Bryant. He contends that Daniels is an indispensable witness to O'Bryant's case because he has knowledge regarding the negligence of Renzenberger, weather and road conditions, and O'Bryant's physical condition before and after the accident. In the affidavit, he also states that trying both cases in Brazoria County will preserve judicial resources, reduce litigation costs for all parties, and eliminate the possibility of inconsistent judgments.
In support of his argument that the unavailability of an indispensable witness satisfies the "essential need" element of section 15.003, O'Bryant refers us to our opinion in Teco-Westinghouse Motor Co. v. Gonzalez. In Gonzalez, we found that when an indispensable witness, who worked in Monterrey, Mexico, could not be available for a trial held away from the state border, an essential need existed to conduct the trial in Cameron County. 54 S.W.3d at 915-17. Appellants counter that Gonzalez is distinguishable because Cameron County was the only county that could provide Gonzalez with the availability of his indispensable witness, whereas in the instant case, Brazoria County is not the only county that can ensure the availability of O'Bryant's indispensable witness.
Appellants assert that, under the FELA, O'Bryant has three choices for proper venue: (1) Milam County, where the accident occurred; (2) Tarrant County, where BNSF has its principal place of business; or (3) Harris County, O'Bryant's county of residence at the time of the accident. See TEX. CIV. PRAC. REM. CODE ANN. § 15.018 (Vernon 2002). Appellants contend that Daniels' affidavit declaring his unavailability fails to rise to the level of prima facie evidence on the issue of unavailability. We agree.
O'Bryant's claim that he has an "essential need" to try his case in Brazoria County is based on Daniels' affidavit that he will not personally testify for O'Bryant if the case is moved to Tarrant County, or any other county, other than Brazoria County. However, we note that the Texas Rules of Civil Procedure authorize litigants to subpoena witnesses to appear and give testimony at trial. See TEX. R. CIV. P. 176.2. A person may be required by subpoena to appear in a county that is within 150 miles from where the person resides or is served. See TEX. R. CIV. P. 176.3. Failure to obey a subpoena may be deemed contempt of the court from which the subpoena is issued and may be punished by fine or confinement, or both. See TEX. R. CIV. P. 176.8(a). Harris County and Milam County are both within 150 miles from Pearland, Texas, the location of Daniels' residence, and O'Bryant has the ability to subpoena Daniels to appear at a trial in either one of these venues. Although Daniels' affidavit states that he will not appear in any other county, except Brazoria, as a witness, he may be compelled to appear in another county pursuant to rule 176.8(a) by the procurement of a writ of attachment. See TEX. R. CIV. P. 176.8(a).
A court may take judicial notice of the location of cities, counties, boundaries, dimensions, and distances, because geographical facts such as these are easily ascertainable and capable of verifiable certainty. Butts Retail, Inc. v. Diversifoods, Inc., 840 S.W.2d 770, 774 (Tex.App.-Beaumont 1992, writ denied).
O'Bryant contends appellants waived the right to request that his case be transferred to any county, other than Tarrant County, because they failed to properly amend their motion to transfer venue. However, we note that in their reply, appellants requested that O'Bryant's cause of action be transferred to either Milam County, Harris County, or Tarrant County, the three counties of proper venue under section 15.018 of the civil practice and remedies code. Although the pleading was entitled "reply" as opposed to "amended motion to transfer," we look to the substance, not the caption, of a pleading to determine its character. See TEX. R. CIV. P. 71; Surgitek, 997 S.W.2d at 701. The substance of appellants' request is clear: they sought to amend their motion to transfer venue to include two additional counties. Furthermore, because appellants' amended motion was filed before the court ruled on the original motion to transfer venue, we conclude that the amended motion was timely filed. See In re Pepsico, Inc., 87 S.W.3d 787, 794 (Tex.App.-Texarkana 2002, no pet.) (holding that "an original timely motion to transfer venue may be amended to cure defects in the original motion if the amended motion is filed before the trial court rules on the original motion, and that the properly filed amended motion relates back to and supersedes the original motion to transfer venue."). Having reviewed the entire record, we conclude that O'Bryant failed to establish that it was "indispensably necessary" to try his claim in Brazoria County. Daniels' assertion that he will only testify for O'Bryant if his case is tried in Brazoria County fails to rise to the level of prima facie evidence on the issue of unavailability, the sole basis for O'Bryant's essential need to try his case in Brazoria County. Accordingly, we sustain appellants' sole issue.
We reverse the trial court's order denying appellants' motion to transfer O'Bryant's cause of action and remand this case to the trial court for further proceedings.
DISSENTING MEMORANDUM OPINION
The majority holds that appellee, Cornelious O'Bryant, Jr., failed to establish an essential need to have his lawsuit tried in Brazoria County. Accordingly, the majority reverses the trial court's order denying appellants' motion to transfer venue. Because I would hold that O'Bryant met his burden to establish an essential need to try his lawsuit in Brazoria County, I respectfully dissent.
Background
This is an accelerated interlocutory appeal under section 15.003 of the civil practice and remedies code. Appellants, Rentzenberger, Inc. ("Rentzenberger"), The Burlington Northern and Santa Fe Railway Company ("BNSF"), and Samuel Grant Everson ("Everson"), appeal from the trial court's order denying their motion to transfer venue. O'Bryant filed suit against appellants, alleging personal injuries arising out of an automobile accident. In a single issue, appellants contend the trial court erred in denying their motion to transfer venue because O'Bryant failed to establish an "essential need" to have his lawsuit tried in Brazoria County as required by section 15.003.
See TEX. CIV. PRAC. REM. CODE ANN. § 15.003(a) (Vernon Supp. 2004-05).
See id.
O'Bryant and Randy Daniels ("Daniels") are railroad workers employed by BNSF. BNSF contracts with Renzenberger, a crew transportation company, to transport BNSF employees to and from various points. On February 14, 2004, BNSF arranged for Everson, a driver for Renzenberger, to pick up O'Bryant and Daniels in Davidson, Texas, and drive them to Temple, Texas. En route to Temple, the vehicle was involved in a single-vehicle accident in Buckholts, Texas, which is located in Milam County. O'Bryant and Daniels allege that they suffered personal injuries as a result of the accident. They filed suit in Brazoria County based on the Federal Employers' Liability Act ("FELA").
See 45 U.S.C. § 51 et seq. (2005).
Suits brought under the FELA are subject to the mandatory venue provisions set forth in section 15.018 of the civil practice and remedies code. Appellants concede that Brazoria County is a proper venue for Daniels under the FELA because he resides there. O'Bryant is a resident of Harris County, however, and cannot properly maintain venue in Brazoria County independently. Therefore, he seeks to join Daniels's suit pursuant to section 15.003 of the civil practice and remedies code.
TEX. CIV. PRAC. REM. CODE ANN. § 15.018 (Vernon 2002).
See Tex. Civ. Prac. Rem. Code Ann. § 15.003(a) (Vernon Supp. 2004-05).
On May 10, 2004, appellants filed a motion to transfer venue, requesting that O'Bryant's claim be transferred to Tarrant County, where BNSF's principal place of business is located. Appellants also denied O'Bryant's claim that venue was proper in Brazoria County pursuant to section 15.003. In the same document, "subject to the foregoing Motion to Transfer Venue," appellants filed an "Original Answer," which included a general denial of the plaintiffs' claims and various alternative defensive pleadings. O'Bryant filed a response to the motion to transfer. He attached various affidavits and other evidence, which he contends establishes, by prima facie proof, each of the joinder elements under section 15.003.
See TEX. R. CIV. P. 86 (2) (a motion objecting to improper venue may be contained in a separate instrument filed concurrently with or prior to the filing of a movant's first responsive pleading or the motion may be combined with other objections and defenses in the movant's first responsive pleading).
On November 22, 2004, seven days prior to the hearing on the motion to transfer venue, appellants filed a "reply" to O'Bryant's response and motion for severance. In the reply, appellants requested that venue be transferred to any of the three counties of proper venue: (a) Milam County (where the accident occurred); (b) Tarrant County (where BNSF's principal place of business is located); or (c) Harris County (the county where O'Bryant resided at the time of the accident).
Appellants argue that "the pleading was misnomered a `reply,'" and that the reply brief was, in substance, an amended motion to transfer venue.
See Tex. Civ. Prac. Rem. Code Ann. § 15.018(b) (Vernon 2002).
On November 29, 2004, the trial court held a hearing on appellants' motion to transfer venue. At the hearing, O'Bryant's counsel objected that appellants "have not amended their motion to transfer this case to Harris or Milam County." At the conclusion of the hearing, the trial court noted, "You know, we got the cases here. We got both these cases here in Brazoria County." The trial court denied appellants' motion to transfer venue. This appeal ensued.
Standard of Review and Applicable Law
We review the propriety of a trial court's section 15.003 joinder decision by conducting an independent de novo review of the entire record.
TEX. CIV. PRAC. REM. CODE ANN. § 15.003(c)(1) (Vernon Supp. 2004-05); Teco-Westinghouse Motor Co. v. Gonzalez, 54 S.W.3d 910, 913 (Tex.App.-Corpus Christi 2001, no pet.) (citing Am. Home Prods. v. Clark, 38 S.W.3d 92, 99 (Tex. 2000)).
The plaintiff bears the burden to offer prima facie proof of each joinder element in section 15.003(a). Prima facie proof consists of properly pleaded venue facts along with filed affidavits and duly proved attachments to the affidavits that fully and specifically set forth the facts supporting each pleading. If the defendant offers no rebuttal evidence, the inquiry is over. The trial court has discretion to consider a broader range of evidence in making a section 15.003(a) joinder determination than it would in a venue hearing. The court of appeals is not constrained solely to review the pleadings and affidavits, but considers the entire record, including any evidence presented at the hearing. Any affidavit evidence relied upon in support of venue allegations must be made on personal knowledge, set forth specific facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify.
Surgitek v. Abel, 997 S.W.2d 598, 602-03 (Tex. 1999); Teco-Westinghouse, 54 S.W. 3d at 913.
TEX. R. CIV. P. 87(3)(a); Blalock Prescription Ctr., Inc. v. Lopez-Guerra, 986 S.W.2d 658, 662 (Tex.App.-Corpus Christi 1998, no pet.).
Surgitek, 997 S.W.2d at 603.
Teco-Westinghouse, 54 S.W.3d at 913.
Id.
Id.; see TEX. R. CIV. P. 87(3)(a); Blalock, 986 S.W.2d at 662.
Analysis
O'Bryant had the burden of establishing, by prima facie proof, each of the above-listed joinder elements. He attempted to do this by attaching the following documents to his response to appellants' motion to transfer:
Surgitek, 997 S.W.2d at 602-03; Teco-Westinghouse, 54 S.W. 3d at 913.
(1) the affidavit of Clint E. McGuire, attorney for O'Bryant and other plaintiffs, which states, among other things, that: (a) O'Bryant's and Daniels's suits arise out of the same occurrence and thus involve the same facts, causes of action, evidence and witnesses; (b) Daniels is an indispensable witness to O'Bryant's case and his live testimony is essential to the case; (c) Daniels will appear and testify for O'Bryant only in Brazoria County, and will not travel to any other county to testify on O'Bryant's behalf; (d) Daniels's case will be tried in Brazoria County, regardless of the outcome of appellants' motion to transfer in O'Bryant's case; and (e) trying both cases in Brazoria County will preserve judicial resources, reduce litigation costs for all parties, and eliminate the possibility of inconsistent judgments.
(2) Daniels's affidavit, which states, among other things, that: (a) his case will be tried in Brazoria County, regardless of whether O'Bryant's case is transferred; (b) because of family responsibilities, he will testify for O'Bryant only if O'Bryant's case is also tried in Brazoria County, and will not testify for O'Bryant if his case is transferred to any other county; and (c) he has personal knowledge of the facts regarding the accident, and is therefore an indispensable witness for O'Bryant.
(3) O'Bryant's own affidavit, in which he states, among other things, that Daniels has crucial knowledge regarding the accident and is therefore an indispensable witness in O'Bryant's case.
(4) Everson's deposition testimony, in which he states that he does not recall the details of the accident because it "all happened so fast."
(5) appellants' responses to O'Bryant's requests for admission.
Appellants filed a November 22, 2004 "reply" to O'Bryant's response. In their reply, appellants argue that O'Bryant failed to establish the "essential need" element of section 15.003. Appellants argue that O'Bryant's reliance on Daniels's unwillingness to travel outside of Brazoria County to testify fails to establish an "essential need" for O'Bryant to try his lawsuit in Brazoria County because if O'Bryant's case were transferred to either Milam or Harris County — both counties of proper venue — Daniels could be subpoenaed to testify because his residence is within the 150-mile subpoena range of the court. See TEX. R. CIV. P. 176.3(a).
See TEX. CIV. PRAC. REM. CODE ANN. § 15.003(a)(3) (Vernon Supp. 2004-05).
Rule 176.3(a) provides, in pertinent part:
(a) Range. A person may not be required by subpoena to appear or produce documents or other things in a county that is more than 150 miles from where the person resides or is served.
TEX. R. CIV. P. 176.3(a).
Appellants attached two documents to their reply: (1) the accident report, establishing that the accident occurred in Milam County and that O'Bryant is a resident of Harris County; and (2) an excerpt from the investigating officer's deposition testimony establishing the validity of the accident report.
In their sole issue, appellants contend that O'Bryant failed to establish an essential need to have his lawsuit tried in Brazoria County. Before examining the evidence, however, I first address appellants' argument that their "misnomered" reply was an amended motion to transfer venue.
Appellees argue that appellants' May 10, 2004 motion to transfer venue requested transfer to Tarrant County (BNSF's principal place of business) only and that appellants never amended their motion to request transfer to any other county. Appellants argue that although "misnomered a `reply,'" their November 22, 2004 pleading was, in substance, an amended motion to transfer venue. Thus, appellants argue that their "amended motion" requested transfer of venue to any one of three counties of proper venue: Milam County, Tarrant County, or Harris County. I turn to appellants' contention that their November 22 "reply" was an amended motion to transfer venue.
In determining the nature of a pleading, we must look to the substance of the pleading and not just to the title given to the pleading. A "supplemental" or reply pleading is filed in response to the last pleading of an adverse party and repeats allegations previously pleaded only when necessary. An amended petition, on the other hand, adds to or withdraws from that which was previously pleaded, such as a new cause of action. An amended petition also supersedes all prior petitions. An amended pleading is to be entire and complete in itself; it is a substitute for the instrument amended.
J.M. Huber Corp. v. Santa Fe Energy Res., Inc., 871 S.W.2d 842 (Tex.App.-Houston [14th Dist.] 1994, writ denied).
TEX. R. CIV. P. 62.
See Hawkins v. Anderson, 672 S.W.2d 293, 295 (Tex.App.-Dallas 1984, no writ).
See Tex. R. Civ. P. 64.
As noted, appellants argue that their November 22, 2004 reply — which expands their request to transfer venue to Milam and Harris County, in addition to Tarrant County — is an amended motion to transfer. If we accept appellants' argument, however, the November 22 reply is a substitute for appellants' May 10, 2004 motion. Appellants' November 22 reply: (a) argues that the mandatory venue provisions of section 15.018 of the civil practice and remedies code defeat O'Bryant's joinder argument pursuant to section 15.003; (b) pleads alternatively that even if the court determines that section 15.003 applies, O'Bryant has nonetheless failed to establish an "essential need" to try the case in Brazoria County because Daniels resides within the 150-mile subpoena range of Harris County and Milam County; and (c) moves that O'Bryant's claims be severed and transferred. Appellants' November 22 reply does not contain an answer to the plaintiffs' pleadings. Looking to the substance of appellants' November 22 reply, which does not contain an answer or other defensive pleadings, I conclude it is a reply pleading and is not an amended motion to transfer venue.
See id.
See TEX. R. CIV. P. 69.
I now turn to appellants' argument that O'Bryant failed to establish an essential need to try his suit in Brazoria County.
See Surgitek, 997 S.W.2d at 602-03; Teco-Westinghouse, 54 S.W.3d at 913.
Daniels's affidavit asserts that he has personal knowledge of facts regarding the accident and is therefore an indispensable witness for O'Bryant. He also states that because of family responsibilities, he will only testify for O'Bryant if the case is tried in Brazoria County. O'Bryant's affidavit similarly asserts that Daniels is an indispensable witness in his case. In his affidavit, counsel for O'Bryant and Daniels also states that Daniels is an indispensable witness in O'Bryant's case and will testify only if O'Bryant's case is tried in Brazoria County. Everson, the only other person involved in the accident, confirms in his deposition testimony that he does not know what happened. I conclude that O'Bryant offered prima facie proof that he has an essential need to try his lawsuit in Brazoria County.
Appellants' rebuttal evidence established that Milam County and Harris County are counties of proper venue. In addition, appellants argued that if the case were transferred to either Milam County or Harris County, Daniels could be subpoenaed to testify because he resides within the 150-mile subpoena range applicable to Milam or Harris County. I have determined, however, that appellants' November 22 reply is not an amended motion to transfer venue. Appellants' May 10 motion to transfer requested transfer only to Tarrant County. Because appellants' rebuttal evidence relies on a presumption that their "amended motion to transfer" requested transfer to Milam County and Harris County — a contention I reject — I conclude that appellants have offered insufficient evidence to rebut O'Bryant's prima facie proof establishing essential need. Accordingly, after conducting an independent de novo review of the entire record, I would hold that O'Bryant met his burden to establish an essential need to try his lawsuit in Brazoria County. I would overrule appellants' sole issue and affirm the judgment of the trial court.
See TEX. R. CIV. P. 176.3(a). We recognize that under rule 176.3, a witness may be required by subpoena to appear or produce documents in any county within 150 miles from the place where the witness resides or was served. Tex. R. Civ. P. 176.3. However, a subpoenaed person may file an objection or a motion for protective order to a subpoena that imposes an undue burden or expense. TEX. R. CIV. P. 176.7. In the present case, Daniels's affidavit states that because he has been unable to work since the accident, his wife provides for the family and he assists with child-care responsibilities.
See TEX. CIV. PRAC. REM. CODE ANN. § 15.003(c)(1) (Vernon Supp. 2004-05); Teco-Westinghouse, 54 S.W. 3d at 913.