NO. B-162,024
WILLIAM L. SIMPSON and § IN THE DISTRICT COURT OF
EVA SIMPSON
VS.
DELTA DISTRIBUTORS f/k/a or d/b/a §
Delta Solvents, and
Humco Laboratory, Inc.
HUMCO HOLDING GROUP, as successor
to Humco Laboratory, Inc.
PENNZOIL-QUAKER STATE COMPANY
f/k/a or d/b/a Pennzoil Company
SHELL OIL COMPANY § 60TH JUDICIAL DISTRICT
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, WILLIAM L. SIMPSON and EVA SIMPSON, Plaintiffs, and file this Response to All Motions to Transfer Venue filed by the defendants, and would show unto the Court as follows:
I.
Plaintiffs filed on
From 1947 until 1989 the plaintiff,
William L. Simpson, was employed by Gulf States Utilities Company in
Attached as Exhibit “K” to this response is an excerpt from the deposition of Robert D. Meadows, who is the general manager of Humco Laboratory. Mr. Meadows testified that Humco Laboratory was incorporated in the State of Texas, was a private corporation and has been in business in Texarkana since 1872. The corporation primarily repackages health and beauty aid products. However, benzene is one of the products that Humco repackaged at their facilities in Texarkana. The only source for the benzene which Humco Laboratory repackaged was Delta Solvents. This is the Delta that has its address in Longview, Texas. It was this benzene product which was repackaged by Humco Laboratory that was used by William Simpson at his employment in Beaumont, Jefferson County, Texas, from 1947 until 1989. It was this repackaged benzene product that William Simpson used at his employment at Gulf States Utilities Company and which was a proximate cause and producing cause of his disease, Chronic Lymphocytic Leukemia.
II.
This case should not be transferred
to Harris County, Texas. Venue is proper
in Jefferson County under Tex.Civ.Prac.&Rem.
Code, § 15.093 and § 15.094.
In fact, venue is proper in both Orange and Jefferson Counties. See, for example, Ray v. Farris,
887 S.W.2d 164 (Tex.App.—Texarkana 1994), rev’d. on other grounds, Farris
v. Ray, 895 S.W.2d 351 (Tex. 1995); 2 McDonald & Carlson, Texas
Civil Practice § 6:4 (2nd Ed.) (“One of the most
significant changes to the current venue practice is the addition to the
locations where venue is proper of the county in which all or a substantial
part of the events or omissions giving rise to the claim occurred at the time
the claim accrued. This part of the
current venue rule apparently is intended to benefit the plaintiff by providing
increased possibilities for access to the Texas courts.”). Professor Carlson cites the Ray case,
amongst numerous other cases, as support for this proposition. See also, Childs v. Hausseker, 974 S.W.2d 31, 33 (Tex. 1998); and, Pustejovski v. Rapid-American, 35 S.W.3d 643, 653-654 (Tex. 2000). In a case decided by the United States
Supreme Court on March 10, 2003, in Norfolk
& Western Railway Co. v. Ayers (2003WL888363)
that court cited Pustejovski as an authority for the “separate disease
rule” in which one can be exposed to a toxic substance at one location and
years or decades later develop various diseases in other parts of the country
as a result of that original exposure.
The accrual of the cause of action in these types of cases differs
markedly from the accrual of a cause of action for an injury that occurs
immediately. An automobile accident and a broken leg are but one example that
comes to mind. Not only are Jefferson
and Orange Counties proper counties for Mr. Simpson to sue for his injuries,
but if he develops other diseases from that toxic exposure, other counties in Texas
may become other sites of proper venue.
Since
the exposure to the toxic chemicals occurred in Jefferson County at the
worksite, and the development of the disease first manifested itself at the
Simpsons’ home in Orange County, a “substantial part of the events or omissions
giving rise to the claim” occurred in both counties. Statutes regulating local venue of legal
proceedings are generally designed to provide for the convenience of the
parties. See, Snyder v. Pitts, 241
S.W.2d 136, 142 (Tex. 1951). Since all
of the injury, including the development of the disease and medical treatment
occurred in Jefferson and Orange Counties, all of the records are here,
establish that the true “convenience of parties” would be here in East Texas
and not in Harris County.
III.
As of the filing of this response, there is still pending in the 280th District Court of Harris County, Texas, a case styled William L. Simpson v. Shell Oil Company, et al, Cause No. 2000-32640. This case is pending despite the fact that the Fourteenth Court of Appeals has ordered that case dismissed. The Supreme Court of Texas refused to hear a petition for mandamus from these defendants. See Exhibit “B” attached, which is a copy of the opinion of the Court of Appeals.
Even though two lawsuits are pending, which these defendants claim are the same suits, Plaintiffs have the right to insist on which lawsuit they will pursue. See, F&C Engineering Co. v. Bryan, 320 S.W.2d 435, 437 (Tex.Civ.App.—Austin 1959, no writ). As the court in F&C Engineering Co. further pointed out:
It is a well-settled rule of law in this state that the pendency of another suit will not authorize the abatement of the suit in which such plea is filed without giving the plaintiff the opportunity to elect which he will abandon. 1 Texas Juris. p. 98, § 69; Wilkerson v. Ft. Worth & D.C.R. Co., Tex.Civ.App., 171 S.W.1041; City of Dallas v. McElroy, Tex.Civ.App. 254 S.W. 599; International & G.N. Railway Co. v. Barton, 24 Tex.Civ.App. 122, 57 S.W. 292.
Abatement because of the pendency of another lawsuit is not recognized in Texas. This principle was recognized early in Texas Jurisprudence. In Wilkerson v. Ft. Worth & D.C.R. Co., 171 S.W. 1041, 1042 (Tex.Civ.App.—Dallas 1915, writ ref’d.) the court held:
The doctrine that the pendency of a prior suit for the same cause between the same parties in courts of the same jurisdiction is ground of abatement is not recognized in this state. The utmost extent to which the court may go upon the presentation of a plea setting up the pendency of such a suit is to put the plaintiff to his election of which suit he will prosecute and require him to abandon the other and pay the costs of it. This is the express holding of our Supreme Court in the cases of Payne v. Benham, 16 Tex. 364, and Trawick v. Martin, Brown Co., 74 Tex. 522, 12 S.W. 216. In Garza v. Jesse French Piano & Organ Co., 126 S.W. 906, this court speaking through Mr. Justice Bookhout said:
The doctrine of the common law that a suit pending between parties precludes them from maintaining between themselves another suit on the same cause of action in courts of the same jurisdiction is not enforced in Texas.
The fact that these defendants are seeking an abatement in this case is a plea that should be denied. The plaintiffs have chosen to proceed with their lawsuit in Jefferson County and the Courts of Appeal have ordered that the Harris County suit be dismissed.
IV.
Tex.R.Civ.P. 87(3)(a)
The defendants’ motions to transfer venue are defective. They do not constitute the specific denial required by Tex.R.Civ.P. 87. See, Garcia v. Garza, 70 S.W.3d 362, 369 (Tex.App.—Corpus Christi 2002, no pet.) (“A ‘special denial’ calls for more than just the use of the words ‘We specifically deny.’ We hold that a ‘special denial’ of the venue fact requires that the fact itself be denied.”); Rodriguez v. Printone Color Corp., 982 S.W.2d 69, 71 (Tex.App.—Houston [1st Dist.] 1998, no pet.); Maranatha Temple, Inc. v. Enter. Prod. Co., 833 S.W.2d 736, 740 (Tex.App.—Houston [1st Dist.] 1992, writ den’d.). The Simpsons’ venue facts must be taken as true. A plaintiff’s right to have a suit stay in the county in which he or she rightfully brought it, is a fundamental right and not subject to any harmless error analysis. See, Ford Motor Co. v. Miles, 967 S.W.2d 377, 380 (Tex. 1998).
Tex.Civ.Prac.&Rem.Code
§ 15.002 states as the counties of proper venue:
(a) Except
as otherwise provided by this subchapter or Subchapter B or C, 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;
(2) in the county of defendant’s residence at
the time the cause of action accrued if defendant is a natural person;
(3) in the county of the defendant’s
principal office in this state, if the defendant is not a natural person;
or
(4) if Subdivisions (1), (2), and (3) do not
apply, in the county in which the plaintiff resided at the time of the accrual
of the cause of action. (Emphasis
added).
The defendants
have not pled in their Motion to Transfer Venue that they are seeking to
transfer this case to their “principal office in this state.” This makes the Motions to Transfer Venue
fatally defective. See, Portland Sav. & Loan Ass’n. v.
Bevill, etc., 619 S.W.2d 241, 244
(Tex.Civ.App.—Corpus Christi 1981, no writ).
V.
These defendants are claiming that this Court does not have the jurisdiction, or other power, to determine the venue issues in this case. Res judicata is an affirmative defense which must be affirmatively pled by these defendants under Tex.R.Civ.P. 94. It was not raised in the motions to transfer venue and the issue has been waived. See, Whitley v. Whitley, 566 S.W.2d 660, 662 (Tex.Civ.App.—Beaumont 1978, no writ). 1 Tex.Jur. 3d, Actions § 136.
Although the defendants do not use the phrase “res judicata,” it is the generic term for a group of related concepts concerning the conclusive effect to be given to various prior rulings or judgments. See, Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). The general doctrine of res judicata encompasses two distinct categories: (1) res judicata, or claim preclusion, and (2) collateral estoppel, or issue preclusion. The defendants’ arguments raised the defense of issue preclusion.
The law on this matter is set out in a number of cases, including In Re Kimberly Calderon, 88 S.W.3d 395, 404 (Tex.App.—Tyler 2002, orig. proceeding):
The doctrine of collateral estoppel is used to prevent a party from relitigating an issue that it “previously litigated and lost.” Quinney Elec., Inc. v. Kondos Entertainment, Inc., 988 S.W.2d 212, 213 (Tex. 1999) (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S.Ct. 645, 650, 58 L.Ed.2d 552 (1979)). Thus, collateral estoppel precludes relitigation of identical issues of fact or law that were actually litigated and essential to the judgment in a prior suit. Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 384 (Tex. 1985). More particularly, the doctrine extends only to those issues that were either expressly determined or necessarily determined in an adjudication and not to those matters which might have been, but were not, raised and adjudicated in the prior action. Avila v. St. Luke’s Lutheran Hospital, 948 S.W.2d 841, 847 (Tex.App.San Antonio 1997, writ denied) (citing Barr, 837 S.W.2d at 628). Once an essential issue is actually litigated, that issue is conclusive in a subsequent action between the same parties. Van Dyke, 697 S.W.2d at 384. Collateral estoppel applies whether the issue is determined by agreement or by the court. Avila, 948 S.W.2d at 847.
Actual litigation occurs when an issue is properly raised, by the pleadings or otherwise, is submitted for determination, and is determined. Rexrode v. Bazar, 937 S.W.2d 614, 617 (Tex.App.Amarillo 1997, no writ) (citing Van Dyke, 697 S.W.2d at 384).
The arguments of Shell and the other defendants that there is issue preclusion in this case on the question of the venue choice of the Simpsons is incorrect for a number of reasons.
Whether venue facts are to be determined as of the time the lawsuit is filed, or the time the action accrued, the defendants have not pled any facts entitling them to a venue change. Socony Mobil Co. v. Southwestern Bell Telephone Co., 518 S.W.2d 257, 264 (Tex.Civ.App.—Corpus Christi 1974, no writ); Chem-Spray Aerosols v. Edwards, 576 S.W.2d 478, 479-480 (Tex.Civ.App.—Houston [14th Dist.], writ dism.); Blacklock v. Miller, 693 S.W.2d 651, 652 (Tex.App.—Dallas 1985, no writ); Atkins v. Wheeler, 307 S.W.2d 294, 296 (Tex.Civ.App.—Austin 1957, writ dism.) (“Venue is governed by the time of filing suit rather than by the time the cause of action arose.”). See also, Whiting v. Briscoe, 1 Dallam 540 (Tex.Repub. 1843) (“The parties instituting the suit ascertained the residence of Whiting, and commenced their suit in accordance with law. If Whiting afterwards, for the purpose of evading the jurisdiction, should have left the county in which the suit was instituted, it certainly could not be expected that the plaintiff should be reduced to the necessity of dismissing his suit, for the purpose of instituting another, when a like occurrence might happen. The residence of the party, at the time of the institution of the suit, determined the jurisdiction [venue], and in this we unanimously concur.”); Brown v. Boulden, 18 Tex. 431, 432 (Tex. 1857). Since the earliest days of the Texas Republic and the State of Texas, venue facts have been determined by those that existed at the time the lawsuit was filed. This rule applies to either domestic or foreign corporations. See, Sheldon Petroleum Co. v. Pierce, 546 S.W.2d 954, 957 (Tex.Civ.App.—Dallas 1977, no writ). But see, Tex.Civ.Prac.&Rem.Code § 15.006. The original petition in this case was filed on December 21, 1999. See Exhibit “A.” The order to transfer venue from the 128th Judicial District Court in Orange to a district court in Harris County, Texas, was filed on June 22, 2000. See Exhibit “H” attached.
A plaintiff’s right to have a suit stay in the county in which he or she rightfully brought it, absent a rightful transfer to another county, is a fundamental right not subject to a harmless error analysis. See, Ford Motor Co. v. Miles, 967 S.W.2d 377, 380 (Tex. 1998). The transfer to Harris County of the lawsuit filed in Orange County was error and harmful to the Simpsons. The defendants have not offered to this Court any evidence that the cause of action and parties in this suit are the same as any suit filed in another county. The defendants have failed to prove their burden in this regard and their plea to transfer venue and plea in abatement should be denied. See, Rosenfield v. Childs, 304 S.W.2d 391, 393 (Tex.Civ.App.—Texarkana 1957, no writ). Whenever a defendant files an original or amended plea of privilege, it is an acknowledgement by that defendant that the trial court has jurisdiction to independently determine the plea of privilege. See, McLemore v. Star Finance Co., 430 S.W.2d 913, 916 (Tex.Civ.App.—Dallas 1968, no writ). The venue proceedings in this Court are a whole new ballgame? Although plaintiffs have their burden of proof, the defendants have theirs. As stated by Askew and Hedges, 1 Texas Practice Guide—Civil Pretrial, § 6:116:
Even if the
plaintiff has not established by prima
facie proof that venue is proper
in the county it has selected, the defendant still has the burden to establish
that venue is proper in the county to which it seeks a transfer. Kimmell
v. Leoffler, 791 S.W.2d 648, 653
(Tex.App.—San Antonio 1990, writ denied).
This burden is met by:
·
Defendant’s
timely filing a proper motion to transfer; and
·
Defendant’s
making prima facie proof of any of its own venue facts
specifically denied by the plaintiff.
As the Court stated in Geochem Tech Corp. v. Verseckes, 962 S.W.2d 541, 543 (Tex. 1998):
A party seeking a transfer has the burden to
make prima facie proof that venue is maintainable in the county to which
transfer is sought. Id. Thus, the pleadings at any given point in
time after a motion to transfer is filed may or may not establish a prima facie
case of proper venue, depending on what has been filed by the plaintiff and
what has been filed by the defendant.
If these defendants have failed to make prima facie proof in Orange County and Jefferson County on their motions to
transfer venue, as Plaintiffs contend, then venue should have been retained in
those counties where Plaintiffs filed their lawsuit. In this case, that is Jefferson County!
Professor
J. Patrick Hazel, in his book on Texas
Venue, sets out the various
circumstances in which a trial court would properly retain venue in the county
of suit as a result of neither party bearing their burdens of proof:
This essentially indicates that neither
plaintiff nor defendant has shown venue to be proper either in the county
where the suit was filed or the county to which transfer was sought. There is more to this which is discussed in
“5” below. At this point we must simply
assume that neither side has done what it should. This can happen as follows: (1) both parties pleaded venue facts; both
parties specifically denied the other’s pleaded venue facts; and neither party
made prima facie proof; (2) plaintiff pleaded venue facts,
defendant specifically denied those venue facts; and plaintiff failed to make prima facie proof, but defendant failed to plead venue facts; (3) plaintiff failed
to plead venue facts; defendant pleaded venue facts; plaintiff specifically
denied those venue facts; and defendant failed to make prima facie proof; or (4) neither plaintiff nor defendant pleaded any venue facts
but defendant did timely file a motion to transfer venue.
* * * * *
If no new proof is presented of venue being
proper where the suit is filed or where defendant seeks to have it transferred,
defendant does not seek to transfer to another county, and plaintiff does not
take a nonsuit, it would seem that the only recourse for the trial court will
be to look to the general venue rule to see if there is a county where the (or
“a”) natural person defendant resided, or where all or a substantial part of
the events or omissions giving rise to the claim occurred, or where some
defendant which is not a natural person had a principal office. If that happens to be the county where the suit
is filed, the trial court should retain it; if that is the county to which
defendant sought transfer, then the transfer should be made to that county; and
if it is neither, then the trial court should be free to transfer to any new
county where venue is proper.
Hopefully, this cannot be challenged on appeal due to the waiver by the
parties.
(pg. 124-125, 126)
In both Orange
and Jefferson Counties, these defendants have failed to bear their burden of
presenting even prima facie proof of their venue allegations. Attached are the various motions or amended
motions to transfer venue filed in Orange County in January 2000. Shell’s amended motion is Exhibit “D;”
Pennzoil-Quaker State’s amended motion is Exhibit “E;” Delta Distributors,
Inc.’s amended motion is Exhibit “F;” Humco Holding Group, Inc.’s motion to
transfer venue is Exhibit “G.” The order
to transfer venue of June 20, 2000 is Exhibit “H.” The docket sheet from the District Court of
Orange County, Texas, showing the dates of filing of 148 documents is Exhibit
“I.” None of these documents attached as
exhibits or any other evidence presented to the trial court at the venue
hearing established a prima facie case of the venue contentions of these
defendants. There is no issue preclusion
in this case on questions of proper venue.
Likewise, there is no prima
facie case in the case at bar
because of the fatally defective affidavits of Gregg C. Laswell and
Margaret T. Brenner.
A case on point is Peysen v. Dawson, 974 S.W.2d 377, 380 (Tex.App.—San Antonio 1998, no pet.). There the court held that a voluntary
non-suit did not “conclusively” or “judicially” fix venue and the defendants
had failed to sufficiently deny venue facts so as to shift any burden to the
plaintiff to make out a prima
facie proof of venue facts. The court held in part:
In response, State Farm and Dawson denied
that Peysen pleaded sufficient venue facts to maintain venue in Collin County,
denied that any part of Peysen’s cause of action accrued in Collin County, and
denied that venue was proper in Collin County as to either defendant. Nowhere did either Dawson or State Farm
“specifically deny” that State Farm was “a foreign corporation, joint stock
company, or association not incorporated by the laws of this state and doing
business in this state, with an agency or representative and/or its principal
office in Collin County, Texas. . . .”
We therefore hold Dawson and State Farm failed to shift the burden to
Peysen to make prima facie proof of this pleaded venue fact. See
Maranatha Temple, Inc. v. Enterprise Prods. Co., 833 S.W.2d 736, 740 (Tex.App.—Houston [1st Dist.] 1992,
writ denied) (“[a] ‘specific denial’ of a venue fact requires that the fact itself be denied” (emphasis in original)), cited with apparent approval in Wilson, 886 S.W.2d at 260; see
generally J. Patrick Hazel, Texas Venue 79-80 (1996). To hold otherwise would vitiate the
requirement of a specific denial.
These defendants
have likewise not filed any “specific denial” of venue facts as pled by the
plaintiffs.
Whenever it appears that the facts
on a question such as this have not been properly developed, appellate courts
are not required to render judgment transferring a cause. As stated in Members Mutual Ins. Co. v. Tapp, 437 S.W.2d 439, 440-441 (Tex.Civ.App.—Houston [14th Dist.]
1969, no writ):
This Court is not impelled, however, to
render judgment transferring this cause.
It does not appear that the essential considerations have been made
available to the trial court for a proper disposition of the venue issue. (W)here a case has not been fully developed,
and where it has been tried on the wrong theory, the judgment of the appellate
court should be one of remand and not one of rendition. Jackson
v. Hall, 147 Tex. 245, 214 S.W.2d
458; Central Surety & Ins.
Corp. v. First Nat’l Bank of Fort Worth, Tex.Civ.App. 367 S.W.2d 377, no writ hist. We are of the opinion that the ends of
justice will be better served by remanding this case for a new trial on the
issue of venue.
As an
alternative theory, this Court, after determining that the venue question was
not properly tried in the Orange County district court, can decide that the
issue there was not procedurally or substantively resolved. If so, a separate venue hearing in Jefferson
County is appropriate both procedurally and in order to accomplish the ends of justice.
VI.
Defective Affidavits
Not only is the Motion to Transfer Venue fatally defective, but the affidavits of Gregg C. Laswell and Margaret T. Brenner are fatally defective. Both affidavits state that the facts stated in the affidavits “are all true and correct to the best of my knowledge.” Such affidavits by the attorneys for the defendants in this case have been held to be fatally and notoriously defective for more than a quarter of a century. See, Burke v. Satterfield, 525 S.W.2d 950, 954-955 (Tex. 1975). See also, Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994). The affidavits do not create a fact question or establish any prima facie proof. The plaintiffs’ prima facie proof by affidavit that venue is maintainable in Jefferson County is not subject to rebuttal, cross-examination, impeachment, or disproof. See, In re Missouri Pacific R. Co., 998 S.W.2d 212, 216 (Tex. 1999).
VII.
Plaintiffs’ Amended Original Petition
Any amended original petition filed by the plaintiffs more than seven days before the venue hearing is properly before the trial court. See, Stewart v. Whitworth, 453 S.W.2d 875, 879 (Tex.Civ.App.—Houston [1st Dist.] 1970, writ dism.). The failure to specifically deny any pleaded venue facts in Plaintiffs’ amended petition is an admission of those facts for purposes of venue. See, Moriarty v. Williams, 752 S.W.2d 610, 611-612 (Tex.App.—El Paso 1988, writ den’d.).
VIII.
Special Exceptions
A motion to transfer venue may be tested by special exceptions where the insufficiency of the motion appears on its face. See, Peacock v. Bradshaw, 194 S.W.2d 551, 553-554 (Tex. 1946). Such exceptions can be included as part of the response. See, Cowan v. State, 356 S.W.2d 170 (Tex.Civ.App.—Austin 1962, writ dism. w.o.j.). See also, 72 Tex.Jur. 3d Venue § 145. Paragraph III above sets out the reasons why this special exception is appropriate.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the plaintiffs, William L. Simpson and Eva Simpson, pray that this Court will deny the Motions to Transfer Venue and will retain jurisdiction of this case and order the trial to be held in Jefferson County, Texas. Plaintiffs further pray that this Court will grant unto them all else that they are entitled to, either in law or in equity.
Respectfully
submitted,
REAUD,
MORGAN & QUINN, L.L.P.
801
Laurel Street
P.
O. Box 26005
Beaumont,
Texas 77720-6005
(409)
838-1000
FAX
(409) 833-8236
By
______________________________
Glen
W. Morgan
State
Bar No. 14438900
LAW
OFFICES OF HERSCHEL L. HOBSON
2190
Harrison Avenue
Beaumont,
Texas 77701
(409)
838-6410
FAX
(409) 838-6084
By
Herschel
L. Hobson
State
Bar No. 074460
Attorneys
for Plaintiffs
I hereby certify that on the _____ day of March, 2003, I have served a true copy of the above and foregoing on the adverse parties by forwarding a copy of same to all opposing counsel herein.
Glen W. Morgan