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Brookshire Grocery Co. v. Smith2/20/2003
Robert Elton Smith filed suit in 1994 against appellant, Brookshire Grocery Company, his nonsubscriber employer, for injuries he sustained on the job in 1992. Finding Brookshire Grocery negligent, a jury returned a verdict in Smith's favor. Brookshire Grocery brings three issues on appeal: venue, an evidentiary ruling, and the calculation of prejudgment interest. As we conclude none of the issues presented requires reversal, we affirm the trial court's judgment.
Venue
Smith initially filed suit against Brookshire Grocery Company in Jefferson County, Texas. Brookshire Grocery filed a motion to transfer venue. Before any hearing was held on the venue motion, Smith nonsuited the claim. He then filed suit in Hardin County against Brookshire Grocery Company and Brookshire Brothers, Inc. ("Brookshire, Inc.") Although Brookshire Grocery filed a motion to transfer venue in the Hardin County suit, Brookshire, Inc. did not challenge venue and filed only an answer. Shortly thereafter, Smith nonsuited Brookshire, Inc. The trial court denied Brookshire Grocery's venue motion.
Appellant failed to include a reporter's record of the hearing on the motion to transfer venue. Smith maintains this failure requires our rejection of appellant's venue issue. The venue hearing was conducted in November 1994, but the trial was not held and the judgment not signed until April 2002. On June 5, 2002, Brookshire Grocery requested the venue hearing be included in the reporter's record on appeal. In a letter dated July 26, 2002, the court reporter explained she no longer had notes of the 1994 venue hearing. By statute, the court reporter is required to preserve the notes of the hearing for "three years from the date on which they were taken[.]" Tex. Gov't Code Ann. § 52.046(a)(4) (Vernon 1998). The Texas Supreme Court has stated that " f a litigant has not requested the reporter to prepare a statement of facts within three years, nor specifically requested that the notes of a proceeding be preserved beyond three years, then the litigant is not free from fault if the notes are destroyed as the statute authorizes." Piotrowski v. Minns, 873 S.W.2d 368, 371 (Tex. 1993); see Ganesan v. Vallabhaneni, No. 03-01-00288-CV, 2002 WL 437279, at *1-2 (Tex. App.--Austin Mar. 21, 2002, pet. denied).
We need not decide venue on this preservation issue, however. Brookshire Grocery has asserted on appeal, supported by its attorney's affidavit, that no evidence was offered or admitted at the venue hearing. Appellant's assertion is not disputed by Smith, and we take as true appellant's uncontradicted statement of fact. See Tex. R. App. P. 38.1(f). The clerk's record is complete. While we emphasize the importance of a complete record of the trial court proceedings and arguments presented at the venue hearing, we will address the merits of the venue issue in this case on the record presented here.
The 1985 venue statute applies in this case. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3246-3251. When suit was filed in 1994, section 15.061, quoted below, set out the following rule regarding venue over multiple defendants:
When two or more parties are joined as defendants in the same action or two or more claims or causes of action are properly joined in one action and the court has venue of an action or claim against any one defendant, the court also has venue of all claims or actions against all defendants unless one or more of the claims or causes of action is governed by one of the provisions of Subchapter B [mandatory venue provisions] requiring transfer of the claim or cause of action, on proper objection, to the mandatory county.
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