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Marathon Corp. v. Pitzner8/2/2001
t, 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. Act of May 2, 1983, 68th Leg., R.S., ch. 385, § 1, 1983 Tex. Gen. Laws 2119, repealed by Act of May 8, 1995, 74th Leg., R.S., ch. 138, § 10, 1995 Tex. Gen. Laws 981.
Appellant and all the other defendants properly filed motions to transfer venue first, then filed their answers and other pleadings "subject to" their motions to transfer venue. Marathon's motion to transfer venue was filed on September 8, 1995. A hearing on the motion was set for October 20, 1995; however, Marathon failed to appear at the hearing. On appellee's motion, the hearing was reset for January 16, 1996. When Marathon again failed to appear, the trial court reset the hearing for April 18, 1996.
At the April 18, 1996 hearing, York filed a motion to withdraw its venue challenge. Hull's attorney announced that she "declined" to argue the venue question, but asked permission to read into the record an order from the probate court of Dallas County ordering the transfer of the instant case to that court, and ordering this case consolidated with the Pitzner guardianship matter pending in that court. Speaking on behalf of PEG, Marathon, ECSI, and Hull, she asked the court to "pass" the venue hearing. Appellee's counsel opposed resetting the hearing, arguing that, under the venue rules, if there was venue as to one defendant, there was venue as to all defendants. After reconfirming that Hull's attorney did not want to argue her venue motion, the court denied her request to pass the venue hearings as to the other defendants, and signed an order finding that venue was proper in Hidalgo County as to all defendants.
On May 31, 1996, Marathon obtained a hearing date of June 25, 1996, to present its motion to transfer venue; a hearing for the approval of a settlement was also set at that time. On June 17, 1996, Marathon filed a "Motion to Reconsider the April 18, 1996 Order and Brief in Support of Motion to Transfer Venue." Marathon's attorney appeared at the June 25, 1996 hearing, but did not argue the motion to reconsider the venue issue. The trial court stated, "I'll review the briefs submitted by [Marathon]. If I believe that I need something else, I will go ahead and reset - actually, give you a resetting." No further hearing on the motion to reconsider transfer of venue was ever set by the court or requested by Marathon. The motion to reconsider was not acted on by the trial court.
2. Standard of Review
Texas Civil Practice and Remedies Code section 15.064(b) was unchanged by the 1995 amendments. It provides that:
n appeal from the trial on the merits, if venue was improper it shall in no event be harmless error and shall be reversible error. In determining whether venue was or was not proper, the appellate court shall consider the entire record, including the trial on the merits. Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b) (Vernon 1986).
An appellate court is obliged to conduct an independent review of the entire record to determine whether venue was proper in the ultimate county of suit:
This review should be conducted like any other review of a trial court's fact findings and legal rulings, except that the evidence need not be reviewed for factual sufficiency. . . . Therefore, if there is any probative evidence in the entire record, including trial on the merits, that venue was proper in the county where judgment was rendered, the appel
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