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Marathon Corp. v. Pitzner8/2/2001
late court must uphold the trial court's determinations. If there is no such evidence, the judgment must be reversed and the case remanded to the trial court. The error cannot be harmless, according to the statute. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993).
The law in Texas has long been that any party to a lawsuit may expressly or impliedly waive rights conferred upon him by a venue statute. In the Interest of S.D., 980 S.W.2d 785, 759 (Tex. App.-San Antonio 1998, pet. denied); Grozier v. L-B Sprinkler & Plumbing Repair, 744 S.W.2d 306, 309 (Tex. App.-Fort Worth 1988, writ denied). The matter of venue is a personal privilege which may be waived. S.D., 980 S.W.2d at 759; Grozier, 744 S.W.2d at 309; Mooney Aircraft, Inc. v. Adams, 377 S.W.2d 123, 125 (Tex. Civ. App.-Dallas 1964, no writ). An express waiver is shown by clear overt acts evidencing an intent to waive, while an implied waiver occurs when a party, often inadvertently, takes some actions inconsistent with his position on the venue issue and, therefore, is held to have waived his rights thereon. S.D., 980 S.W.2d at 759; Grozier, 744 S.W.2d at 309.
We hold that Marathon expressly waived its motion to transfer venue by failing to present those issues to the trial court. Marathon had an opportunity to present those issues at the April 18, 1996 hearing, but it expressly declined to do so. Instead, it chose to rely exclusively on the Dallas County Probate Court's order to transfer. By doing so, Marathon waived all venue issues, except those concerning the Dallas County Probate Court's order of transfer, and thereby failed to preserve any other venue issues for appellate review. Tex. R. App. P. 33.1.
3. The Dallas County Probate Court's Order of Transfer
In its sixth issue, Marathon also contends the trial court erred in failing to transfer this case to the Dallas County Probate Court. On April 15, 1996, just three days before the hearing on York's motion to transfer venue, ECSI and Hull obtained the following order from Judge Nikki De Shazo of the Dallas County Probate Court, in Cause No. 9404427-P, In the Matter of the Guardianship of John C. Pitzner, an Incapacitated Person:
ORDER
Before the Court is the Motion of Environmental Comfort Systems, Inc. d/b/a Country Refrigeration and Robert S. Hull a/k/a "Country" Hull for Transfer and for Consolidation of Proceedings Pursuant to § 608, Texas Probate Code (hereinafter "Hull's Motion"). After carefully reviewing the pleadings, Hull's Motion and response filed thereto, together with all evidence presented, and having carefully heard and considered the arguments of counsel, the Court is of the opinion that Hull's Motion should be, in all things, GRANTED.
It is therefore ORDERED that the Motion of Environmental Comfort Systems, Inc. d/b/a Country Refrigeration and Robert S. Hull a/k/a "Country" Hull for Transfer and for Consolidation of Proceedings Pursuant to § 608, Texas Probate Code is GRANTED. The lawsuit styled "John C. Pitzner, a Mentally Incompetent Person, By and Through His Next Friend and Guardian Steven Pitzner v. York International Corporation, Marathon Corporation d/b/a Honda-Suzuki North, Environmental Comfort Systems, Inc. d/b/a Country Refrigeration, Robert S. Hull a/k/a "Country" Hull, and Professional Employer's Group, Inc. Jointly and Severally," bearing Cause No. C-3773-95-G, currently pending in the 370th Judicial District Court of Hidalgo County, Texas is transferred to the Probate Court of Dallas County, Texas, and consolidated with the guardianship proceedings currently pending in this Court in Cause No. 94-4427-P, as Cause No. 94-4427-P(A);
It is further ORDERED that the Cl
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