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Orion Enterprises6/26/1996
June 26, 1996
WRIT OF MANDAMUS CONDITIONALLY GRANTED.
Orion Enterprises seeks a writ of mandamus ordering Judge John A. Pope III to exercise his jurisdiction to reconsider another court's order denying motions to transfer venue. For the reasons discussed below, we conditionally grant the writ.
Facts On August 3, 1995, Rebecca Molina, individually and as representative of the estate of Robert Molina, Sr.; Robert Molina, Jr.; Mario Molina; and Michelle Molina filed suit in Starr County against Todd Edward Peterson; Peterson's employer, Orion Enterprises, Inc.; StarTran, Inc.; and Ford Motor Company for wrongful death and product liability claims arising out of a car accident in Travis County.
In pleading the venue facts, the Molinas alleged that they and Peterson were residents of Travis County, StarTran is a Texas corporation with a registered agent in Travis County, and the remaining corporate defendants are foreign corporations with registered agents in Texas. The Molinas did not allege either that one of the corporate defendants maintained its principal place of business in Starr County or that venue was otherwise proper. All of the defendants filed motions to transfer venue alleging that venue was neither mandatory nor permissive in Starr County and seeking a transfer to Travis County. The Molinas responded that venue was permissive in Starr County because Ford maintains a retail dealership there, and this dealership acts as its agent and representative. See Act of June 17, 1983, 68th Leg., ch. 322, Section(s) 3(g), 1983 Tex. Gen. Laws 2119, 2123 (codified, prior to repeal, at section 15.037 of the Texas Civil Practice and Remedies Code).
The case was assigned to the 229th Judicial District Court, Judge Ricardo H. Garcia presiding, and it was before him that the venue motions were originally set for hearing on November 29, 1995. However, at the request of the Molinas' attorney and with the agreement of all other parties, the hearing date was reset first to January 8 and later to January 29, 1996. By this time, the case had been transferred for purely administrative reasons to the newly-created 381st Judicial District Court, Judge John A. Pope III presiding. See Tex. Gov't Code Section(s) 24.303 (Vernon Supp. 1996) (creating the 381st Judicial District Court); see also Tex. Gov't Code Section(s) 24.303(a) (Vernon 1986) (transfer of cases between district courts within same county). Accordingly, when the district clerk confirmed the January 29 setting by letter dated January 22, 1996, she also confirmed that the venue motions were assigned to the 381st Judicial District Court.
At the hearing on January 29, Judge Pope announced-to the surprise of all assembled-that Judge Garcia had denied the venue motions by a signed, written order dated January 8. Immediately thereafter, the defendants requested reconsideration. Judge Pope set the reconsideration hearing for February 9. Again at the request of the Molinas' attorneys and with the agreement of all other parties, the reconsideration hearing was reset for February 22, 1996.
At the reconsideration hearing on February 22, the Molinas opposed reconsideration on the ground that an affidavit by Judge Garcia, file-stamped just two days before the hearing, established that the venue motions were not removed from his January 8 docket; therefore, he decided them on the merits based upon the briefs and proof previously submitted. Judge Pope overruled the defendants' written objection to Judge Garcia's affidavit and denied reconsideration. However, Judge Pope stated on the record that "if it was wasn't for that affidavit I would rule and grant it and ... set aside the order." In line wi
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