Motion for Change of Venue in JERRY BOSTICK vs. BAYLOR SCOTT & WHITE HEALTH, et al| Trellis.Law

On November 08, 2019 a Motion-Secondary was filed involving a dispute between Bostick, Jerry, and Baylor Scott & White Health, Door Control Services Inc, Door Control Services Llc, Door Services Corporation, Horton Automatic Door Corporation, Horton Automatics Inc, Overhead Door Corporation, Scott & White Healthcare, for OTHER (CIVIL) in the District Court of Dallas County.

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FILED
5/26/2020 10:07 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Rosa Delacerda DEPUTY

CAUSE NO. DC- 1 9- 1 8052

JERRY BOSTICK IN THE DISTRICT COURT OF

BAYLOR SCOTT & WHITE HEALTH,
OVERHEAD DOOR CORPORATION, OOOOOOOOOQOOQOOOOOOOOOOOOOOQOOQOO

DALLAS COUNTY, TEXAS
DOOR CONTROL SERVICES, LLC,
DOOR CONTROL SERVICES, INC,
HORTON AUTOMATICS, INC., HORTON
AUTOMATIC DOOR CORPORATION
AND SCOTT & WHITE HEALTHCARE 68th JUDICIAL DISTRICT

DEFENDANTS BAYLOR SCOTT & WHITE HEALTH AND
SCOTT & WHITE HEALTHCARE’S REPLY BRIEF IN SUPPORT OF THEIR
MOTION TO TRANSFER VENUE

TO THE HONORABLE JUDGE OF SAID COURT:

Defendants Baylor Scott & White Health and Scott & White Healthcare (hereinafter,

collectively “BSW”) ﬁle this Reply Brief in Support of their Motion t0 Transfer Venue. In

support thereof, BSW would respectfully show the Court as follows:

SUMMARY OF REPLY
This Court has already partially heard the arguments set forth between the parties on

venue issues during the hearing on BSW’S Motion to Quash. As the Court will recall, this is not

your standard motion t0 transfer venue With arguments centering around principal ofﬁce

testimony. Indeed, as mentioned in Plaintiffs Response, BSW stipulated—for purposes 0f this

lawsuit only—that BSW has a principal place of business in Dallas County for venue purposes.

This is because BSW’s principal ofﬁce does not affect the Court’s venue ruling in this case as it

is immaterial to the legal, forum—shopping issues outlined in Texas Supreme Court caselaw. As a
matter of law, the Court should transfer this case to Burnet County because the venue facts

alleged in BSW’s ﬁrst Motion t0 Transfer Venue (in Plaintiff’s ﬁrst lawsuit in Travis County)

were not disputed by Plaintiff and must be taken as true. The only location BSW has requested
this case be transferred is to Burnet County. Neither Plaintiff nor the Court on its own motion are

allowed t0 transfer the case t0 any other destination, even if that venue would otherwise be

proper. Finally, even beyond the legal requirements that mandate a transfer t0 BSW’s selection

0f venue, the logical choice for this case to be tried is in Burnet County, as it is the most

convenient location for all parties and Witnesses.

II.

THE COURT SHOULD TRANSFER THIS CASE TO BURNET COUNTY AS A
MATTER OF LAW

A. Plaintiff improperly interprets GeoChem.

Plaintiff focuses 0n the ﬁnal outcome 0f the GeoChem case Without acknowledging the

basis and reasoning behind the Texas Supreme Court’s decision. BSW showed the Court its

demonstrative PowerPoint slides during the previous Motion to Quash hearing, but it is also

attaching again herein for the Court’s convenience. [See Exhibit A].

In GeoChem, the plaintiff sued the defendants in a county 0f improper venue—Dallas

County. GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 542 (TeX. 1998). [See Exhibit B—

copy of GeoChem case]. When defendants ﬁled their motions to transfer venue t0 Stephens

County, one defendant also claimed to reside in both Stephens and Van Zandt counties. Id.

Plaintiff did not deny these venue facts and nonsuited the case. Id. The “state of the record” at

the time of the nonsuit revealed that the venue facts alleged by defendants—residing in Van

Zandt and Stephens counties—must be taken as true. Id. at 543. At this point, Plaintiff had two

venue options on where to reﬁle his lawsuit: Van Zandt County or Stephens County. The Texas

2
Supreme Court found plaintiff was in compliance with the venue statutes when it reﬁled in Van

Zandt County. Id. at 544.

In this case, BSW ﬁled its ﬁrst motion t0 transfer venue, admitting that it resided in Bell

County and that all the events made basis of the lawsuit happened in Burnet County. Plaintiff did

not deny these venue facts and nonsuited the case. The “state of the record” at the time of the

nonsuit revealed that the venue facts alleged by BSW—residing in Bell County and admitting

Burnet County as proper due to the events made basis 0f the suit—must be taken as true.1 Those

venue facts “became established when the nonsuit was ﬁled.” Id. at 543. At this point, Plaintiff

had two venue options on Where to reﬁle his lawsuit: Bell County or Burnet County. Plaintiff did

neither when he reﬁled in Dallas County?

Plaintiff’s Response relies heavily 0n distinctions between mandatory and general venue

provisions to explain the GeoChem opinion. It is true that in GeoChem, the parties were arguing

over two counties where mandatory venue provisions applied to both, whereas in this case, only

general venue statutes are at issue. However, t0 make the sweeping argument that because of this

distinction GeoChem is not applicable to this case would be t0 ignore the Texas Supreme Court’s

analysis altogether. The Texas Supreme Court does not base its opinion on mandatory versus

general 0r permissive venue. The Court could have speciﬁed that its holding was only for

mandatory venue statutes and not applicable t0 general 0r permissive venue rules for some

unknown reason. There is no such carve out. Moreover, any such distinction would not make

sense based 0n the reasoning behind the Court’s broad, declaratory statements about “state of the

record” and “the venue facts alleged in the motion t0 transfer are taken as true,” Without any

1
See infra Section C as t0 the other statements made in BSW’s motion to transfer venue regarding principal ofﬁces
for other defendants.
2
It does not matter that BSW has stipulated—for this lawsuit only—that it has a principal ofﬁce in Dallas for
purposes 0f venue.
mention of how or why this would only apply in cases involving mandatory venue statutes.

Indeed, the first paragraph of the opinion summarizes the issue and holding:

The issue in this case is whether a nonsuit fixes venue in the county to
which transfer is sought when the nonsuit is taken after a motion to
transfer has been filed but before a ruling on venue has been made. ….

We hold that the effect of a nonsuit depends on the state of the record at
the time it is filed and that under the facts of this case, venue was not fixed
solely in Stephens County, a county to which transfer was sought.

Id. at 542. There is no reservation that the issue before the Court only applied to mandatory

venue statutes.

However, the Court does specify in its holding that it must look to the “state of the

record” at the time the nonsuit is filed, explicitly looking at the situation of when a nonsuit was

taken before a ruling on venue has been made. Id. Plaintiff’s Response also seems to be arguing

that because his motion was not ruled upon, he can file his second suit anywhere he wants as

long as it is also one of proper venue. See Plaintiff’s Response, p. 4. Plaintiff points to a couple

sentences from GeoChem and emphasizes “ruled upon.” Id. However, under this argument, the

entire GeoChem opinion explaining the origins of venue practice from former plea of privilege

rules and the “state of the record” analysis becomes pointless. If a plaintiff can nonsuit his first

action and subsequently refile in any venue he chooses, as long as it is also proper, then there is

no need to look at “the state of the record.” If this were true, the Court in GeoChem could have

easily held that plaintiff’s decision to refile his second suit in Stephens County was proper

because venue was proper in Stephens County, and simply left it at that. Instead, the Court

created the “state of the record” analysis and, under this analysis with the GeoChem facts, the

outcome allowed plaintiff to refile in Stephens County. In the current case, under the “state of the

record” analysis, Plaintiff is not allowed to refile in Dallas County. The Bell and Burnet County

4
facts became established at the time 0f Plaintiff’s nonsuit. The state 0f the record did not include

Dallas County.

B. Texas has repeatedly prohibited forum shopping.

Subsequent to GeoChem, the Texas Supreme Court issued another opinion admonishing

forum shopping practices in Texas. In re Team Rocket, L.P., 256 S.W.3d 257, 260-261 (Tex.

2008). [See Exhibit C — copy 0f Team Rocket case]. In Team Rocket, the Court looked at

whether a plaintiff was allowed t0 use the procedural vehicle of nonsuiting a case to avoid

unfavorable venue rulings. Id. at 259. After the plaintiff sued the defendant in Harris County, the

defendant moved t0 transfer venue t0 Williamson County, Which was granted by the Harris

County trial court. Id. However, when the plaintiff nonsuited the case and reﬁled in Fort Bend

County (Which was also a county of proper venue), the Fort Bend County trial court refused t0

enforce the prior venue order issued by the Harris County trial court. Id. The Texas Supreme

Court found the Fort Bend County trial court abused its discretion. Id. at 260.

“To interpret the [venue] provisions otherwise would allow forum shopping, a practice

we have repeatedly prohibited.” Id. (emphasis added) (citing In re Autonation, Ina, 228 S.W.3d

663, 667-68 (Tex. 2007)). “If a plaintiff has an absolute right to nonsuit and reﬁle, as [plaintiff]

contends, nothing could stop him ﬁom ﬁling in each 0f Texas’s 254 counties until he ﬁnds a

favorable venue.” Id. at 260-61. “We do not believe the Legislature intended such a situation.

Indeed, the plea of privilege practice that existed before amendment 0f the predecessor to

Section 15.064 prevented that outcome.” Id. at 261 (citing H.H. Watson C0. v. Cobb Grain Ca,

292 S.W. 174, 177 (TeX. Comm’n App. 1927, judgm’t adopted); Ruiz v. Conoco, Ina, 868

S.W.2d 752, 756-57 (Tex. 1993)). “Though we no longer have a plea of privilege under our

statutes or rules, the rationale 0f ‘protect[ing] defendants from the harassment and expense of
several contests on the issue ofvenue’ remains.” Id. (citing First Nat’l Bank in Dallas v. Hannay,

67 S.W.2d 215 (Tex. 1933)).

In Team Rocket, the trial court ruled 0n venue in the ﬁrst lawsuit before plaintiff

nonsuited the case. In GeoChem and the current lawsuit with BSW, plaintiff nonsuited the case

before the trial court had the opportunity t0 make a ruling. Plaintiff places irrelevant emphasis 0n

this, but the reasoning 0f the Texas Supreme Court in Team Rocket remains the same for all three

cases: to disallow forum-shopping and inappropriate loop-arounds ofthe venue rules.

C. Venue cannot be transferred to Plaintiffs second choice or on the Court’s own
motion.

During the previous Motion to Quash hearing, this Court questioned Whether he could

transfer the case to a venue other than those requested in Defendants BSW and Door Control

Services, LLC’s motions (Burnet and Denton, respectively). In BSW’s ﬁrst motion to transfer

venue, While denying venue was proper in Travis County and admitting to its principal ofﬁce in

Bell County, BSW also stated that none 0f the other Defendants had principal ofﬁces in Travis

County. Based on its research With the Texas Secretary of State, BSW listed several of the other

named Defendants’ apparent principal ofﬁces (present and prior).3 Importantly, some 0f the

named Defendants appeared to be forfeited or dissolved companies that were no longer in

existence at the time 0f the events surrounding this lawsuit, and thus, the principal ofﬁces listed

were 0f their previous principal places 0f business. These entities were not only improperly

joined Defendants, but they had n0 principal ofﬁces to evaluate venue at the time Plaintiff’s

cause of action accrued. See Tex. Civ. Prac. & Rem. Code § 15.006; see also Ford Motor C0. v.

3
Whilemakes sense for a party t0 not be allowed t0 run away ﬁom its own admissions, made 0n its own behalf, in
it

same does not necessarily hold true for allegations made about other parties. Indeed, “admissions”
pleadings, the
being made 0n behalf 0f a separate party could lead t0 absurd results and even promote sham pleadings t0
circumvent venue rules.
Johnson, 473 S.W.3d 925, 930 (TeX. App.—Dallas 2015, pet. denied) (holding “the relevant date

for determination 0f a principal ofﬁce is when the accident occurred”).

Even if all of the named defendants were existent, active entities and had undisputed

principal ofﬁces in the locations identiﬁed in BSW’S motion, the Texas Supreme Court has

disallowed plaintiffs and the trial court to transfer the case t0 a venue 0f their choosing instead 0f

t0 the venue choice of the defendant. See In re Masonite Corp, 997 S.W.2d 194 (TeX. 1999).

[See Exhibit D — copy ofMasom'te case].

In Masonite, several plaintiffs ﬁled similar suits against Defendant Masonite in Jim Hogg

County and Duval County. Id. at 195. But in neither the Jim Hogg County suit nor the Duval

County suit were all the homeowner plaintiffs residents of the respective counties. Id. at 196.

Masonite ﬁled motions t0 transfer venue of the non-resident homeowners’ claims to Dallas

County, the county of its principal ofﬁce. Id. In response, the homeowners ﬁled amended

petitions and motions to sever, asking the trial court to send the non—resident homeowners to

their respective counties 0f residence. Id. “The trial court denied both the motions t0 transfer

venue and the motions to sever, but then ‘on its own motion,’ severed the claims of the non-

resident homeowners and transferred them to the counties 0f their respective residences. None 0f

these counties was the county selected by [defendant] Masonite.” Id.

“Functionally, the nonresident plaintiffs asked the trial court t0 ﬁx their mistake and

transfer their claims to another county 0f their choice, not Masonite’s. The trial court has no

discretion, in effect, t0 grant the plaintiffs a transfer of venue; the plaintiffs had the ﬁrst choice,

but not the second, 0f a proper venue.” Id. at 197-98 (emphasis in original). “The fact that the

trial court stated that it was ‘acting on its own motion’ when it transferred venue of the

nonresident plaintiffs’ claims to the sixteen counties in which they respectively reside does not
change, but in fact reinforces our conclusion that the trial court abused its discretion. A trial court
has no discretion t0 transfer venue 0n its own motion, even t0 a county of proper venue.” Id. at

198. Instead, “the trial court must transfer venue to the county speciﬁed in the defendant’s

motion to transfer, provided that the defendant has requested transfer to another county 0f proper

venue.”Id. at 197.

The only venues sought by the two motions t0 transfer venue before this Court are Burnet

County and Denton County. BSW’S motion to transfer venue only seeks transfer to Burnet

County. Transferring the case t0 any other venue would be reversible error.

III.

THE COURT SHOULD TRANSFER THIS CASE TO BURNET COUNTY FOR
THE CONVENIENCE OF THE PARTIES

The most logical choice for this case to be tried is in Burnet County. This is a premises

liability and products liability slip-and-fall case that is being asked t0 be tried hundreds 0f miles

away ﬁom the location of the slip—and-fall. Plaintiff resides in Burnet County. The fact Witnesses

reside in Burnet County. The doctors and nurses who treated Plaintiff after his injury work and

reside in Burnet County or adjacent counties. Plaintiff’s Response ignores this and focuses on

things like having multiple choices of restaurants, hotels, and ﬂight times for experts (Who chose

to serve as retained experts). Plaintiff’s Response also makes the unsupported argument that

“[i]nherent in this action is the fact that testimony is required ﬁom experts in various specialties

Who reside outside the State of Texas” Without giving any explanation of why this would be the

case or any indication as t0 who or what non-Texan experts will require Dallas airports.

Plaintiff’ s Response at p.9.

Moreover, in the era of C0Vid-19, great weight must be given to the risk and

reasonableness 0f holding a trial in a location that would require numerous individuals, including
doctors, nurses, and healthcare providers to travel over 200 miles away from their home (likely

requiring them to stay in a hotel, increasing their potential for exposure) and extending the time

they are away from caring for patients in their medical profession/hospital, at a time when these

essential medical workers are vital to their community.

“A court’s ruling or decision to grant or deny a transfer under [Section 15.002(b), for the

convenience of the parties and witnesses] is not grounds for appeal or mandamus and is not

reversible error.” Tex. Civ. Prac. & Rem. Code § 15.002(c). Trial courts have traditionally used

forum non conveniens to transfer cases to the county where events arose and where parties or

witnesses live, and when this has happened, the appellate courts have uniformly not disturbed

these rulings. See, e.g., Garza v. Garcia, 137 S.W.3d 36, 38-40 (Tex. 2004) (finding that “it is

irrelevant whether a transfer for convenience is supported by any evidence. Hypothetically, a

trial judge could state there was no evidence for a convenience transfer, but grant it nonetheless,

and (except for perhaps reporting it to the Judicial Conduct Commission) there is very little we

could do about it.”).

The balance of interests overwhelmingly predominates in favor of transferring this case

to Burnet County. Plaintiff’s general assertions about Dallas being “more convenient and less

expensive to litigate” this case than Burnet is made without any support and is frankly

disingenuous. There is no evidence before this Court that transfer of this case to Burnet County

would be an injustice to any party. No party will suffer any injustice if this case is transferred to

the county where the alleged accident occurred and where almost all (if not all) of the witnesses

are located. The Court should transfer venue from Dallas County, Texas to Burnet County,

Texas.

9
WHEREFORE, PREMISES CONSIDERED, Defendants, Baylor Scott & White Health

and Scott & White Healthcare, pray the Court grant their Motion t0 Transfer Venue and that

venue of this entire action be transferred t0 Burnet County, Texas. Defendants BSW further pray
for such other relief, general and special, to which Defendants may show themselves justly

entitled at law 0r in equity.

Respectfully Submitted,

GERMER BEAMAN & BROWN PLLC
301 Congress Avenue, Suite 1700
Austin, Texas 78701
(5 12) 472-0288
(5 12) 472-9280 (Facsimile)

By: /s/Adam P. Simmons
Missy Atwood
State Bar No. 01428020
matwoodGDgermer-austin.com
Adam P. Simmons
StateBar No. 240884 1 3
asimmons@germer—austin.com

ATTORNEYS FOR DEFENDANTS,
BAYLOR SCOTT & WHITE HEALTH AND
SCOTT & WHITE HEALTHCARE

CERTIFICATE OF SERVICE

I hereby certify by my signature below that a true and correct copy of the foregoing

document was forwarded t0 all known counsel 0f record as set forth below in compliance With
the Texas Rules 0f Civil Procedure on this the 25th day ofMay, 2020.

Sally S. Metcalfe
METCALFE LAW, P.L.L.C.
901 South Mopac Expressway
Plaza One, Sute 300
Austin, Texas 78746
smetcalfe@metcalfe-law.com
ATTORNEY FOR PLAINTIFF

10
E.Leon Carter
Ruben Gandia
CARTER ARNETT, PLLC
8150 N. Central Expressway, Suite 500
Dallas, Texas 75206
lcarter@carterarnett.com
rgandia@carterarnett.com
ATTORNEYS FOR OVERHEAD DOOR CORPORATION,
HORTON AUTOMATICS DIVISION OF OVERHEAD
DOOR CORPORATION, AND DOOR SERVICES CORPORATION

Patrick F. Madden
Jennifer A. Cheek
Lauren M. Lopez
MACDONALD DEVIN ZIEGLER MADDEN KENEFICK & HARRIS, RC.
3800 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270-2084
PMadden@macdonalddeVin.com
JCheek@macdonalddeVin.com
LLopez@macdonalddeVin.com
ATTORNEYS FOR DEFENDANTS DOOR CONTROL
SERVICES, LLC AND DOOR CONTROL SERVICES, INC.

/s/Adam P. Simmons
Missy Atwood / Adam P. Simmons

4732377.1

11
EXHIBIT A
Cause N0. DC—19-18052

Jerry Bostick v. Baylor Scott & White Health, et al.

Dallas County, Texas

68th Judicial District

GERMER BEAMAN & BROWN PLLC
GeoChem Case
MTV
Stephens
. , ,
Dallas
Sult 1 : Plalntlff Defendants

- Plaintiff does not
deny Van Zandt
2 MTV venue facts taken as true
Defendants, venue facts

-
Plaintiff non—suits suit 1
Stephens \/
Van Zandt \/
Harris X
. . .
Van Zandt I

Sult 2: P1a1nt1ff Defendants I Trav1s X
Limestone X
X

GERMER BEAMAN & BROWN PLLC
Our Case
MTV
Bumet
. . .
TraV is ,x’"
Sult 1 : Plalntlff Defendants

- Plaintiff does not
deny Bell
z MTV venue facts taken as true
Defendant,s venue facts

-
.

Plaintiff non-sults Su1t
.

1
Burnet V
Ben x/
Harris X
Dallas
.

Sult 2:
.

P1a1nt1ff
.

Defendants
I Dallas X
Limestone X
X

GERMER BEAMAN & BROWN PLLC
EXHIBIT B
GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541 (1998)
41 Tex. Sup. Ct. J. 441

[2] Venue 6= Hearing and determination
i“
KeyCite Yellow Flag - Negative Treatment A11 venue facts, when properly pleaded, shall
Distinguished by In re Pepsico, Inc., Tex.App.-Texarkana, October 17, 2002
be taken as true unless speciﬁcally denied
962 S.W.2d 541 Vernon's Ann.Texas Rules
by adverse party.
Supreme Court 0f Texas.
Civ.Proc., Rule 87, subd. 3(a).

GEOCHEM TECH CORPORATION, Petitioner,
10 Cases that cite this headnote
V.

Michael S. VERSECKES, GeoServ Company,
Inc., Breckenridge Exploration Company, Inc.,
[3] Venue % Necessity
Venue 0? Counter afﬁdavits and other
Johnny L. Rowe and James T. Clay, Respondents.
evidence

No. 96—1121. When venue fact is speciﬁcally denied, party

|
pleading fact must submit supporting afﬁdavits
Feb. 13, 1998. or otherwise make prima facie proof. Vernon's

Ann.Texas Rules Civ.Proc., Rule 87, subd. 3(a).
Synopsis
Action was brought for damages and injunctive relief relating 7 Cases that cite this headnote
to, among other things, misappropriation of trade secrets.

After transfer of venue, the Stephens County Court, C.J.
[4] Appeal and Error 6: Record in General
Eden, J., rendered ﬁnal judgment against plaintiff. Plaintiff

appealed. The Court of Appeals, 929 S.W.2d 85,reversed When nonsuit is ﬁled, reviewing court must
consider state of record at that point.
and remanded in part, but found that case was properly
transferred. Application for writ of error was accepted. The
Supreme Court, Owen, J., held that plaintiff did not lose right
to choose between two counties in which mandatory venue [5] Venue 6= Hearing and determination
was proper by ﬁling its ﬁrst suit in county in which venue was If objection to venue in county of suit has
improper and taking nonsuit after defendants ﬁled motion to been ﬁled, With or without supporting afﬁdavits,
transfer. and plaintiff then takes nonsuit and has not
speciﬁcally denied venue facts averred by party
Reversed and remanded. seeking transfer, venue facts alleged in motion
to transfer are taken as true. Vernon's Ann.Texas
Baker, J., dissented. Rules Civ.Proc., Rule 87.

14 Cases that cite this headnote

West Headnotes (7)
Venue 6“: Domicile or residence for purpose
[6]

of action
[1] Venue G: Form and requisites of application
For venue purposes, individual may have more
in general
than one residence.
Venue 6F Afﬁdavits for Change
9 Cases that cite this headnote
Party seeking to transfer suit must ﬁle motion
objecting to venue, which need not be veriﬁed,

but may be supported by afﬁdavits. Vernon's [7] Venue €= Right to sue in more than one
Ann.Texas Rules CiV.Proc., Rule 86. county or district, and election

Plaintiff did not lose right to choose between
2 Cases that cite this headnote
two counties in which mandatory venue was
proper by ﬁling its ﬁrst suit in county in which

WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works.
GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541 (1998)
41 Tex. Sup. Ct. J. 441

venue was improper and then taking nonsuit after Before the Dallas County trial court ruled on the motions
defendants ﬁled motion to transfer. to transfer, GeoChem nonsuited the entire case. On that
same day, GeoChem reﬁled its suit in Van Zandt County
29 Cases that cite this headnote *543 against all defendants. The defendants ﬁled motions
to transfer to Stephens County, and the Van Zandt County
trial court granted those motions. The Stephens County trial

court ultimately rendered ﬁnal judgment against GeoChem.
Attorneys and Law Firms GeoChem appealed the venue ruling as well as other adverse
determinations. The court of appeals reversed and remanded
*542 Jerry K. Clements, Dallas, Brenda Scale Gray,
in part, but held that the case was properly transferred to
Breckenridge, Stacy Jordan Rodriguez, Dallas, for Petitioner.
Stephens County. We reverse the judgment of the court of

appeals and remand to the trial court for further proceedings
William G. Thompson, Linda Bass Cauffman, Breckenridge,
in accordance with this opinion.
John W. Bickel, II, J. Robert Arnett, Dallas, for Respondents.

Opinion Under our former venue practice, the ﬁling of a proper plea
of privilege constituted prima facie proof of a defendant's
OWEN, Justice, delivered the opinion of the Court, in which right to obtain a transfer. See former TEX.REV.CIV. STAT.
GONZALEZ, HECHT, ENOCH,
PHILLIPS, Chief Justice, 1
art.2007; former TEX.R. CIV. P. 87 (Vernon 1979, amended
SPECTOR, ABBOTT and HANKINSON, Justices, join.
1983); see also Tempelmeyer v. Blackburn, 141 Tex. 600, 175
S.W.2d 222, 224 (1943). The plea of privilege was required
The issue in this case is whether a nonsuit ﬁxes venue in the
to be veriﬁed and was required to affirmatively assert certain
county to which transfer is sought When the nonsuit is taken
after a motion to transfer has been ﬁled but before a ruling
facts. See former TEX.REVCIV. STAT. art.2007; former

TEX.R. CIV. P. 87. If a plaintiff took a nonsuit while the plea
on venue has been made. The court of appeals concluded that
of privilege was pending, venue was ﬁxed in the county to
the effect of a nonsuit under our current rules ofprocedure is
which transfer was sought. See Tempelmeyen 175 S.W.2d at
the same as it was under the former venue rules and held that
224; see also Ruiz v. Conoco, Inc, 868 S.W.2d 752, 756—
venue was ﬁxed in the county to which transfer was sought.
57 (Tex.1993). Because the plea ofprivilege was prima facie
929 S.W.2d 85. We hold that the effect of a nonsuit depends
on the state of the record at the time it is ﬁled and that under
proof of the right to transfer, the dismissal was deemed an
admission that venue was improper in the original county of
the facts of this case, venue was not ﬁxed solely in Stephens
suit and that the defendant had the right t0 transfer venue. See
County, a county t0 which transfer was sought.
Ruiz, 868 S.W.2d at 757; Tempelmeyen 175 S.W.2d at 224.

In December 1993, GeoChem Tech Corporation sued
l
GeoServ Company and Michael Verseckes in Dallas County. Act of May 8, 1939, 46th Leg., R.S., ch. 27, 1939 Tex.

GeoChem sought damages and injunctive relief. GeoServ Gen. Laws 204, repealed by Act approved May 15, 1939,

ﬁled a motion to transfer asserting that venue was mandatory 46th Leg., R.S., ch. 25, 1939 Tex. Gen. Laws 201.

in Stephens County under TEX. CIV. PRAC. & REM.CODE [1] [2] [3] We no longer have a “plea of privilege”
§ 65.023(a) (requiring a suit for injunctive relief to be tried under our venue statutes and rules. Instead, a party seeking
in county of defendant's domicile). The same day, Verseckes to transfer a suit must ﬁle a motion objecting to venue.
ﬁled a motion to transfer, relying on the same mandatory See TEX.R. CIV. P. 86. Veriﬁcation 0f the motion is not
venue provision, but requested that the lawsuit be transferred required, and the motion may be, but is not required to be,
to Van Zandt County, a county in which he claimed to reside. supported by afﬁdavits at the time it is ﬁled. See TEX.R.
Subsequently, Verseckes ﬁled an amended motion to transfer CIV. P. 6(3). As the court of appeals correctly observed, all

venue and sought to have the case transferred to Stephens venue facts, when properly pleaded, shall be taken as true
County instead ofVan Zandt County, still asserting mandatory unless speciﬁcally denied by the adverse party. See TEX.R.
venue, but claiming that he was a resident 0f Stephens County CIV. P. 87(3)(a). When a venue fact is speciﬁcally denied,
as well as Van Zandt County. GeoChem then amended its the paﬁy pleading the fact must submit supporting afﬁdavits
petition, adding three other defendants. or otherwise make prima facie proof. See id. A party who
seeks to maintain venue in the county of suit under certain
sections of the Civil Practice and Remedies Code has the

WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2
GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541 (1998)
41 Tex. Sup. Ct. J. 441

be only one ﬁrst choice” because “any other posture would
burden to make prima facie proof that venue is maintainable
be to promote rather than prevent the very type of legal
in that county. See TEX.R. CIV. P. 87(2)(a). A party seeking a
‘gamesmanship’ sought to be prevented under the old venue
transfer has the burden to make prima facie proof that venue
is maintainable in the county to which transfer is sought. Id.
law.” Id. We conclude that the ve

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HOFFMAN, MARTIN Track Judge’s New Case

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Document Filed Date

May 26, 2020

Case Filing Date

November 08, 2019

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Parties

ATWOOD, MISSY K Attorney for the Defendant
BAYLOR SCOTT & WHITE HEALTH Defendant
BOSTICK, JERRY Plaintiff
BREELAND, MATT A Attorney for the Plaintiff
CARTER, E LEON Attorney for the Defendant
CLEMENT, TODD Attorney for the Plaintiff
DOOR CONTROL SERVICES INC Defendant
DOOR CONTROL SERVICES LLC Defendant
DOOR SERVICES CORPORATION Defendant
HORTON AUTOMATIC DOOR CORPORATION Defendant
HORTON AUTOMATICS INC Defendant
KITA, MATTHEW J. Attorney for the Plaintiff
MADDEN, PATRICK F. Attorney for the Defendant
METCALFE, SALLY S Attorney for the Plaintiff
OVERHEAD DOOR CORPORATION Defendant
SCOTT & WHITE HEALTHCARE Defendant
SIMMONS, ADAM Attorney for the Defendant
Edgar Carter Attorneys for Defendants
Joshua Bennett Attorney
Jennifer Cheek Attorneys for Defendants
Ruben Gandia Attorneys for Defendants
Lauren Lopez Attorneys for Defendants
Nathan Cox Attorney
Paul Downey Attorney
Richard Geisler Attorneys for Defendants
Allison Lockhart Attorneys for Defendants
Melina Rodriguez Attorney
Monica Goff Attorneys for Defendants
Kelli Smith Attorney

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Motion-Secondary: JERRY BOSTICK vs. BAYLOR SCOTT & WHITE HEALTH, et al

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