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So Bu By
a Marilyn Burgess
Pirtrict Clark Electronically Filed
AU way 0-4 000
i
1/4/2019 3:33 PM
Hidalgo County District Clerks
Time:___ secu, amas 0298-91531 ert acah Reviewed By: Valerie Garza
8y eg CAUSE NO. C-4504-18-J
CRUCITA D. CERVANTES, IN THE DISTRICT COURT ‘\\
Plaintiff,
v. 430th JUDICIAL DISTRICT
JOERIS GENERAL CONTRACTORS,
LTD; ALLIED ELECTRICAL
CONTRACTORS, LTD.; and BROTHERS
McCOOL, LLC,
Defendants. HIDALGO COUNTY, TEXAS
DEFENDANT BROTHERS McCOOL, LLC’S
/ MOTION TO TRANSFER VENUE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Brothers McCool, LLC (“Brothers”), a named Defendant herein, and files
this Motion to Transfer Venue, and in support thereof would respectfully show as follows:
L INTRODUCTION
In this action, it appears that Plaintiff attempts to assert two (2) sets of claims: (1) that
Brothers discharged her from employment in retaliation for having filed a workers’ compensation
claim due to an on-the-job injury; and (2) a negligence claim against Brothers and two (2) other
defendants arising out of the on-the-job injury.’
1 Although unclear because the language of the Original Petition is ambiguous, it appears that Plaintiff may assert
common law negligence claims against Brothers and two (2) other defendants in addition to her claim for workers’
compensation retaliation brought pursuant to Chapter 451 of the Texas Labor Code. See Plaintiff's Orig. Pet., “Facts
and Causes of Action” and “Damages,” pp. 3-4. However, as set forth more fully in “Defendant’s Original Answer
Subject to Motion to Transfer Venue” filed contemporaneously herewith, if Plaintiff indeed seeks to assert such
negligence claims, they are not viable causes of action because Brothers was a subscriber to workers’ compensation
insurance at all relevant times when it employed Plaintiff. See “Affidavit of Bryan C. McCool,” attached hereto as
Exhibit “A.” As a result, the Texas Workers’ Compensation Act (“TWCA”) is the exclusive remedy for Plaintiff's
injuries suffered in the course and scope of her work, and the TWCA exempts Brothers from common-law liability
claims based on negligence or gross negligence. See Tex. Lab. Code § 408.001(a); Reed Tool Co. v. Copelin, 689
S.W.2d 404, 406 (Tex. 1985) (“The Texas Workers' Compensation Act is the exclusive remedy for work-related
injuries with the exception of intentional injury.”); see also Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 476-77
(Tex. 2005). Still, for purposes of this Motion, Brothers will also provide a legal analysis as to why venue is improper
in Hidalgo County with regard to Plaintiff's common law negligence claims.
RECORDER'S MEMORANDUM
This instrument is of poor quality
at the time of imaging
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No mandatory venue provisions apply under the facts in this case. All or a substantial part
of the events giving rise to the claim alleged by Plaintiff occurred at Brothers’ headquarters in La
Coste, Medina County, Texas, where the employment decisions regarding Plaintiff were made, or,
alternatively, in Spring, Harris County, Texas, where Plaintiff suffered an on-the-job injury while
working for Brothers. Therefore, under the relevant provisions of the Texas Civil Practice &
Remedies Code, this case should be transferred from Hidalgo County, which is not a proper county
for venue, to Medina County or Harris County, where venue would be proper.
i. VERIFIED SUMMARY OF VENUE FACTS
Brothers specifically denies that all or a substantial part of the events or omissions giving
rise to Plaintiff's cause of action occurred in Hidalgo County. Rather, all or a substantial part of
the events or omissions giving rise to Plaintiffs cause of action occurred in Medina County or
Harris County. See Exhibit “A,” { 6.
For purposes of this lawsuit, Brothers employed Plaintiff occasionally in 2017 and 2018.
See Exhibit “A.” § 3. Throughout this period, Brothers would assign Plaintiff out of its
headquarters and principal place of business in La Coste, Medina County, Texas at 2555 CR 4713,
La Coste, Texas 78039, to perform duties at various job sites in Texas. See Exhibit “A.” ff 2, 3.
All decisions regarding Plaintiff's employment were made in La Coste, Texas. See Exhibit “A.”
q3.
Brothers did not recruit or solicit Plaintiff for employment in Hidalgo County, Texas, and
specifically denies the same. See Exhibit “A.” ¢ 4. Furthermore, Brothers did not conduct any
portion of the onboarding process, including Plaintiff's pre-employment physical, in Hidalgo
County, Texas, and specifically denies the same. Id.
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On January 13, 2018, while working on a jobsite to which Plaintiff was assigned out of
Brothers’ La Coste, Medina County office, Plaintiff suffered an on-the-job injury. See Exhibit
“A.” 45. The on-the-job injury occurred at a jobsite in Spring, Harris County, Texas. Jd. Brothers
has no office, much less its principal office, in Hidalgo County. See Exhibit “A,” { 2.
Plaintiff alleges that “[o]nce there was a fall and a work comp claim, they [sic] have been
denied re-employment because of the work comp claim filed ... [aJll of the above amounts to a
discrimination claim under the Texas Worker’s Compensation Act under section 451 of the Texas
Labor Code.” See Plaintiff's Orig. Pet., “Facts and Causes of Action,” pp. 3-4. Although unclear,
Plaintiff may also allege negligence claims against Brothers, Joeris General Contractors, Ltd.
(“Joeris”), and Allied Electrical Contractors, Inc. (“Allied”), arising out of her on-the-job injury.?
See Plaintiff's Orig. Pet., “Facts and Causes of Action” and “Damages,” pp. 3-4.
mm. THIS CASE MUST BE TRANSFERRED FROM HIDALGO COUNTY
A. LEGAL ANALYSIS.
No mandatory venue provisions apply in this case making it subject to the general venue
rules set forth in the Texas Civil Practice & Remedies Code. Section 15.002(a) of the Texas Civil
Practice & Remedies Code provides that venue is “proper” in either: (a) the county in which all or
a substantial part of the events or omissions giving rise to the claim occurred; or (b) the county of
defendant’s principal office in the state, unless defendant is a natural person. Jd. at subsections (1)
and (3). If neither of these provisions applies, then the action may be brought in the county in
which the plaintiff resided at the time of the accrual of the cause of action. Id. at subsection (4).
? Allied has not been served in this lawsuit.
3 Again, because the Texas Workers’ Compensation Act is the exclusive remedy for Plaintiff's injuries suffered in the
course and scope of her work, any negligence claims Plaintiff attempts to assert are barred. See Tex. Lab. Code §
408.001(a); Reed Tool Co., 689 S.W.2d at 406. Yet, even if negligence claims are considered for purposes of the
venue analysis, venue is still improper in Hidalgo County under Tex. Civ. Prac. & Rem. Code § 15.002(a) for the
reasons:set forth herein.
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In Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673 (Tex. App.—Austin 2003,
no pet.), the Austin Court of Appeals discussed the application of these venue provisions. Prior to
amendment in 1995, the general venue provision allowed venue “in the county in which all or part
of the cause of action accrued or in the county of defendant’s residence ...” Jd. at p. 681 (internal
citations omitted). In 1995, however, Section 15.002(a) was amended to provide that venue shall
be “in the county in which all or a substantial part of the events or omissions giving rise to the
claim occurred.” Id., quoting §15.002(a)(1) (West 2002) (emphasis in original). Under the prior
version of this statute, an action could be brought in any county where any part of a claim arose,
“no matter how unimportant the connection might be.” Jd. at p. 681. The legislature adopted the
“substantial part” language in order to “curtail forum-shopping.” Jd. (citing DB Enterp. v. Windle,
927 S.W.2d 283, 288 (Tex. App. — Fort Worth 1996, orig. proceeding) and the House Research
Organization, Bill Analysis, Tex. S.B. 32, 74" Leg., R.S. (1995)). The court also made clear that
the amended provision limits the number of counties where venue can be maintained to those with
a substantial connection to the lawsuit. Jd. Thus, it is no longer sufficient for a plaintiff to
choose a venue based on any incidental event that may have occurred there.
The plaintiff has the first choice to fix venue in a proper county. Wilson v. Tex. Parks &
Wildlife Dept., 886 S.W.2d 259, 260 (Tex. 1994). If the defendant objects to the plaintiff's venue
choice through a motion to transfer venue, the plaintiff must prove that venue is proper in the
county of the suit. See TEX. R. CIv. P. 87(2)(a); Wilson, 886 S.W.2d at 260. If the plaintiff does
not meet this burden, the court must transfer venue to the county specified in the defendant’s
motion to transfer venue, provided the defendant has requested transfer to a county of proper
venue. TEX. CIV. PRAC. & REM. CODE § 15.063; see Wilson, 886 S.W.2d at 260 n. 1; Maranatha
Temple, Inc. y. Enterprise Prods. Co., 833 S.W.2d 736, 741 (Tex. App.—Houston [1st Dist.] 1992,
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writ den’d); see also Eddins v. Parker, 63 S.W.3d 15 (Tex. App.—El Paso 2001, no pet.). Because
Hidalgo County is not a county of proper venue and venue in Medina or Harris County would be
proper as explained below, this Court must transfer this case to either Medina County or Harris
County, Texas.
B A “SUBSTANTIAL” PORTION OF THE FACTS GIVING RISE TO PLAINTIFF’S CLAIM
OCCURRED IN MEDINA COUNTY OR HARRIS COUNTY — NOT HIDALGO COUNTY — AND
DEFENDANT MAINTAINS ITS PRINCIPAL OFFICE IN MEDINA COUNTY, NoT HIDALGO
COUNTY.
To determine whether a “substantial” portion of the facts giving rise to the claim occurred
in Medina County or Harris County, the Court should examine the essential elements of Plaintiff's
claims. See Chiriboga, 96 S.W.3d at 681 (citing Southern County Mut. Ins. Co. v. Ochoa, 19
S.W.3d 452, 459-60 (Tex. App—Corpus Christi 2000, no pet.) and Bituminous Cas. Corp. v.
Commercial Standard Ins. Co., 639 S.W.2d 25, 26-27 (Tex. App.—Tyler 1982, no writ)).
Here, Plaintiff alleges that Brothers violated Tex. Lab. Code § 451.001 as follows: “[o]nce
there was a fall and a work comp claim, they [sic] have been denied re-employment because of the
work comp claim filed ...” See Plaintiff's Orig. Pet., “Facts and Causes of Action,” pp. 3-4. To
establish a claim of workers’ compensation retaliation, Plaintiff must establish the following
elements: (1) she was employed by Brothers; (2) Brothers was a subscriber under the Texas
Workers’ Compensation Act; (3) Plaintiff engaged in a protected activity; (4) Brothers discharged
or discriminated against Plaintiff; and (5) Brothers would not have discharged or discriminated
against Plaintiff when it did but for Plaintiff's involvement in the workers’ compensation claim.
Tex. LAB. CODE § 451.001; Wilmer-Hutchins ISD v. Sullivan, 51 S.W.3d 293, 295 (Tex. 2001).
Plaintiff also alleges as follows:
“Plaintiff was picking up trash in the enclosed pharmacy area, and as she was walking out
of the pharmacy area, she stepped on a round conduit causing her to fall to the ground”;
This conduit was left behind by Defendant Allied”;
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“Defendant Allied had knowledge of the debris they were leaving behind and failed to pick
up after themselves, even though they had been told to do so”;
“Defendant Joeris had been made aware of the dangerous condition, had actual knowledge
of the dangerous condition, and failed to ensure that Allied cleaned up after themselves”;
“Defendant [Brothers] was told by the Plaintiff that if the cleanup work was not done as
reported to other Defendants Allied and Joeris there would probably be a fall, and there
was a fall which resulted in the injuries and damages complained of herein”;
“But for such negligent conduct, this accident and injuries and damages complained of
would not have occurr sand
“All of the above was caused by the negligence, gross negligence, and statutory negligence
per se, complained of herein.”
See Plaintiffs Orig. Pet., “Facts and Causes of Action” and “Damages,” pp. 3-4.
Although unclear, should Plaintiff seek to assert negligence claims in this case in
connection with the above allegations, she must prove the following elements to establish a
negligence claim: (1) the existence of a legal duty; (2) a breach of that duty; and (3) damages
proximately caused by the breach. See JHS Cedars Treatment Ctr. of Desoto, Texas, Inc. v. Mason,
143 S.W.3d 794, 798 (Tex. 2004). The components of proximate cause are cause-in-fact and
foreseeability. See Western Invs. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005).
Gross negligence includes two (2) additional elements: (1) viewed objectively from the
actor’s standpoint, the act or omission must involve an extreme degree of risk, considering the
probability and magnitude of the potential harm to others, and (2) the actor must have actual,
subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to
the rights, safety, or welfare of others. See Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23
(Tex. 1994).
In order to maintain a cause of action for negligence per se, Plaintiff must prove that: (1) a
statute or ordinance was violated; (2) if so, that the violation was the proximate cause of the
plaintiff's damages; and (3) that the statute was designed to prevent an injury to the class of persons
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to which the plaintiff belongs. See Johnson v. Enriquez, 460 S.W.3d 669, 673 (Tex.App.El Paso
.
2015, no pet.).
Considering the elements of both the workers’ compensation retaliation and the negligence
claims, it is readily apparent that a “substantial part of the events ... giving rise to the claim(s)”
occurred in either Medina County or Harris County, not Hidalgo County.
Specifically, Plaintiff's place of employment was in La Coste, Medina County, Texas,
which is where she was hired, where she was assigned to jobs, and where the decisions regarding
her employment were made. Exhibit “A,” { 4. According to her Original Petition, Plaintiff's
workers’ compensation retaliation claim arises out of Brothers’ decision to deny her re-
employment, allegedly in retaliation for her having filed a workers’ compensation claim. The
alleged adverse employment action forming the basis for Plaintiff's claim occurred in Medina
County.
Further, Medina County is the county where the investigation of Plaintiff's wrongful
discharge claim will necessarily occur, where the majority of the pertinent witnesses work and
reside, and where discovery will be conducted, including interviews, depositions, and trial
preparation. Should the case remain in Hidalgo County, the parties will unnecessarily incur the
significant burden, time, and expense of preparing the case in one county and litigating it in
another. These “convenience” factors also demonstrate the wisdom of the legislature’s directive
that cases be filed in the county where all or a substantial part of the events occurred.
Alternatively, Plaintiff’s on-the-job injury occurred in Spring, Harris County, Texas. Such
fact forms the basis for Plaintiffs alleged claims for negligence and personal injuries. Plaintiff
would not have a negligence claim without the injury. Thus, Harris County is also a county of
proper venue in this case.
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In short, nothing about Plaintiffs claims is connected in any material way to Hidalgo
County. Rather, “all or a substantial part of the events” at issue in this case occurred in Medina
County or Harris County, therefore satisfying the venue requirement of TEx. Crv. PRAC. & REM.
Conk § 15.002(a)(1)
Finally, venue is also proper in Medina County under subsection (3) of Section 15.002
because Brothers maintains its principal office in such county.
Cc VENUE IN HIDALGO COUNTY IS NOT PROPER UNDER ANY OF THE OTHER STATUTES
CITED BY PLAINTIFF.
All of the above demonstrates that all or a substantial part of the events at issue in this case
did not occur in Hidalgo County, in contrast to the venue allegations in Plaintiff's Original Petition
Plaintiff also asserts that venue is proper under TEX. CIv. PRAC. & REM. CODE § 15.002(a)(4),
because she resided in Hidalgo County, Texas at the time the causes of action accrued. However,
subsection (4) is the general venue provision of last resort and does not apply in this case because
subsections (1) and (3) apply. See TEX. CIv. PRAC. & REM. CODE § 15.002(a)(4).
Plaintiff further cites to TEX. CIV. PRAC. & REM. CODE § 15.038, which provides that “an
action governed by any other statute prescribing permissive venue may be brought in the county
allowed by that statute.” In conjunction with this provision, Plaintiff asserts that venue is proper
in Hidalgo County under TEX. BUS. & COMM. CODE § 17.56 because “the transaction of
employment and employment benefits, and pre-employment physical was made and solicited for
the employment transaction at issue in Plaintiffs county of residence Plaintiff was recruited in
Hidalgo County, Texas.” See Plaintiffs Orig. Pet., “Venue,” p. 2. However, TEX. BUS. & COMM.
CODE § 17.56 applies to claims brought by consumers under the Texas Deceptive Trade Practices
and Consumer Protection Act, Subchapter E of the Texas Business and Commerce Code. Such
provision is inapplicable because Plaintiff makes no such claims in this lawsuit.
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Finally, Plaintiff claims that venue is proper in Hidalgo County under the Texas Labor
Code provisions permitting venue in the county of Plaintiffs residence for “any and all claims
arising under the Texas Worker’s Compensation Act.” See Plaintiff's Orig. Pet., “Venue,” p. 2.
Yet, Plaintiff fails to cite to any specific provisions of the Texas Labor Code and, in particular, the
Texas Workers’ Compensation Act, which would provide that venue is appropriate in Plaintiff's
county of residence. The only venue provisions contained within the Texas Worker’s
Compensation Act (codified at Chapters 401-419; 451; and 501-506 of the Texas Labor Code)
relate to: (1) administrative proceedings under Chapter 410 of the Texas Labor Code; and (2)
appeals of workers’ compensation claims brought by employees of the University of Texas or the
University of Texas system. Neither of these venue provisions are applicable to the claims asserted
in this case.
WHEREFORE, PREMISES CONSIDERED, based upon the foregoing facts and
applicable authorities, Defendant Brothers McCool, LLC requests that the Court set its Motion to
Transfer Venue for a hearing as soon as possible, providing for the required 45 days’ notice of
hearing and, after such hearing, grant its motion to transfer this case from Hidalgo County to either
Medina County or Harris County. Defendant Brothers also requests its costs and fees associated
with this motion and such other relief, at law or in equity, as may be deemed proper by the Court.
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Respectfully submitted,
By: /s/ Larry Smith
LAWRENCE D. SMITH
State Bar No. 16838800
Larry.Smith@ogletree.com
MARK A. McNITZKY
State Bar No. 24065730
Mark.McNitzky@ogletree.com
OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C.
112 East Pecan Street
2700 Weston Centre
San Antonio, Texas 78205
210.354.1300 — Telephone
210.277.2702 — Facsimile
ATTORNEYS FOR DEFENDANT
BROTHERS McCOOL, LLC
CERTIFICATE OF CONFERENCE
On January 4, 2019, Defendant’s counsel conferred with Plaintiff's counsel concerning the
telief sought by way of the instant Motion, and Plaintiffs counsel stated that he is opposed.
/s/ Larry Smith
LAWRENCE D. SMITH/MARK A. MCNITZKY
10
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CERTIFICATE OF SERVICE
I hereby certify that on this 4" day of January 2019, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system, which will send notification and a copy of
said filing to the following counsel of record:
William J. Tinning
Law Office of William J. Tinning, P.C.
720 W. Broadway Ave,
Portland, Texas 78374
btinnin, tinninglaw.com
Frank Enriquez
Law Office of Frank Enriquez
4200-B North Bicentennial Dr.
McAllen, Texas 78504
frank@frankenriquez.com
reyz@frankenriquez.com
Carlos A. Balido
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, TX 75231
balidoedocsnotifications@wbclawfirm.com
/s/ Larry Smith
LAWRENCE D. SMITH/MARK A. MCNITZKY
36867253.1
075208.000001
Il
Preview
So Bu By a Marilyn Burgess Pirtrict Clark Electronically Filed AU way 0-4 000 i 1/4/2019 3:33 PM Hidalgo County District Clerks Time:___ secu, amas 0298-91531 ert acah Reviewed By: Valerie Garza 8y eg CAUSE NO. C-4504-18-J CRUCITA D. CERVANTES, IN THE DISTRICT COURT ‘\\ Plaintiff, v. 430th JUDICIAL DISTRICT JOERIS GENERAL CONTRACTORS, LTD; ALLIED ELECTRICAL CONTRACTORS, LTD.; and BROTHERS McCOOL, LLC, Defendants. HIDALGO COUNTY, TEXAS DEFENDANT BROTHERS McCOOL, LLC’S / MOTION TO TRANSFER VENUE TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Brothers McCool, LLC (“Brothers”), a named Defendant herein, and files this Motion to Transfer Venue, and in support thereof would respectfully show as follows: L INTRODUCTION In this action, it appears that Plaintiff attempts to assert two (2) sets of claims: (1) that Brothers discharged her from employment in retaliation for having filed a workers’ compensation claim due to an on-the-job injury; and (2) a negligence claim against Brothers and two (2) other defendants arising out of the on-the-job injury.’ 1 Although unclear because the language of the Original Petition is ambiguous, it appears that Plaintiff may assert common law negligence claims against Brothers and two (2) other defendants in addition to her claim for workers’ compensation retaliation brought pursuant to Chapter 451 of the Texas Labor Code. See Plaintiff's Orig. Pet., “Facts and Causes of Action” and “Damages,” pp. 3-4. However, as set forth more fully in “Defendant’s Original Answer Subject to Motion to Transfer Venue” filed contemporaneously herewith, if Plaintiff indeed seeks to assert such negligence claims, they are not viable causes of action because Brothers was a subscriber to workers’ compensation insurance at all relevant times when it employed Plaintiff. See “Affidavit of Bryan C. McCool,” attached hereto as Exhibit “A.” As a result, the Texas Workers’ Compensation Act (“TWCA”) is the exclusive remedy for Plaintiff's injuries suffered in the course and scope of her work, and the TWCA exempts Brothers from common-law liability claims based on negligence or gross negligence. See Tex. Lab. Code § 408.001(a); Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985) (“The Texas Workers' Compensation Act is the exclusive remedy for work-related injuries with the exception of intentional injury.”); see also Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 476-77 (Tex. 2005). Still, for purposes of this Motion, Brothers will also provide a legal analysis as to why venue is improper in Hidalgo County with regard to Plaintiff's common law negligence claims. RECORDER'S MEMORANDUM This instrument is of poor quality at the time of imaging Electronically Filed 1/4/2019 3:33 PM Hidalgo County District Clerks Reviewed By: Valerie Garza No mandatory venue provisions apply under the facts in this case. All or a substantial part of the events giving rise to the claim alleged by Plaintiff occurred at Brothers’ headquarters in La Coste, Medina County, Texas, where the employment decisions regarding Plaintiff were made, or, alternatively, in Spring, Harris County, Texas, where Plaintiff suffered an on-the-job injury while working for Brothers. Therefore, under the relevant provisions of the Texas Civil Practice & Remedies Code, this case should be transferred from Hidalgo County, which is not a proper county for venue, to Medina County or Harris County, where venue would be proper. i. VERIFIED SUMMARY OF VENUE FACTS Brothers specifically denies that all or a substantial part of the events or omissions giving rise to Plaintiff's cause of action occurred in Hidalgo County. Rather, all or a substantial part of the events or omissions giving rise to Plaintiffs cause of action occurred in Medina County or Harris County. See Exhibit “A,” { 6. For purposes of this lawsuit, Brothers employed Plaintiff occasionally in 2017 and 2018. See Exhibit “A.” § 3. Throughout this period, Brothers would assign Plaintiff out of its headquarters and principal place of business in La Coste, Medina County, Texas at 2555 CR 4713, La Coste, Texas 78039, to perform duties at various job sites in Texas. See Exhibit “A.” ff 2, 3. All decisions regarding Plaintiff's employment were made in La Coste, Texas. See Exhibit “A.” q3. Brothers did not recruit or solicit Plaintiff for employment in Hidalgo County, Texas, and specifically denies the same. See Exhibit “A.” ¢ 4. Furthermore, Brothers did not conduct any portion of the onboarding process, including Plaintiff's pre-employment physical, in Hidalgo County, Texas, and specifically denies the same. Id. Electronically Filed 1/4/2019 3:33 PM Hidalgo County District Clerks Reviewed By: Valerie Garza On January 13, 2018, while working on a jobsite to which Plaintiff was assigned out of Brothers’ La Coste, Medina County office, Plaintiff suffered an on-the-job injury. See Exhibit “A.” 45. The on-the-job injury occurred at a jobsite in Spring, Harris County, Texas. Jd. Brothers has no office, much less its principal office, in Hidalgo County. See Exhibit “A,” { 2. Plaintiff alleges that “[o]nce there was a fall and a work comp claim, they [sic] have been denied re-employment because of the work comp claim filed ... [aJll of the above amounts to a discrimination claim under the Texas Worker’s Compensation Act under section 451 of the Texas Labor Code.” See Plaintiff's Orig. Pet., “Facts and Causes of Action,” pp. 3-4. Although unclear, Plaintiff may also allege negligence claims against Brothers, Joeris General Contractors, Ltd. (“Joeris”), and Allied Electrical Contractors, Inc. (“Allied”), arising out of her on-the-job injury.? See Plaintiff's Orig. Pet., “Facts and Causes of Action” and “Damages,” pp. 3-4. mm. THIS CASE MUST BE TRANSFERRED FROM HIDALGO COUNTY A. LEGAL ANALYSIS. No mandatory venue provisions apply in this case making it subject to the general venue rules set forth in the Texas Civil Practice & Remedies Code. Section 15.002(a) of the Texas Civil Practice & Remedies Code provides that venue is “proper” in either: (a) the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; or (b) the county of defendant’s principal office in the state, unless defendant is a natural person. Jd. at subsections (1) and (3). If neither of these provisions applies, then the action may be brought in the county in which the plaintiff resided at the time of the accrual of the cause of action. Id. at subsection (4). ? Allied has not been served in this lawsuit. 3 Again, because the Texas Workers’ Compensation Act is the exclusive remedy for Plaintiff's injuries suffered in the course and scope of her work, any negligence claims Plaintiff attempts to assert are barred. See Tex. Lab. Code § 408.001(a); Reed Tool Co., 689 S.W.2d at 406. Yet, even if negligence claims are considered for purposes of the venue analysis, venue is still improper in Hidalgo County under Tex. Civ. Prac. & Rem. Code § 15.002(a) for the reasons:set forth herein. Electronically Filed 1/4/2019 3:33 PM Hidalgo County District Clerks Reviewed By: Valerle Garza In Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673 (Tex. App.—Austin 2003, no pet.), the Austin Court of Appeals discussed the application of these venue provisions. Prior to amendment in 1995, the general venue provision allowed venue “in the county in which all or part of the cause of action accrued or in the county of defendant’s residence ...” Jd. at p. 681 (internal citations omitted). In 1995, however, Section 15.002(a) was amended to provide that venue shall be “in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred.” Id., quoting §15.002(a)(1) (West 2002) (emphasis in original). Under the prior version of this statute, an action could be brought in any county where any part of a claim arose, “no matter how unimportant the connection might be.” Jd. at p. 681. The legislature adopted the “substantial part” language in order to “curtail forum-shopping.” Jd. (citing DB Enterp. v. Windle, 927 S.W.2d 283, 288 (Tex. App. — Fort Worth 1996, orig. proceeding) and the House Research Organization, Bill Analysis, Tex. S.B. 32, 74" Leg., R.S. (1995)). The court also made clear that the amended provision limits the number of counties where venue can be maintained to those with a substantial connection to the lawsuit. Jd. Thus, it is no longer sufficient for a plaintiff to choose a venue based on any incidental event that may have occurred there. The plaintiff has the first choice to fix venue in a proper county. Wilson v. Tex. Parks & Wildlife Dept., 886 S.W.2d 259, 260 (Tex. 1994). If the defendant objects to the plaintiff's venue choice through a motion to transfer venue, the plaintiff must prove that venue is proper in the county of the suit. See TEX. R. CIv. P. 87(2)(a); Wilson, 886 S.W.2d at 260. If the plaintiff does not meet this burden, the court must transfer venue to the county specified in the defendant’s motion to transfer venue, provided the defendant has requested transfer to a county of proper venue. TEX. CIV. PRAC. & REM. CODE § 15.063; see Wilson, 886 S.W.2d at 260 n. 1; Maranatha Temple, Inc. y. Enterprise Prods. Co., 833 S.W.2d 736, 741 (Tex. App.—Houston [1st Dist.] 1992, Electronically Filed 1/4/2019 3:33 PM Hidalgo County District Clerks Reviewed By: Valerie Garza writ den’d); see also Eddins v. Parker, 63 S.W.3d 15 (Tex. App.—El Paso 2001, no pet.). Because Hidalgo County is not a county of proper venue and venue in Medina or Harris County would be proper as explained below, this Court must transfer this case to either Medina County or Harris County, Texas. B A “SUBSTANTIAL” PORTION OF THE FACTS GIVING RISE TO PLAINTIFF’S CLAIM OCCURRED IN MEDINA COUNTY OR HARRIS COUNTY — NOT HIDALGO COUNTY — AND DEFENDANT MAINTAINS ITS PRINCIPAL OFFICE IN MEDINA COUNTY, NoT HIDALGO COUNTY. To determine whether a “substantial” portion of the facts giving rise to the claim occurred in Medina County or Harris County, the Court should examine the essential elements of Plaintiff's claims. See Chiriboga, 96 S.W.3d at 681 (citing Southern County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 459-60 (Tex. App—Corpus Christi 2000, no pet.) and Bituminous Cas. Corp. v. Commercial Standard Ins. Co., 639 S.W.2d 25, 26-27 (Tex. App.—Tyler 1982, no writ)). Here, Plaintiff alleges that Brothers violated Tex. Lab. Code § 451.001 as follows: “[o]nce there was a fall and a work comp claim, they [sic] have been denied re-employment because of the work comp claim filed ...” See Plaintiff's Orig. Pet., “Facts and Causes of Action,” pp. 3-4. To establish a claim of workers’ compensation retaliation, Plaintiff must establish the following elements: (1) she was employed by Brothers; (2) Brothers was a subscriber under the Texas Workers’ Compensation Act; (3) Plaintiff engaged in a protected activity; (4) Brothers discharged or discriminated against Plaintiff; and (5) Brothers would not have discharged or discriminated against Plaintiff when it did but for Plaintiff's involvement in the workers’ compensation claim. Tex. LAB. CODE § 451.001; Wilmer-Hutchins ISD v. Sullivan, 51 S.W.3d 293, 295 (Tex. 2001). Plaintiff also alleges as follows: “Plaintiff was picking up trash in the enclosed pharmacy area, and as she was walking out of the pharmacy area, she stepped on a round conduit causing her to fall to the ground”; This conduit was left behind by Defendant Allied”; Electronically Filed 1/4/2019 3:33 PM Hidalgo County District Clerks Reviewed By: Valerie Garza “Defendant Allied had knowledge of the debris they were leaving behind and failed to pick up after themselves, even though they had been told to do so”; “Defendant Joeris had been made aware of the dangerous condition, had actual knowledge of the dangerous condition, and failed to ensure that Allied cleaned up after themselves”; “Defendant [Brothers] was told by the Plaintiff that if the cleanup work was not done as reported to other Defendants Allied and Joeris there would probably be a fall, and there was a fall which resulted in the injuries and damages complained of herein”; “But for such negligent conduct, this accident and injuries and damages complained of would not have occurr sand “All of the above was caused by the negligence, gross negligence, and statutory negligence per se, complained of herein.” See Plaintiffs Orig. Pet., “Facts and Causes of Action” and “Damages,” pp. 3-4. Although unclear, should Plaintiff seek to assert negligence claims in this case in connection with the above allegations, she must prove the following elements to establish a negligence claim: (1) the existence of a legal duty; (2) a breach of that duty; and (3) damages proximately caused by the breach. See JHS Cedars Treatment Ctr. of Desoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). The components of proximate cause are cause-in-fact and foreseeability. See Western Invs. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005). Gross negligence includes two (2) additional elements: (1) viewed objectively from the actor’s standpoint, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others. See Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994). In order to maintain a cause of action for negligence per se, Plaintiff must prove that: (1) a statute or ordinance was violated; (2) if so, that the violation was the proximate cause of the plaintiff's damages; and (3) that the statute was designed to prevent an injury to the class of persons Electronically Filed \ 1/4/2019 3:33 PM Hidalgo County District Clerks Reviewed By: Valerie Garza to which the plaintiff belongs. See Johnson v. Enriquez, 460 S.W.3d 669, 673 (Tex.App.El Paso . 2015, no pet.). Considering the elements of both the workers’ compensation retaliation and the negligence claims, it is readily apparent that a “substantial part of the events ... giving rise to the claim(s)” occurred in either Medina County or Harris County, not Hidalgo County. Specifically, Plaintiff's place of employment was in La Coste, Medina County, Texas, which is where she was hired, where she was assigned to jobs, and where the decisions regarding her employment were made. Exhibit “A,” { 4. According to her Original Petition, Plaintiff's workers’ compensation retaliation claim arises out of Brothers’ decision to deny her re- employment, allegedly in retaliation for her having filed a workers’ compensation claim. The alleged adverse employment action forming the basis for Plaintiff's claim occurred in Medina County. Further, Medina County is the county where the investigation of Plaintiff's wrongful discharge claim will necessarily occur, where the majority of the pertinent witnesses work and reside, and where discovery will be conducted, including interviews, depositions, and trial preparation. Should the case remain in Hidalgo County, the parties will unnecessarily incur the significant burden, time, and expense of preparing the case in one county and litigating it in another. These “convenience” factors also demonstrate the wisdom of the legislature’s directive that cases be filed in the county where all or a substantial part of the events occurred. Alternatively, Plaintiff’s on-the-job injury occurred in Spring, Harris County, Texas. Such fact forms the basis for Plaintiffs alleged claims for negligence and personal injuries. Plaintiff would not have a negligence claim without the injury. Thus, Harris County is also a county of proper venue in this case. Electronically Filed 1/4/2019 3:33 PM Hidalgo County District Clerks Reviewed By: Valerie Garza In short, nothing about Plaintiffs claims is connected in any material way to Hidalgo County. Rather, “all or a substantial part of the events” at issue in this case occurred in Medina County or Harris County, therefore satisfying the venue requirement of TEx. Crv. PRAC. & REM. Conk § 15.002(a)(1) Finally, venue is also proper in Medina County under subsection (3) of Section 15.002 because Brothers maintains its principal office in such county. Cc VENUE IN HIDALGO COUNTY IS NOT PROPER UNDER ANY OF THE OTHER STATUTES CITED BY PLAINTIFF. All of the above demonstrates that all or a substantial part of the events at issue in this case did not occur in Hidalgo County, in contrast to the venue allegations in Plaintiff's Original Petition Plaintiff also asserts that venue is proper under TEX. CIv. PRAC. & REM. CODE § 15.002(a)(4), because she resided in Hidalgo County, Texas at the time the causes of action accrued. However, subsection (4) is the general venue provision of last resort and does not apply in this case because subsections (1) and (3) apply. See TEX. CIv. PRAC. & REM. CODE § 15.002(a)(4). Plaintiff further cites to TEX. CIV. PRAC. & REM. CODE § 15.038, which provides that “an action governed by any other statute prescribing permissive venue may be brought in the county allowed by that statute.” In conjunction with this provision, Plaintiff asserts that venue is proper in Hidalgo County under TEX. BUS. & COMM. CODE § 17.56 because “the transaction of employment and employment benefits, and pre-employment physical was made and solicited for the employment transaction at issue in Plaintiffs county of residence Plaintiff was recruited in Hidalgo County, Texas.” See Plaintiffs Orig. Pet., “Venue,” p. 2. However, TEX. BUS. & COMM. CODE § 17.56 applies to claims brought by consumers under the Texas Deceptive Trade Practices and Consumer Protection Act, Subchapter E of the Texas Business and Commerce Code. Such provision is inapplicable because Plaintiff makes no such claims in this lawsuit. Electronically Filed 1/4/2019 3:33 PM Hidalgo County District Clerks Reviewed By: Valerie Garza Finally, Plaintiff claims that venue is proper in Hidalgo County under the Texas Labor Code provisions permitting venue in the county of Plaintiffs residence for “any and all claims arising under the Texas Worker’s Compensation Act.” See Plaintiff's Orig. Pet., “Venue,” p. 2. Yet, Plaintiff fails to cite to any specific provisions of the Texas Labor Code and, in particular, the Texas Workers’ Compensation Act, which would provide that venue is appropriate in Plaintiff's county of residence. The only venue provisions contained within the Texas Worker’s Compensation Act (codified at Chapters 401-419; 451; and 501-506 of the Texas Labor Code) relate to: (1) administrative proceedings under Chapter 410 of the Texas Labor Code; and (2) appeals of workers’ compensation claims brought by employees of the University of Texas or the University of Texas system. Neither of these venue provisions are applicable to the claims asserted in this case. WHEREFORE, PREMISES CONSIDERED, based upon the foregoing facts and applicable authorities, Defendant Brothers McCool, LLC requests that the Court set its Motion to Transfer Venue for a hearing as soon as possible, providing for the required 45 days’ notice of hearing and, after such hearing, grant its motion to transfer this case from Hidalgo County to either Medina County or Harris County. Defendant Brothers also requests its costs and fees associated with this motion and such other relief, at law or in equity, as may be deemed proper by the Court. Electronically Filed 1/4/2019 3:33 PM Hidalgo County District Clerks Reviewed By: Valerie Garza Respectfully submitted, By: /s/ Larry Smith LAWRENCE D. SMITH State Bar No. 16838800 Larry.Smith@ogletree.com MARK A. McNITZKY State Bar No. 24065730 Mark.McNitzky@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 112 East Pecan Street 2700 Weston Centre San Antonio, Texas 78205 210.354.1300 — Telephone 210.277.2702 — Facsimile ATTORNEYS FOR DEFENDANT BROTHERS McCOOL, LLC CERTIFICATE OF CONFERENCE On January 4, 2019, Defendant’s counsel conferred with Plaintiff's counsel concerning the telief sought by way of the instant Motion, and Plaintiffs counsel stated that he is opposed. /s/ Larry Smith LAWRENCE D. SMITH/MARK A. MCNITZKY 10 Electronically Filed 11412019 3:33 PM Hidalgo County District Clerks Reviewed By: Valerie Garza CERTIFICATE OF SERVICE I hereby certify that on this 4" day of January 2019, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification and a copy of said filing to the following counsel of record: William J. Tinning Law Office of William J. Tinning, P.C. 720 W. Broadway Ave, Portland, Texas 78374 btinnin, tinninglaw.com Frank Enriquez Law Office of Frank Enriquez 4200-B North Bicentennial Dr. McAllen, Texas 78504 frank@frankenriquez.com reyz@frankenriquez.com Carlos A. Balido Meadow Park Tower, Suite 1500 10440 North Central Expressway Dallas, TX 75231 balidoedocsnotifications@wbclawfirm.com /s/ Larry Smith LAWRENCE D. SMITH/MARK A. MCNITZKY 36867253.1 075208.000001 Il