Preview
KILLED
wayne”
1 Electronically Filed
8/9/2019 5:58 PM
Hidalgo County District Clerks
MAY 0% 2020
‘Time:___aecoanty Tome
2099-21531 ccsaesth Reviewed By: Irma Lopez
CAUSE NO. C-4504-18-J
8y_____——epaySS
CRUCITA D. CERVANTES IN THE DISTRICT COURT OF { ‘
Plaintiffs,
V. .
JOERIS GENERAL CONTRACTORS, LTD; HIDALGO COUNTY, TEXAS
ALLIED ELECTRICAL CONTRACTORS,
LTD.; BROTHER'S McCOOL, LLC,
Defendants. 430TH JUDICIAL DISTRICT
DEFENDANT ALLIED ELECTRICAL CONTRACTORS, LTD.’S
MOTION TO RECONSIDER COURT’S ORDER DENYING
ALLIED’S MOTION TO TRANSFER VENUE
4
TO THE HONORABLE JUDGE OF SAID COURT:
Third Party Defendant Allied Electrical Contractors, Lid. (“Allied”) asks that the Court
reconsider its Order of July 3, 2019; denying Allied’s Motion to Transfer Venue to Harris
County, Texas. Because this Court fixed venue in Harris County for claims against Allied in the
Court’s March 27 Order granting the original Motion to Transfer Venue filed by Allied, transfer
is required by Sections 15.062 and 15.0641 of the Texas Civil Practice and Remedies Code.
INTRODUCTION
In March of 2019, this Court granted Allied’s Motion to Transfer Venue and ordered this
case transferred to Harris County, Texas. Now, just a few months later, Allied finds itself back
in this Court, defending against claims arising out of the same transaction and the Court has
denied Allied’s request to transfer the case back to Harris County. The result is that Allied is a
defendant in a court which lacks proper venue over the claims against Allied.
Texas has long recognized a policy to “protect defendants from the harassment and
expense of several contests on the issue of venue.” In re Team Rocket, L.P., 256 S.W.3d 257,
5
7182625v1 RECORDER'S MEMORANDUM
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at the time of imaging
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261, quoting First Nat'l Bank in Dallas v. Hannay, 123 Tex. 203, 67 S.W.2d 215, 215 (1933)
(per curiam). The denial of Allied’s Motion to Transfer Venue violates this principle, leads to
inconsistent results, and impermissibly forces Allied to defend itself in an improper venue.
The Court has suggested that this inequitable result is mandated by Tex. Civ. Prac. &
Rem. Code § 15.062(a), which provides
Venue of the main action shall establish venue of a counterclaim, cross claim, or
third-party claim properly joined under the Texas Rules of Civil Procedure or any
applicable statute.
But this statutory provision cannot countenance the Court’s ruling for two reasons.
First, the nonsuit by Plaintiff Crucita Cervantes after the Court granted Allied’s original
Motion to Transfer Venue fixed venue for all claims against Allied in Harris County. The
Court’s more recent volte-face in denying Allied’s second Motion to Transfer Venue creates a
direct and irreconcilable conflict with the Court’s earlier venue ruling. The only reasonable way
to avoid this conflict is to construe the language “[vJenue in the main action” in § 15.062(a) to
mean the Court’s March venue ruling which established proper venue in Harris County.
Second, because the claims asserted by Third Party Plaintiff Joeris General Contractors
against Allied arise out of the same transaction or occurrence as Cervantes’ claims against
Allied, venue for the claims asserted by Joeris is not proper in Hidalgo County. Joeris, however,
did not challenge venue in response to the Original Petition filed by Joeris. This means that the
Court has sustained venue in Hidalgo County only because Joeris waived its venue rights.
Section 15.0641 of the Texas Civil Practice and Remedies Code expressly addresses this
situation:
In a suit in which two or more defendants are joined, any action or omission by
one defendant in relation to venue, including a waiver of venue by one defendant,
does not operate to impair or diminish the right of any other defendant to Properly
challenge venue.
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Under the Court’s July venue ruling, Allied’s venue right to defend itself in Harris
County has been totally destroyed, not simply impaired or diminished. To avoid that destruction,
the application of§ 15.0641 preserves that right and results in the case being tried in a court of
proper venue.
VENUE FACTS AND PROCEDURAL HISTORY
12/17/18 Cervantes files her Original Petition
V/4/19 Defendant Brothers McCool (Cervantes’ employer) files Motion to Transfer
‘Venue
1/14/19 Allied files Motion to Transfer Venue
3/25/19 Agreed Motion by Cervantes and McCool to nonsuit McCool with prejudice
3/27/19 Order granting Allied’s Motion to Transfer Venue to Harris County
A219 Plaintiff's Expedited Motion to Withdraw Order on Motion to Transfer Venue
4/9/19 Plaintiffs notice of nonsuit without prejudice against Allied
A/I1/19 Order granting Plaintiffs Expedited Motion to Withdraw Order on Motion to
Transfer Venue (Order is entitled Order Nunc Pro Tunc but there is nothing
making the order effective any earlier than 4/11/19)
4/11/19 Defendant Joeris files its Third Party Petition against Allied and McCool.
Paragraph 5 alleges:
Venue is proper in Harris County, Texas under Section 15.002(a)(1) of the Texas
Civil Practice and Remedies Code because all acts or omissions giving rise to this
claim occurred in Harris County. However, Plaintiff's underlying suit is currently
pending before this Court in Hidalgo Coifnty, Texas. Therefore, Third-Party
Plaintiff Joeris files its Third-Party Petition accordingly in Hidalgo, County.
AI2A/19 Cervantes files an Objection to Joeris Third Party Petition and alleges that there is
no claim against McCool because of the workers compensation bar and states:
Defendant JOERIS GENERAL CONTRACTORS, LTD. is suing ALLIED
ELECTRICAL CONTRACTORS, LTD. strictly as a ploy for venue. There are no
claimed specific acts of negligence against ALLIED ELECTRICAL
CONTRACTORS, LTD by JOERIS GENERAL CONTRACTORS, LTD.
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If Defendant can show evidence of ALLIED ELECTRICAL CONTRACTORS,
LTD.’S negligence, then it should be designated as a responsible third party not as
an actual third party defendant. (See Teakell v. Perma Stone Co., 658 S.W.2d 563
(Tex. 1983).
5/6/19 Allied files Motion to Transfer Venue to Harris County in response to Third Party
Petition
5/31/19 Cervantes files a Reply to Allied’s Motion to Transfer Venue asserting that venue
is proper in Hidalgo County (Joeris does not object to the Motion to Transfer
Venue)
13/9 Court signs Order denying Allied’s Motion to Transfer Venue
7/16 /19 Court signs Order granting Joeris leave tofile Third Party Petition
ANALYSIS
There is no doubt that Hidalgo County is not a county of proper venue for any of the
claims that have been or could be asserted in this suit. The events that gave rise to the claim all
occurred in Harris County and neither Allied, Joeris, nor McCool are residents of Hidalgo
County. Under the general statutory venue provision, Tex. Civ. Prac. & Rem. Code § 15.002,
proper venue lies either in Harris County or in the county where one of the properly-joined
defendants has its principal place of business.
The most salient point in the venue analysis in this case is that the Court has previously
determined that Hidalgo County is not a court of proper venue for claims against Allied, but
Harris County is proper. That is why the Court signed the order in March 2019 ordering that the
case be transferred to Harris County. However, because of some unusual procedural
peregrinations, this Court has concluded that Allied must defend itself against claims arising out
of Cervantes’ injury in Hidalgo County, despite the Court’s initial - and unchallenged —
determination that venue is not proper here. This conclusion is at odds with both the language
and the spirit of the venue statutes.
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The Texas Supreme Court discussed the effect of a district court’s decision to transfer .
venue in Team Rocket. While the plaintiff ordinarily gets the first choice of venue by filing suit
in a county chosen by the plaintiff, a defendant may challenge that venue selection under the
venue statutes and, if the county chosen by the plaintiff is not a county of proper venue, a district
court “shall transfer an action to another county of proper venue.” 256 S.W.3d at 259, quoting
Tex. Civ. Prac. & Rem. Code § 15.063(1). Once a court determines that venue should be
transferred, “that determination is conclusive as to those parties and those claims. Team Rocket,
256 S.W.3d at 260, citing H.H. Watson Co. v. Cobb Grain Co., 292 S.W. 174, 177 (Tex.
Comm’n App.1927, judgm’t adopted) (holding that a plaintiff's nonsuit following the trial court's
hearing on a plea of privilege “unalterably fixed the venue of any suit involving any subsequent
controversy between the parties, relating to the subject-matter of the original suit in the county
where the defendants reside,” and that “[t]he venue of such subsequent suit, if any, has become
tes judicata.”). “To interpret the provisions otherwise would allow forum shopping, a practice
we have repeatedly prohibited.” Team Rocket, 256 S.W.3d at 260. Thus, even though the
plaintiff filed the second suit in a county of proper venue, the district court erred in transferring
the case to that county because the prior venue ruling fixed venue for all later proceedings in the
case.
There is an obvious, but immaterial, difference between Team Rocket and the present
case. In Team Rocket, the second suit was initiated by the plaintiff in a different county of
proper venue, while in this case the second claims against Allied were filed by Joeris in the same
county as the original claims. Even though the second venue chosen by the plaintiff in Team
Rocket was proper, the court was still obligated to return the case to the court where venue had
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already been fixed. In the present case, however, Joeris filed its claims against Allied in the
same county that had already been determined to be a county of improper venue.
The Texas Supreme Court, just like parents and educators for the last several generations,
knows that “two wrongs don't make a right.” In re Nat'l Lloyds Ins. Co., 532 S.W.3d 794, 810
(Tex. 2017). Hidalgo County is not a county of proper venue for claims against Allied by
Cervantes and Hidalgo County is not a county of proper venue for claims against Allied by
Joeris. So under what theory of jurisprudence can two improper venue choices transmogrify into
one proper venue choice? Obviously they can’t, and the flaw in that reasoning arises from two
S
separate provisions in the venue statutes.
First, § 15.062(a) mandates that “[vjenue of the main action shall establish venue of a
counterclaim, cross claim, or third-party claim properly joined under the Texas Rules of Civil
Procedure or any applicable statute.” When Joeris filed its Third Party Petition in April of 2019,
the issue of venue was not a clean slate; the Court had already determined that venue of the
claims arising out of Cervantes’ injury was Harris County, and therefore the “venue of the main
action” had already been determined by this Court to be Harris County. The Court’s March
order granting Allied’s Motion to Transfer Venue, followed by Cervantes’ nonsuit of her claims
against Allied, fixed venue for all claims against Allied arising out of the injury in Harris
County. That is true not only as to Cervantes, but also as to Joeris, who was a party in the case at
the time of the March order. See Team Rocket, 256 S.W.3d at 260 (once a court determines that
venue should be transferred, “that determination is conclusive as to those parties and those
claims”). Because venue in Harris County was fixed by the March order transferring venue and
the immediate nonsuit by Cervantes, Harris County was “the venue of the main action” and the
Court had no discretion to deny Allied’s motion to transfer the case to Harris County.
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Second, that determination is buttressed by § 15.0641 which states that when there are
two defendants in a case, “any action or omission by one defendant in relation to venue,
including a waiver of venue by one defendant, does not operate to impair or diminish the right of
any other defendant to properly challenge venue.” The Court’s denial of Allied’s Motion to
Transfer Venue directly and undeniably violates § 15.0641 because it allows the decision by
Joeris not to challenge the improper venue chosen by Cervantes to strip Allied of its already-
determined right to defend the claims arising out ofCervantes’ injury in Harris County.
When the Court considers the reasoning of the Texas Supreme Court in Team Rocket and
the relationship between Sections 15.062(a) and 15.0641 of the venue statutes, a clear set of
principles emerge:
1. If the venue chosen by the plaintiff is not a county of proper venue, the defendant can
override the plaintiff's choice and have venue transferred to a proper county;
2. Once proper venue is determined, anonsuit by the plaintiff fixes venue in the court of
proper venue, and that venue determination controls all subsequent proceedings between the
parties;
3. No action or omission by another defendant (such as Joeris in this case) can deprive
the other defendant of the right to defend itself in the county that had already been determined by
be a county of proper venue.
This is the only reasonable interpretation of the venue states that will preserve the rights
available to defendants if the plaintiff initiates a case in a county of improper venue. Once the
Court granted Allied’s original Motion to Transfer Venue and Cervantes nonsuited her claims
against Allied, venue was fixed in Harris County for all claims arising out of the same
transaction. The decision by Joeris to filed its Third Party Petition in a county that had already
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been determined to be improper venue — the second wrong — does not make Hidalgo County a
county of proper venue and does not strip Allied of its absolute right to defend itself in Harris
County.
CONCLUSION AND RELIEF REQUESTED
Once venue became fixed over the claims against Allied arising out of Cervantes’ injury,
Cervantes could not make Hidalgo County a county of proper venue by filing a second suit here,
nor could Joeris, who was a party at the time of the original venue. The Court’s denial of
Allied’s Motion to Transfer Venue violates both the language and the purpose of Sections 15.062
and 15.0641. The Court and the parties are bound by this Court’s initial determination that
Hidalgo County is not a county of proper venue.
Allied therefore asks that the Court reconsider its denial of Allied’s Motion to Transfer
Venue and order this case transferred to Harris County, Texas,
, Respectfully submitted,
THOMPSON, COE, COUSINS & IRONS, L.L.P.
By: /s/Michella R. Gibbs
Zandra E. Foley
State Bar No. 24032085
Michella R. Gibbs
State Bar No. 24103731
One Riverway, Suite 1400
Houston, TX 77056
Telephone: (713) 403-8210
Telecopy: (713) 403-8299
E-Mail: zfoley@thompsoncoe.com
E-Mail: mgibbs@thompsoncoe.com
DEFENDANT ALLIED ELECTRICAL
CONTRACTORS, LTD
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been furnished
to all counsel of record on August 9, 2019 via certified mail, return receipt requested, facsimile,
e-mail, and/or e-filing:
Tracy B. Glenn
T. Marshall Holmes
COKINOS \ YOUNG
Four Houston Center
1221 Lamar Street, Floor 16
Houston, Texas 77010
tglenn@cokinoslaw.com
mholmes@cokinoslaw.com
Frank Enriquez
LAW OFFICE OF FRANK ENRIQUEZ
4200-B North Bicentennial Dr.
McAllen, Texas 78504-4160
Email: frank@frankenriquez.com
Email: reyz@frankenriquez.com
s/ Michella R. Gib
Michella R. Gibbs
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Preview
KILLED wayne” 1 Electronically Filed 8/9/2019 5:58 PM Hidalgo County District Clerks MAY 0% 2020 ‘Time:___aecoanty Tome 2099-21531 ccsaesth Reviewed By: Irma Lopez CAUSE NO. C-4504-18-J 8y_____——epaySS CRUCITA D. CERVANTES IN THE DISTRICT COURT OF { ‘ Plaintiffs, V. . JOERIS GENERAL CONTRACTORS, LTD; HIDALGO COUNTY, TEXAS ALLIED ELECTRICAL CONTRACTORS, LTD.; BROTHER'S McCOOL, LLC, Defendants. 430TH JUDICIAL DISTRICT DEFENDANT ALLIED ELECTRICAL CONTRACTORS, LTD.’S MOTION TO RECONSIDER COURT’S ORDER DENYING ALLIED’S MOTION TO TRANSFER VENUE 4 TO THE HONORABLE JUDGE OF SAID COURT: Third Party Defendant Allied Electrical Contractors, Lid. (“Allied”) asks that the Court reconsider its Order of July 3, 2019; denying Allied’s Motion to Transfer Venue to Harris County, Texas. Because this Court fixed venue in Harris County for claims against Allied in the Court’s March 27 Order granting the original Motion to Transfer Venue filed by Allied, transfer is required by Sections 15.062 and 15.0641 of the Texas Civil Practice and Remedies Code. INTRODUCTION In March of 2019, this Court granted Allied’s Motion to Transfer Venue and ordered this case transferred to Harris County, Texas. Now, just a few months later, Allied finds itself back in this Court, defending against claims arising out of the same transaction and the Court has denied Allied’s request to transfer the case back to Harris County. The result is that Allied is a defendant in a court which lacks proper venue over the claims against Allied. Texas has long recognized a policy to “protect defendants from the harassment and expense of several contests on the issue of venue.” In re Team Rocket, L.P., 256 S.W.3d 257, 5 7182625v1 RECORDER'S MEMORANDUM 00514.922 This instrument is of poor quality at the time of imaging Electronically Filed 8/9/2019 5:58 PM Hidalgo County District Clerks Reviewed By: Irma Lopez 261, quoting First Nat'l Bank in Dallas v. Hannay, 123 Tex. 203, 67 S.W.2d 215, 215 (1933) (per curiam). The denial of Allied’s Motion to Transfer Venue violates this principle, leads to inconsistent results, and impermissibly forces Allied to defend itself in an improper venue. The Court has suggested that this inequitable result is mandated by Tex. Civ. Prac. & Rem. Code § 15.062(a), which provides Venue of the main action shall establish venue of a counterclaim, cross claim, or third-party claim properly joined under the Texas Rules of Civil Procedure or any applicable statute. But this statutory provision cannot countenance the Court’s ruling for two reasons. First, the nonsuit by Plaintiff Crucita Cervantes after the Court granted Allied’s original Motion to Transfer Venue fixed venue for all claims against Allied in Harris County. The Court’s more recent volte-face in denying Allied’s second Motion to Transfer Venue creates a direct and irreconcilable conflict with the Court’s earlier venue ruling. The only reasonable way to avoid this conflict is to construe the language “[vJenue in the main action” in § 15.062(a) to mean the Court’s March venue ruling which established proper venue in Harris County. Second, because the claims asserted by Third Party Plaintiff Joeris General Contractors against Allied arise out of the same transaction or occurrence as Cervantes’ claims against Allied, venue for the claims asserted by Joeris is not proper in Hidalgo County. Joeris, however, did not challenge venue in response to the Original Petition filed by Joeris. This means that the Court has sustained venue in Hidalgo County only because Joeris waived its venue rights. Section 15.0641 of the Texas Civil Practice and Remedies Code expressly addresses this situation: In a suit in which two or more defendants are joined, any action or omission by one defendant in relation to venue, including a waiver of venue by one defendant, does not operate to impair or diminish the right of any other defendant to Properly challenge venue. 7182625v1 00514.922 Electronically Filed 8/9/2019 5:58 PM Hidalgo County District Clerks Reviewed By: Irma Lopez Under the Court’s July venue ruling, Allied’s venue right to defend itself in Harris County has been totally destroyed, not simply impaired or diminished. To avoid that destruction, the application of§ 15.0641 preserves that right and results in the case being tried in a court of proper venue. VENUE FACTS AND PROCEDURAL HISTORY 12/17/18 Cervantes files her Original Petition V/4/19 Defendant Brothers McCool (Cervantes’ employer) files Motion to Transfer ‘Venue 1/14/19 Allied files Motion to Transfer Venue 3/25/19 Agreed Motion by Cervantes and McCool to nonsuit McCool with prejudice 3/27/19 Order granting Allied’s Motion to Transfer Venue to Harris County A219 Plaintiff's Expedited Motion to Withdraw Order on Motion to Transfer Venue 4/9/19 Plaintiffs notice of nonsuit without prejudice against Allied A/I1/19 Order granting Plaintiffs Expedited Motion to Withdraw Order on Motion to Transfer Venue (Order is entitled Order Nunc Pro Tunc but there is nothing making the order effective any earlier than 4/11/19) 4/11/19 Defendant Joeris files its Third Party Petition against Allied and McCool. Paragraph 5 alleges: Venue is proper in Harris County, Texas under Section 15.002(a)(1) of the Texas Civil Practice and Remedies Code because all acts or omissions giving rise to this claim occurred in Harris County. However, Plaintiff's underlying suit is currently pending before this Court in Hidalgo Coifnty, Texas. Therefore, Third-Party Plaintiff Joeris files its Third-Party Petition accordingly in Hidalgo, County. AI2A/19 Cervantes files an Objection to Joeris Third Party Petition and alleges that there is no claim against McCool because of the workers compensation bar and states: Defendant JOERIS GENERAL CONTRACTORS, LTD. is suing ALLIED ELECTRICAL CONTRACTORS, LTD. strictly as a ploy for venue. There are no claimed specific acts of negligence against ALLIED ELECTRICAL CONTRACTORS, LTD by JOERIS GENERAL CONTRACTORS, LTD. 7182625v1 00514.922 Electronically Filed 8/9/2019 5:58 PM Hidalgo County District Clerks. Reviewed By: Irma Lopez If Defendant can show evidence of ALLIED ELECTRICAL CONTRACTORS, LTD.’S negligence, then it should be designated as a responsible third party not as an actual third party defendant. (See Teakell v. Perma Stone Co., 658 S.W.2d 563 (Tex. 1983). 5/6/19 Allied files Motion to Transfer Venue to Harris County in response to Third Party Petition 5/31/19 Cervantes files a Reply to Allied’s Motion to Transfer Venue asserting that venue is proper in Hidalgo County (Joeris does not object to the Motion to Transfer Venue) 13/9 Court signs Order denying Allied’s Motion to Transfer Venue 7/16 /19 Court signs Order granting Joeris leave tofile Third Party Petition ANALYSIS There is no doubt that Hidalgo County is not a county of proper venue for any of the claims that have been or could be asserted in this suit. The events that gave rise to the claim all occurred in Harris County and neither Allied, Joeris, nor McCool are residents of Hidalgo County. Under the general statutory venue provision, Tex. Civ. Prac. & Rem. Code § 15.002, proper venue lies either in Harris County or in the county where one of the properly-joined defendants has its principal place of business. The most salient point in the venue analysis in this case is that the Court has previously determined that Hidalgo County is not a court of proper venue for claims against Allied, but Harris County is proper. That is why the Court signed the order in March 2019 ordering that the case be transferred to Harris County. However, because of some unusual procedural peregrinations, this Court has concluded that Allied must defend itself against claims arising out of Cervantes’ injury in Hidalgo County, despite the Court’s initial - and unchallenged — determination that venue is not proper here. This conclusion is at odds with both the language and the spirit of the venue statutes. 7182625v1 00514,922 Electronically Filed 8/9/2019 5:58 PM Hidalgo County District Clerks Reviewed By: Irma Lopez The Texas Supreme Court discussed the effect of a district court’s decision to transfer . venue in Team Rocket. While the plaintiff ordinarily gets the first choice of venue by filing suit in a county chosen by the plaintiff, a defendant may challenge that venue selection under the venue statutes and, if the county chosen by the plaintiff is not a county of proper venue, a district court “shall transfer an action to another county of proper venue.” 256 S.W.3d at 259, quoting Tex. Civ. Prac. & Rem. Code § 15.063(1). Once a court determines that venue should be transferred, “that determination is conclusive as to those parties and those claims. Team Rocket, 256 S.W.3d at 260, citing H.H. Watson Co. v. Cobb Grain Co., 292 S.W. 174, 177 (Tex. Comm’n App.1927, judgm’t adopted) (holding that a plaintiff's nonsuit following the trial court's hearing on a plea of privilege “unalterably fixed the venue of any suit involving any subsequent controversy between the parties, relating to the subject-matter of the original suit in the county where the defendants reside,” and that “[t]he venue of such subsequent suit, if any, has become tes judicata.”). “To interpret the provisions otherwise would allow forum shopping, a practice we have repeatedly prohibited.” Team Rocket, 256 S.W.3d at 260. Thus, even though the plaintiff filed the second suit in a county of proper venue, the district court erred in transferring the case to that county because the prior venue ruling fixed venue for all later proceedings in the case. There is an obvious, but immaterial, difference between Team Rocket and the present case. In Team Rocket, the second suit was initiated by the plaintiff in a different county of proper venue, while in this case the second claims against Allied were filed by Joeris in the same county as the original claims. Even though the second venue chosen by the plaintiff in Team Rocket was proper, the court was still obligated to return the case to the court where venue had 7182625v1 00514.922 Electronically Filed 8/9/2019 5:58 PM Hidalgo County District Clerks Reviewed By: Irma Lopez already been fixed. In the present case, however, Joeris filed its claims against Allied in the same county that had already been determined to be a county of improper venue. The Texas Supreme Court, just like parents and educators for the last several generations, knows that “two wrongs don't make a right.” In re Nat'l Lloyds Ins. Co., 532 S.W.3d 794, 810 (Tex. 2017). Hidalgo County is not a county of proper venue for claims against Allied by Cervantes and Hidalgo County is not a county of proper venue for claims against Allied by Joeris. So under what theory of jurisprudence can two improper venue choices transmogrify into one proper venue choice? Obviously they can’t, and the flaw in that reasoning arises from two S separate provisions in the venue statutes. First, § 15.062(a) mandates that “[vjenue of the main action shall establish venue of a counterclaim, cross claim, or third-party claim properly joined under the Texas Rules of Civil Procedure or any applicable statute.” When Joeris filed its Third Party Petition in April of 2019, the issue of venue was not a clean slate; the Court had already determined that venue of the claims arising out of Cervantes’ injury was Harris County, and therefore the “venue of the main action” had already been determined by this Court to be Harris County. The Court’s March order granting Allied’s Motion to Transfer Venue, followed by Cervantes’ nonsuit of her claims against Allied, fixed venue for all claims against Allied arising out of the injury in Harris County. That is true not only as to Cervantes, but also as to Joeris, who was a party in the case at the time of the March order. See Team Rocket, 256 S.W.3d at 260 (once a court determines that venue should be transferred, “that determination is conclusive as to those parties and those claims”). Because venue in Harris County was fixed by the March order transferring venue and the immediate nonsuit by Cervantes, Harris County was “the venue of the main action” and the Court had no discretion to deny Allied’s motion to transfer the case to Harris County. 7182625v1 00514.922 Electronically Filed 8/9/2019 5:58 PM Hidalgo County District Clerks Reviewed By: Irma Lopez Second, that determination is buttressed by § 15.0641 which states that when there are two defendants in a case, “any action or omission by one defendant in relation to venue, including a waiver of venue by one defendant, does not operate to impair or diminish the right of any other defendant to properly challenge venue.” The Court’s denial of Allied’s Motion to Transfer Venue directly and undeniably violates § 15.0641 because it allows the decision by Joeris not to challenge the improper venue chosen by Cervantes to strip Allied of its already- determined right to defend the claims arising out ofCervantes’ injury in Harris County. When the Court considers the reasoning of the Texas Supreme Court in Team Rocket and the relationship between Sections 15.062(a) and 15.0641 of the venue statutes, a clear set of principles emerge: 1. If the venue chosen by the plaintiff is not a county of proper venue, the defendant can override the plaintiff's choice and have venue transferred to a proper county; 2. Once proper venue is determined, anonsuit by the plaintiff fixes venue in the court of proper venue, and that venue determination controls all subsequent proceedings between the parties; 3. No action or omission by another defendant (such as Joeris in this case) can deprive the other defendant of the right to defend itself in the county that had already been determined by be a county of proper venue. This is the only reasonable interpretation of the venue states that will preserve the rights available to defendants if the plaintiff initiates a case in a county of improper venue. Once the Court granted Allied’s original Motion to Transfer Venue and Cervantes nonsuited her claims against Allied, venue was fixed in Harris County for all claims arising out of the same transaction. The decision by Joeris to filed its Third Party Petition in a county that had already 7182625v1 00514.922 Electronically Filed 8/9/2019 5:58 PM Hidalgo County District Clerks Reviewed By: Irma Lopez been determined to be improper venue — the second wrong — does not make Hidalgo County a county of proper venue and does not strip Allied of its absolute right to defend itself in Harris County. CONCLUSION AND RELIEF REQUESTED Once venue became fixed over the claims against Allied arising out of Cervantes’ injury, Cervantes could not make Hidalgo County a county of proper venue by filing a second suit here, nor could Joeris, who was a party at the time of the original venue. The Court’s denial of Allied’s Motion to Transfer Venue violates both the language and the purpose of Sections 15.062 and 15.0641. The Court and the parties are bound by this Court’s initial determination that Hidalgo County is not a county of proper venue. Allied therefore asks that the Court reconsider its denial of Allied’s Motion to Transfer Venue and order this case transferred to Harris County, Texas, , Respectfully submitted, THOMPSON, COE, COUSINS & IRONS, L.L.P. By: /s/Michella R. Gibbs Zandra E. Foley State Bar No. 24032085 Michella R. Gibbs State Bar No. 24103731 One Riverway, Suite 1400 Houston, TX 77056 Telephone: (713) 403-8210 Telecopy: (713) 403-8299 E-Mail: zfoley@thompsoncoe.com E-Mail: mgibbs@thompsoncoe.com DEFENDANT ALLIED ELECTRICAL CONTRACTORS, LTD 7182625v1 00514.922 Electronically Filed 8/9/2019 5:58 PM Hidalgo County District Clerks Reviewed By: Irma Lopez CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been furnished to all counsel of record on August 9, 2019 via certified mail, return receipt requested, facsimile, e-mail, and/or e-filing: Tracy B. Glenn T. Marshall Holmes COKINOS \ YOUNG Four Houston Center 1221 Lamar Street, Floor 16 Houston, Texas 77010 tglenn@cokinoslaw.com mholmes@cokinoslaw.com Frank Enriquez LAW OFFICE OF FRANK ENRIQUEZ 4200-B North Bicentennial Dr. McAllen, Texas 78504-4160 Email: frank@frankenriquez.com Email: reyz@frankenriquez.com s/ Michella R. Gib Michella R. Gibbs 7182625v1 00514.922