Ramiro Garza and J&R Valley Oilfield Services, Inc. v. Ines Gonzalez Garcia ( 2004 )

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 02-0300

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Ramiro Garza and J&R Valley Oilfield Services, Inc., Petitioners,

v.

Ines Gonzalez Garcia, Respondent

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On Petition for Review from the

Court of Appeals for the Thirteenth District of Texas

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Argued January 22, 2003

Justice Brister delivered the opinion of the Court, in which Justice Hecht, Justice Owen, Justice O=Neill, Justice Schneider and Justice Smith joined.

CHIEF JUSTICE PHILLIPS filed a dissenting opinion, in which JUSTICE WAINWRIGHT joined as to Parts I and II.

Justice Wainwright filed a dissenting opinion.

Justice Jefferson did not participate in the decision.

The Legislature amended the venue statutes in 1995 to allow a trial court to transfer venue A[f]or the convenience of the parties and witnesses and in the interest of justice.@[1]  At the same time, the Legislature mandated that a trial court=s order granting or denying such a transfer for convenience is Anot grounds for appeal or mandamus and is not reversible error.@[2]

In this case, a defendant filed a motion asserting both improper venue and inconvenience, which the trial court granted without specifying the grounds.  Generally, we must affirm such general orders if any ground in the accompanying motion is meritorious.[3]  Because the motion here asserted convenience as one ground, and the statute precludes reversal of any ruling made on convenience grounds, we hold the court of appeals erred in considering and reversing the trial court=s venue order.

I

As an initial matter, we must decide whether a motion for new trial extends appellate timetables if the requisite filing fee is never paid.  Garcia timely filed a motion for new trial,[4] but never paid the fee.[5]  She filed her notice of appeal eighty-four days after judgment C timely if her motion extended the deadlines, but too late if it did not.[6]  The defendants argue the fee-less motion was ineffective to extend appellate deadlines, making Garcia=s notice of appeal untimely, and depriving the court of appeals of jurisdiction over her appeal.[7]  We disagree.

A motion for new trial is Aconditionally filed@ if tendered without the requisite fee, and appellate deadlines run from and are extended by that date:  

[A] motion for new trial tendered without the necessary filing fee is nonetheless conditionally filed when it is presented to the clerk, and that date controls for purposes of the appellate timetable. . . .  [T]he failure to pay the fee before the motion is overruled by operation of law may forfeit altogether the movant's opportunity to have the trial court consider the motion; it does not, however, retroactively invalidate the conditional filing for purposes of the appellate timetable.[8]

Although we have previously reserved ruling on a fee that was never paid,[9] we now extend the same rule to this situation for the same reasons.  We construe the Rules of Appellate Procedure liberally, so that decisions turn on substance rather than procedural technicality;[10] nothing in those rules requires a fee to accompany a motion for new trial, or that such a fee be paid at all. Moreover, once a motion for new trial is conditionally filed and timetables extended, all litigants benefit from knowing what timetables apply even if they do not know whether the requisite fee was paid.  The alternative would breed uncertainty, as the deadlines might automatically jump forward when the fee is quietly paid or revert backwards if it is not.

This is not to say filing fees are irrelevant. We have held that Aabsent emergency or other rare circumstances@ a motion for new trial should not be considered until the filing fee is paid.[11]  Here, Garcia=s factual sufficiency complaint had to be raised in a motion for new trial,[12] but because she never paid the $15 fee, the trial court was not required to review it.  As her complaint was never properly made to the trial court, it preserved nothing for review;[13] thus, the court of appeals correctly never addressed her factual sufficiency complaint, but correctly considered her venue complaint.

II

The record reflects that petitioner Ines Gonzalez Garcia (a resident of Hidalgo County) brought suit against J&R Valley Oilfield Services, Inc. (a business in Hidalgo County) and Ramiro Garza (a resident of either Hidalgo or Starr County) concerning an auto accident occurring in Hidalgo County.  Of sixteen potential lay and expert witnesses designated by the parties, fourteen were residents of Hidalgo County, and two of Mexico.  None resided in Starr County.  Nevertheless, suit was brought in Starr County, based on evidence that Garza lived there.

J&R=s motion to transfer venue (which Garza joined) argued that Starr County was not a county of proper venue, and added A[a]lternatively, your Defendant would show that venue should be transferred to Hidalgo County for the convenience of the parties.@  The trial court=s order stated that Aafter considering the motion, the pleadings, the affidavits, the responses as well as arguments of counsel and after a hearing, the Court grants Defendants= Motion to Transfer Venue.@

At the trial in Hidalgo County, the jury awarded Garcia $120,000.  Unsatisfied, she appealed seeking automatic reversal and a new trial based on the venue transfer.[14]

The court of appeals reversed, refusing to presume a venue order was granted on convenience grounds unless the order specifically said so.[15]  In addition to reversing the traditional presumption applicable to all other orders, this rule would sometimes do just what the Legislature prohibited. Because the transfer order here includes no reasons, we cannot be certain on which of the two grounds it was granted; one ground was convenience, and the evidence showed most of the witnesses and all of the events took place in Hidalgo County.  As the Starr County judge certainly might have intended to grant it on convenience grounds, we cannot ignore the Legislature=s ban on reviewing such orders by adopting a new presumption so we can review them anyway.

The court of appeals refused to imply a finding on convenience grounds because the statutory prohibition on appellate review precluded reviewing the record for evidence that might support such an implied finding.[16]  But the statute precludes review not just of the evidence, but of the order itself.  As a result, it is irrelevant whether a transfer for convenience is supported by any record 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.

We acknowledge the court of appeals= concern that the usual presumption in favor of nonspecific orders will make many venue orders Aimmune from review.@[17]  But in transfer orders based on convenience, that appears to have been precisely the Legislature=s intent.  And even under the court of appeals= bright-line test, trial judges who are so inclined may make any venue order immune from review simply by adding Agranted on convenience grounds.@

Nor do we believe the potential for error or injustice here justifies making an exception to the general rule that trial judges and lawyers need not detail specific findings in every order.[18]  When a defendant files a motion based on both convenience and another venue ground, a trial judge may grant the motion on the former ground and we cannot review it. Or the judge may deny both, in which case we may review only the latter.  The court of appeals was concerned a trial judge might intend to deny a motion based on convenience while granting (erroneously) the motion on an alternative ground.  But most venue provisions are based on notions of convenience.  As the county where the parties reside or the events occurred will often be the most convenient, we decline to change our usual presumption rules to presume the opposite.

Our dissenting colleagues conclude the trial court could not possibly have granted this transfer on convenience grounds, but do so only after looking beyond the motion and order to the supporting evidence and the attorneys= arguments C exactly the kind of appellate review the statute precludes.  They would remand to Hidalgo County, where the case could be transferred again (using the magic words Afor convenience@ this time), tried again in Starr County, and appealed again.  This is exactly the kind of piecemeal review and relitigation our usual presumption is intended to avoid.

Our dissenting colleagues argue our strict construction presumes the Legislature was either naive or cynical,[19] but they appear willing to presume most trial judges who sign a venue order without specifying the grounds are ignorant of what they are signing or playing keep-away with appellate courts. They assert we have Aswallowed@ the defendants= arguments based on the literal words of this statute;[20] but in a government of separate and limited powers, it is not our role to spit out those parts of a statute we find unpalatable.  Nor can we make an exception Ajust this once@ (as our colleagues suggest) because our venue rules are peculiar and of Acritical importance;@[21] undoubtedly, some might say the same about our rules for voir dire, the jury shuffle, or Athe Rule.@  If we begin adding our own requirements to statutes, it becomes only a matter of personal preference as to where we should stop.

Finally, we do not believe the movant=s convenience motion must be more specific than the one here, at least when it is part of a motion asserting other venue grounds and there is no special exception.  For example, under the general venue rule in section 15.002(a), the movant must plead venue facts (and support them with affidavits if necessary) that show no individual defendant resides in the forum county, no defendant business has its principal Texas office there, and a substantial part of the events did not occur there.[22]  While a movant has every reason to add more facts in an effort to prevail, if those reasons alone are enough to convince the trial judge that the case would be more conveniently tried elsewhere, it would be mere formalism to reverse because they were not stated under two different headings.

While appellate justices may chafe at restrictions on appellate review, the Texas Constitution generally allows the Legislature to expand or limit such review as it sees fit.[23]  Nor is the restriction here unreasonable under these circumstances.  Debates in the Legislature indicate the transfer for convenience statute was intended Ato make sure that venue is not a game any longer@ by giving trial judges some power to ensure cases were tried where they sensibly belonged, but without adding reversible error or additional delays.[24]  This case was tried four years ago, and has been on appeal ever since.  The Legislature might reasonably have concluded that discretionary transfers would make litigation more convenient only if they did not have to be re-fought on appeal.  Accordingly, we hold the court of appeals erred by reversing the venue order here.

III

Because the court of appeals should have affirmed the trial court=s transfer order on convenience grounds, we reverse the court of appeals= judgment.  Because Garcia failed to preserve her remaining factual sufficiency point (by failing to ever pay the filing fee), we render judgment reinstating the trial court=s judgment.

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Scott Brister

Justice

OPINION DELIVERED:  May 14, 2004     

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^[1] Act of May 18, 1995, 74th Leg., R.S., ch. 138, ' 1, 1995 Tex. Gen. Laws 978, 979 (currently codified at Tex. Civ. Prac. & Rem. Code ' 15.002(b)).

^[2] Id. (currently codified at Tex. Civ. Prac. & Rem. Code ' 15.002(c)).

^[3] Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (motion for summary judgment); K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (motion to exclude expert); IKB Indus. (Nigeria) Ltd. v. Pro‑Line Corp., 938 S.W.2d 440, 445 (Tex. 1997) (findings of fact and conclusions of law); see also M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 706 (Tex. 2001) (plea to the jurisdiction).

^[4] The trial court signed the judgment on August 10, 2000.  Because the due date fell on a Saturday, her motion was due the following Monday. Tex. R. App. P. 4.1(a).

^[5] Tex. Gov=t Code ' 51.317(b)(2) (requiring district clerk to collect $15 filing fee for motion for new trial).

^[6] Tex. R. App. P. 26.1(a)(1) (providing notice of appeal must be filed within thirty days of judgment, or ninety days if any party timely files a motion for new trial).

^[7] See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) ( A[O]nce the period for granting a motion for extension of time under Rule 41(a)(2) has passed, a party can no longer invoke the appellate court=s jurisdiction.@).

^[8] Tate v. E.I. DuPont de Nemours & Co., 934 S.W.2d 83, 83-84 (Tex. 1996) (per curiam) (emphasis in original) (holding deadlines extended by fee paid after motion was overruled but before plenary jurisdiction expired, and quoting in part Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993) (per curiam) (holding deadlines extended by fee paid before motion overruled)).

^[9] Tate, 934 S.W.2d at 84 n.1.

^[10] Motor Vehicle Bd. of Tex. Dep=t of Transp. v. El Paso Indep. Auto. Dealers Ass'n, Inc., 1 S.W.3d 108, 111 (Tex. 1999) (per curiam).

^[11] Jamar, 868 S.W.2d at 319 n.3.

^[12] Tex. R. Civ. P. 324(b)(2); Tex. R. App. P. 33.1(a).

^[13] Tex. R. App. P. 33.1(a), (b).

^[14] Tex. Civ. Prac. & Rem. Code ' 15.064(b).

^[15] 70 S.W.3d 362, 367.

^[16] Id.; see Tex. Civ. Prac. & Rem. Code ' 15.064(a).

^[17] 70 S.W.3d at 367-68.

^[18] See Tex. R. Civ. P. 299.

^[19] ___ S.W.3d ___.

^[20] Id. at ___.

^[21] Id. at ___.

^[22] See Tex. Civ. Prac. & Rem. Code ' 15.002(a); Tex. R. Civ. P. 86(3), 87(3)(a).

^[23] Tex. Const. art. V, ' 3(a) (providing jurisdiction of Supreme Court Ashall extend to all cases except in criminal law matters and as otherwise provided in this Constitution or by law@); id. ' 6(a) (providing courts of appeals Ahave original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law@); see Collins v. Ison-Newsome, 73 S.W.3d 178, 180 (Tex. 2001) ("Our jurisdictional analysis begins with the basic principle that we do not have jurisdiction in the absence of an express constitutional or legislative grant.") (citing Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996)).

^[24] Debate on S.B. 32 on the Floor of the House, 74th Leg., R.S. 4 (May 3, 1995) (testimony of Rep. Duncan) (transcript available at the Texas State Law Library).