Double Diamond-Delaware, Inc., Double Diamond, Inc., White Bluff Club Corporation, National Resort Management Company, R. Michael Ward, Fred Curran, and White Bluff Property Owners Association, Inc. v. Jeanette Alfonso, Eugenio Corpus, Fe Huevos, Elezar Nuique, Editha and Reynaldo Pepito, Simonette and Julito Pepito, Cherry Somosot, and Nelia Vicente ( 2015 )

ACCEPTED
13-14-00324-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
11/18/2015 10:13:41 AM
Dorian E. Ramirez
CLERK
PETER M. KELLY MORGAN MCPHEETERS
F. LEIGHTON DURHAM III CHRISTY WOLLIN
KIRK L. PITTARD FILED IN
13th COURT OF APPEALS
THAD D. SPALDING CORPUS CHRISTI/EDINBURG, TEXAS OF COUNSEL:
EIGH PRICHARD BRADFORD
11/18/2015 10:13:41LAM
DORIAN E. RAMIREZ
Clerk
November 18, 2015
Dorian E. Ramirez
Clerk, Thirteenth Court of Appeals
901 Leopard, 10th Floor
Corpus Christi, TX 78401
RE: Case No. 13-14-00324-CV; Double Diamond-Delaware, Inc., et al. v.
Jeanette Alfonso, et al.
Dear Ms. Ramirez:
This letter is to also address the question raised by the Panel during the
October 21, 2015 oral argument in this case and to respond to the Appellants’
November 4, 2015 letter brief. Please circulate this letter to Justices Rodriguez,
Garza, and Longoria.
1. The scope of this Court’s review of the venue evidence presented to
the trial court.
During argument, Justice Longoria asked whether the Court could
consider the entire record before Judge Ramirez when he decided the venue
issue. In context, the question stemmed from the fact that when the trial
court’s venue determination was made, it was made in relation to a much
broader group of plaintiffs than were ultimately parties to the summary
judgment ruling. In making the venue ruling, the trial court had before it a
much larger group of plaintiffs and necessarily the evidence presented by
those plaintiffs. Justice Longoria simply asked whether this Court could
consider all of the evidence that was before the trial court when it decided the
issue. The simple answer to this question is “yes.”
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Ms. Dorian E. Ramirez
November 18, 2015
Page 2 of 5
This Court is required to consider the entire record. Section 15.064(b) of
the Civil Practice and Remedies Code specifically provides that, in
determining whether venue was proper, the appellate court must consider the
entire record, including the trial on the merits. Thus, the applicable standard
of review requires that the Court’s review extend beyond the record before the
trial court when it first decided the venue issue. See Ruiz v. Conoco, Inc., 868
S.W.2d 752, 758 (Tex. 1993) (“if there is any probative evidence in the entire
record, including trial on the merits, that venue was proper in the county
where judgment was rendered, the appellate court must uphold the trial
court's determination.”). If review beyond the venue record is required,
certainly review is expansive enough to allow the trial court to consider all of
the evidence before the trial court at the venue hearing, even if the parties
who reach final judgment are less than were included in the venue ruling.
After all, the purpose of this Court’s review is to let the trial court’s venue
ruling stand so long as there is any probative evidence anywhere in the record
to support it.
The Appellants’ discussion of “tag-along” venue and the requirement
that “each plaintiff, independently of every other plaintiff, establish proper
venue” is well-taken, but misplaced here. Appellees have never argued that
each plaintiff was not required to independently establish proper venue. The
undersigned’s position at oral argument was simply that this Court could
consider all of the evidence that was before the trial court when it decided the
venue issue, including the evidence presented by other plaintiffs.
Certainly, if this Court can consider evidence presented at a trial on the
merits (or, in this case, in the summary judgment context), this Court can
consider evidence presented by other plaintiffs who were parties to the venue
hearing, particularly when such evidence is relevant to the parties to this
appeal. For example, in the context of this case, all of the Plaintiffs’ claims
stem from misrepresentations and failures to disclose made by the Appellants
in the process of marketing the properties to residents of Hidalgo County.
(Supp’l CR 90-94). These misrepresentations were based, at least in part if not
in whole, on a marketing scheme which targeted Hidalgo County residents
Ms. Dorian E. Ramirez
November 18, 2015
Page 3 of 5
and their friends and family. Even the Appellants admit to targeting Hidalgo
County residents as part of their marketing, the only difference being that
Appellants claimed that they did not target new property owners—only
existing property owners for purposes of obtaining other Hidalgo County
referrals. (3 CR 1654 at ¶¶3-4). To the extent other plaintiffs’ venue proof
contradicts this general claim, and provides probative evidence in support of
the Appellees’ position that Appellants’ general marketing strategies in
Hidalgo County extended beyond just existing customers, that evidence could
be considered as to those Plaintiffs (Eugenio Corpus, Fe Huevos, Edith and
Reynaldo Pepito, Simonette and Julito Pepito, Elezar Nuique, and Nelia
Vincente) who were new buyers.1
Ultimately, as Appellees’ made clear in their brief, each Plaintiff
independently established proper venue. See Appellees’ Brief at 25-34.
Appellees did not address the other plaintiffs’ venue proof because it was
unnecessary and cumulative. Nevertheless, such evidence remains a part of
the record before this Court and this Court is required to consider that
evidence before making a venue determination contrary to that of the the trial
court. Accordingly, this Court must consider all of the relevant evidence that
was before the trial court when it ruled and, upon doing so, should affirm the
trial court’s finding that venue in Hidalgo County is proper.
2. The pending Dallas County case.
Although the Panel’s request for post-submission briefing did not
expressly include this issue, the Panel asked questions at oral argument about
any relationship between this Court’s decision regarding summary judgment
and the Dallas County case involving other Plaintiffs. Specifically, the Panel
appeared concerned that a decision here might conflict with a decision in the
Dallas case.
1Appellees Jeanette Alfonso and Cherry Somosot were existing property owners who were
contacted directly in Hidalgo County and convinced to trade-up to another property. (2 CR
262-64, 629).
Ms. Dorian E. Ramirez
November 18, 2015
Page 4 of 5
Currently, the ruling in the Dallas County trial court is consistent with
the trial court’s substantive ruling in this case. (7 CR 3840-42). The only real
difference between the two judgments is that the one in Dallas County
remains interlocutory and not appealable. However, the Dallas court has
advised the parties that it intends to leave the ruling undisturbed pending the
outcome of this appeal. By all appearances, the Dallas County court is
awaiting this Court’s decision on the substantive merits of the judgment in an
effort to maintain consistency between the two cases.
Ruling on the substantive issues here makes logical sense. The parties
have exhaustively briefed those issues, and the case is ripe for a decision. The
underlying Hidalgo County case has been pending over four years now. The
Dallas County case is also over four years old. All sides to both cases would
benefit from a decision on the substantive merits so that the litigation can
move forward to a conclusion.
Reaching the substantive issues is also legally correct. Venue was proper
in Hidalgo County, and the trial court’s venue ruling should be affirmed.
Upon doing so, this Court can address the substantive issues, affirm the trial
court’s judgment in favor of Appellees, and allow the remainder of the
actions, in both Hidalgo County and Dallas County trial courts, to go forward
with the benefit of this Court’s guidance.
Sincerely,
/s/ Thad D. Spalding
Thad D. Spalding
TDS/kl
cc: Brandy Wingate Voss (brandy@appealsplus.com)
John D. Sloan, Jr. (jsloan@sloantmatnety.com)
Douglas Lukasik (dlukasik@sloanmatney.com)
Ms. Dorian E. Ramirez
November 18, 2015
Page 5 of 5
Abigail Mathews (amathews@sloanmatney.com)
Chris Franz (ccf@peralezfranzlaw.com)
Gil Peralez (gpp@peralezfranzlaw.com)
Richard A. Sayles (dsayles@swtriallaw.com)
Shawn Long (slong@swtriallaw.com)
Darren Nicholson (dnicholson@swtriallaw.com)
Mike Mills (mkmills@atlashall.com)
Martin Rose (mrose@rosewalker.com)
Christopher M. McDowell (cmcdowell@rosewalker.com)
Barbara T. Hale (bhale@metrocrestlaw.com)
Lynda Lee Weaver (llw@llweaverlaw.com)
Preston Henrichson (preston@henrichsonlaw.com)