Pedison USA, Inc. and Dickson Ewemade v. CNC Construction Inc. ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00271-CV
PEDISON USA, INC. AND APPELLANTS
DICKSON EWEMADE
V.
CNC CONSTRUCTION INC. APPELLEE
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 048-263530-13
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MEMORANDUM OPINION1
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I. INTRODUCTION
Although the procedural history of this case has some twists and turns, the
dispositive facts are straightforward. The notice of appeal filed by Appellants
Pedison USA, Inc. and Dickson Ewemade recites that they perfected this
1
See Tex. R. App. P. 47.4.
interlocutory appeal pursuant to Texas Civil Practice and Remedies Code
Section 15.003(c). See Tex. Civ. Prac. & Rem. Code Ann. § 15.003(c) (West
Supp. 2016). Because, for the reasons set forth below, we hold that we lack
jurisdiction over this interlocutory appeal, we will dismiss it.
II. PERTINENT FACTUAL AND PROCEDURAL BACKGROUND
Appellee CNC Construction Inc., a defendant in the suit below, filed third-
party claims against Appellants. Appellants filed answers and pleas to the
jurisdiction.2 Sixteen months later, Appellants filed a motion to sever the third-
party claims and to transfer venue to Dallas County.3 Subsequently, the original
plaintiff dismissed the suit against all defendants, leaving only the third-party
claims pending in the trial court. After a hearing, the trial court signed an order
denying Appellants’ motion to sever and transfer venue. Appellants then filed
their notice of appeal.
III. VENUE FOR APPELLEE’S THIRD-PARTY CLAIMS
AND NO INTERLOCUTORY APPEAL UNDER SECTION 15.003(C)
Texas Civil Practice and Remedies Code Section 15.062, titled,
“Counterclaims, Cross Claims, and Third-Party Claims,” provides that: “(a)
Venue of the main action shall establish venue of a counterclaim, cross claim, or
2
Appellant Pedison USA, Inc. also filed suit against Appellee CNC
Construction Inc. in Dallas County. That suit was abated.
3
Appellants’ motion to transfer venue did not allege any mandatory venue
provisions; it simply alleged venue was proper in Dallas County under section
15.002(a)’s general venue provision. See Tex. Civ. Prac. & Rem. Code Ann.
§ 15.002(a) (West 2002).
2
third-party claim properly joined under the Texas Rules of Civil Procedure or any
applicable statute.” Tex. Civ. Prac. & Rem. Code Ann. § 15.062(a) (West 2002).
Thus, when Appellants were joined as third-party defendants, venue was
determined by the main action––which was pending in Tarrant County. See
Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988); In re Cty. of
Galveston, 211 S.W.3d 879, 882 (Tex. App.––Houston [14th Dist.] 2006, orig.
proceeding) (holding section 15.062 third-party-venue provision controlled over
other mandatory venue provision); see also In re Perryman, No. 14-13-00131-
CV, 2013 WL 1384914, at *2 (Tex. App.—Houston [14th Dist.] Apr. 4, 2013, orig.
proceeding) (mem. op.) (same).
Although Appellants’ notice of appeal alleges that this interlocutory appeal
is authorized by Texas Civil Practice and Remedies Code Section 15.003, it is
not. See Tex. Civ. Prac. & Rem. Code Ann. § 15.003. Section 15.003 is titled,
“Multiple Plaintiffs and Intervening Plaintiffs.” Id. It requires, “[i]n a suit in which
there is more than one plaintiff, whether the plaintiffs are included by joinder, by
intervention, because the lawsuit was begun by more than one plaintiff, or
otherwise,” that each plaintiff “independently of every other plaintiff, establish
proper venue.” Id. An interlocutory appeal is authorized only from a trial court’s
determination of whether a plaintiff independently established proper venue or
met the requirements prescribed by subsections (a)(1)–(4). Id.
The lawsuit in the trial court is not a suit in which there is more than one
plaintiff. Appellee sued Appellants as third-party defendants. Section 15.003 is
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inapplicable to a defendant’s third-party claim against third-party defendants.
See Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 558 n.16 (Tex. 2014) (“[A]
third-party plaintiff . . . is not a ‘plaintiff’ but a ‘defendant suing a non-party.’”); see
also Harding Bars, LLC v. McCaskill, 374 S.W.3d 517, 520 (Tex. App.—San
Antonio 2012, pet. denied) (holding that cross-claim did not transfer party into a
“plaintiff” because party was already part of the suit). Section 15.062 governs
venue of third-party claims, not section 15.003. See Hopson v. Dallas ISD, No.
05-02-01819-CV, 2003 WL 402881, at *2 (Tex. App.—Dallas Feb. 24, 2003, pet.
denied) (mem. op.) (holding that joinder of third–party claims is governed by
section 15.062, not section 15.003).
Accordingly, no statutory authority exists for Appellants’ interlocutory
appeal of the trial court’s denial of their motion to sever and transfer venue of the
third-party claims.4 See, e.g., CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex.
2011) (recognizing that appellate courts lack jurisdiction over interlocutory
appeals in the absence of a statutory provision permitting such an appeal); Am.
Home Prods. Corp. v. Clark, 38 S.W.3d 92, 96 (Tex. 2000) (“[N]o interlocutory
appeal shall lie from a trial court’s determination of a venue question.”);
Progressive Cty. Mut. Ins. Co. v. Anderson, No. 05-10-00103-CV, 2010 WL
4
Likewise, the issues raised by Appellants do not comport with a section
15.003(c) appeal. Appellants four issues complain that Appellee did not properly
join Appellants as third-party defendants, that Appellants’ motion to sever and
transfer venue was not untimely filed, that Appellee’s filing of an amended
pleading allowed venue to be challenged, and that the trial court erred by
considering a response filed by Appellee.
4
716426, at *1 (Tex. App.—Dallas Mar. 3, 2010, no pet.) (mem. op.) (holding that
order denying motion to sever is not appealable by interlocutory appeal).
IV. CONCLUSION
Having determined that we lack jurisdiction over this interlocutory appeal
from the trial court’s denial of Appellants’ motion to sever and transfer venue, we
dismiss this appeal.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.
DELIVERED: November 23, 2016
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