in Re Mike Hooks, Inc ( 2012 )

Opinion issued August 23, 2012.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00503-CV
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IN RE MIKE HOOKS, INC. Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
In this original proceeding, relator Mike Hooks, Inc. seeks mandamus relief
from the trial court’s order denying transfer under the local rules for Galveston
County.1 We conditionally grant the petition for writ of mandamus.
1
The underlying proceeding is Gilberto Adame & Francisco Ozuna v. Mike Hooks,
Inc., No. 11-CV-0694, in the 212th District Court, Galveston County, Texas, the
Honorable Susan Criss presiding.
Background
Adame and Ozuna are plaintiffs in the underlying action. They allege that
they suffered injuries aboard Hooks’s vessel. They sued Hooks for negligence
under the Jones Act and for unseaworthiness of the vessel and maintenance and
cure benefits under the general maritime law.
Adame first filed suit in Harris County on September 25, 2009. Four days
later, he nonsuited the Harris County suit and filed suit in the Galveston County
Court at Law Number 2.
In October 2009, Ozuna sued Hooks in district court in Starr County. Ozuna
and Hooks conducted some written discovery, but, on January 5, 2010, Ozuna
nonsuited the case in Starr County. The next day, Ozuna intervened in Adams’s
case in Galveston County Court at Law Number Two.
On April 25, 2011, over a year after Ozuna joined the suit, and after
conducting discovery, Adame and Ozuna nonsuited their case. The next day, they
filed suit in Galveston County District Court. It is undisputed that the parties and
the underlying facts in the district court case are the same as those in the County
Court at Law Number Two case.
On June 30, 2011, Hooks moved the district court to transfer the case to
County Court at Law Number 2 pursuant to a local rule. On August 29, 2011, the
trial court held a hearing on the motion to transfer. Both parties filed supplemental
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briefing in the following weeks. The trial court held a second hearing on October
17, 2011 and informed the parties it would take the motion under advisement.
Hooks set the matter for a third hearing on March 26, 2012. After the hearing, the
trial court did not rule on the motion; instead, it again stated it would take the
matter under advisement.
Finally, on May 8, 2012, Hooks filed a petition for writ of mandamus in this
court, seeking to compel the trial court to rule on the motion to transfer and
seeking a stay of trial court proceedings pending this court’s decision on the
petition. The next day, the trial court denied the motion. Accordingly, this court
dismissed the previously filed petition for writ of mandamus. Hooks now brings
this original proceeding, contending that the trial court abused its discretion in
denying the motion to transfer.
Mandamus Standard
Mandamus is available to correct a trial court’s abuse of discretion when
there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding).
Discussion
A. Galveston County Local Rules
The district and statutory county courts of Galveston County are required to
adopt local rules of administration that provide, in part, for “assignment, docketing,
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transfer, and hearing of all cases, subject to jurisdictional limitations of the district
courts and statutory county courts.” TEX. GOV’T CODE ANN. § 74.093(b)(1) (West
Supp. 2011). The district courts and the county courts at law in Galveston County
have separately adopted their own local rules. For purposes of this proceeding, the
rules are identical, except where specifically noted in this opinion.2 Local Rule
3.10 provides for the assignment of cases to a court upon the initial filing. While
the district and county courts at law versions of this rule differ in specifics, both
state that “[o]nce assigned to a Court, a case will remain on the docket of that
Court for all purposes unless transferred as hereinafter provided.” Local Rule 3.10.
Local Rule 3.11 governs transfer of cases. Subsection D requires that a case
that is non-suited and then re-filed be assigned to the court in which it was first
pending:
D. Non Suit. If a case is filed in which there is a substantial
identity of parties and causes of action as in a non-suited case,
the later case shall be assigned to the Court where the prior case
was pending.
Subsections I and J describe who is authorized to effect a transfer, and how:
I. Improper Court. If a case is on the docket of a Court by any
manner other than as prescribed by these rules, the Local
Administrative County Court at Law Judge [or Local
Administrative District Judge] shall transfer the case to the
2
The local rules are called the “Amended Local Rules of the District Courts for
Galveston County, Texas” and the “Amended Local Rules of the County Courts at
Law for Galveston County, Texas.” In this opinion, we simply refer to them as the
“Local Rules” and will differentiate only when necessary.
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proper Court.
J. Rules related to the transfer and assignment of any civil case
[are] exercised freely between all courts having concurrent
jurisdiction in civil matters.
Local Rule 3.11.
B. Abuse of Discretion
“A trial court abuses its discretion if ‘it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law’ or if it clearly
fails to correctly analyze or apply the law.” In re Cerberus Cap. Mgmt., L.P., 164
S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (quoting Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)). The Code Construction Act
applies to rules adopted under a code. TEX. GOV’T CODE ANN. § 311.002(4) (West
2005). The Galveston County Local Rules were adopted pursuant to section
74.093 of the Texas Government Code. See TEX. GOV’T CODE ANN. § 74.093(a).
The Code Construction Act, therefore, applies to the Local Rules. However, the
starting point of any analysis of a rule or statute is the “plain and common
meaning” of the words used. See Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 529
(Tex. 2002).
To determine whether the trial court analyzed and applied the law correctly,
we begin, then, with the plain and common meaning of the language used in the
Local Rules. See Argonaut Ins. Co., 87 S.W.3d at 529. Local Rule 3.10 provides
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that cases filed in the county courts at law are, generally, assigned only to county
courts at law and cases filed in the district courts are assigned only to district
courts. But the Local Rules also plainly state that cases, once assigned, are to
remain in the assigned court “unless transferred as hereinafter provided.”
Local Rule 3.11D, one of the transfer rules, states a nonsuited case with
“substantial identity of parties and causes of action . . . shall be assigned” to the
court in which the prior case was pending. Local Rule 3.11D (emphasis added).
The use of the word “shall” imposes a duty, limiting the court’s discretion in the
matter. See TEX. GOV’T CODE ANN. § 311.016(1), (2) (West 2005) (stating word
“may” “creates discretionary authority or grants permission or a power” while
word “shall” “imposes a duty”); Robinson v. Budget Rent-A-Car Sys., Inc., 51
S.W.3d 425, 430–31 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)
(concluding use of “shall” indicated mandatory action, citing Code Construction
Act). The plain language of Local Rule 3.11D mandates that if a suit with the
same parties and issues is nonsuited and then re-filed, it must be assigned to the
court in which it was pending at the time of the nonsuit. This much is
straightforward and not disputed by the parties.
The source of the dispute is determining the effect of Local Rule 3.11J.
Rule 3.11J provides that the Local Rules “related to transfer and assignment of any
civil case [are] exercised freely between all courts having concurrent jurisdiction in
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civil matters.” Before the trial court, Adame and Ozuna argued that the district
courts and county courts at law are not courts of concurrent jurisdiction and, for
that reason, Local Rule 3.11J had no applicability to this case. This argument is
without merit.
The Legislature has provided for county courts at law, generally, that:
[A county court at law] has concurrent jurisdiction with the
district court in:
(1) civil cases in which the matter in controversy exceeds $500
but does not exceed $200,000, excluding interest, statutory or punitive
damages and penalties, and attorney’s fees and costs, as alleged on the
face of the petition; and
(2) appeals of final rulings and decisions of the division of
workers’ compensation of the Texas Department of Insurance
regarding workers’ compensation claims, regardless of the amount in
controversy.
TEX. GOV’T CODE ANN. § 25.0003 (West Supp. 2011). The Legislature has also
specifically expanded the jurisdiction of the county courts at law in Galveston
County:
In addition to the jurisdiction provided by Section 25.003 . . ., a
[county court at law] in Galveston County has:
(1) the jurisdiction provided by the constitution and by general law
for district courts . . . .
TEX. GOV’T CODE ANN. § 25.0862(a) (West Supp. 2011); but see id. § 25.0862(b)
(excepting election contests and “felony cases, except as otherwise provided by
law” from county court at law’s jurisdiction). Because the Legislature has
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expressly stated that the district courts and county courts at law in Galveston
County are courts of concurrent jurisdiction, we reject Adame and Ozuna’s
argument to the contrary.
Because the district courts and county courts at law are courts of concurrent
jurisdiction, Adame and Ozuna’s next argument also fails. They contend that
“district courts and county courts at law in Galveston County are completely
separate court systems,” and, therefore, the trial court, a district court, had no
authority to transfer this case to County Court at Law Number 2. As explained
above, the district courts and county courts at law in Galveston County are courts
of concurrent jurisdiction. Rule 3.11J, therefore, expressly refers to both types of
court. The plain language of Rule 3.11J provides authority to transfer cases
between them when otherwise authorized by the Local Rules. To adopt Adame
and Ozuna’s position, that district courts and county courts at law cannot transfer
cases to one another, would render Local Rule 3.11J meaningless. Such an
interpretation clearly contravenes the Legislature’s determination that the district
courts and county courts at law in Galveston County are courts of concurrent
jurisdiction.3
We have concluded that Local Rule 3.11J applies and provides that the rules
3
The Dallas Court of Appeals rejected a similar argument. See In re Siemens
Corp., 153 S.W.3d 694, 697–98 (Tex. App.—Dallas 2005, orig. proceeding)
(holding that no statutory provision prohibited transfer under the Dallas County
local rules from district court to county court at law).
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relating to the transfer of cases permit transfer of cases between the district courts
and county courts at law. We have also concluded that the plain language of Local
Rule 3.11D requires a case with substantial identity of parties and causes of action
that was pending in one court, nonsuited, and then re-filed in another court to be
transferred to the court in which the suit was pending at the time of the nonsuit. It
follows, accordingly, that the Local Rules require that this suit—which has
identical parties and causes of action, and which was pending in County Court at
Law Number 2 when it was nonsuited and then re-filed in the 212th District
Court—be transferred to County Court at Law Number 2. Because Rule 3.11D is
mandatory, we conclude that the trial court abused its discretion when it denied
Hooks’s motion to transfer the case.4 See In re Siemens Corp., 153 S.W.3d 694,
697–98 (Tex. App.—Dallas, 2005, orig. proceeding).
4
In their response, Adame and Ozuna argue that this is essentially a venue case and
that, as plaintiffs, their choice of venue should be respected. Even assuming that
principles relating to venue determinations apply in this case, Adame and Ozuna’s
argument fails. “As long as the forum is a proper one, it is the plaintiff’s privilege
to choose the forum.” In re Henry, 274 S.W.3d 185, 189–90 (Tex. App.—
Houston [1st Dist.] 2008, pet. denied) (quoting Wyatt v. Shaw Plumbing Co., 760
S.W.2d 245, 248 (Tex. 1988)) (emphasis added); KW Constr. v. Stephens & Sons
Concrete Contractors, Inc., 165 S.W.3d 874, 879 (Tex. App.—Texarkana 2005,
pet. denied) (“Plaintiffs are accorded the right to choose venue first as long as suit
is initially filed in a county of proper venue.”) (citing Wilson v. Tex. Parks &
Wildlife Dep’t, 886 S.W.2d 259, 261 (Tex. 1994)). Here, as explained above, the
Local Rules provide that when a case is nonsuited and re-filed, the proper court is
the court in which the suit was previously pending. Adame and Ozuna may not
unilaterally choose their court in contravention of the Local Rules.
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C. Adequate Remedy at Law
Although we have concluded that the trial court abused its discretion in
failing to transfer this case, Hooks is entitled to mandamus relief only if it lacks an
adequate remedy by appeal. In re Prudential, 148 S.W.3d at 135–36. “An
appellate remedy is ‘adequate’ when any benefits to mandamus review are
outweighed by the detriments.” Id. at 136. Determining whether a party has an
adequate remedy by appeal requires a “careful balance of jurisprudential
considerations” that “implicate both public and private interests.” Id. The
Supreme Court has explained that mandamus review of incidental, interlocutory
rulings unduly interferes with trial court proceedings, forces appellate courts to
spend valuable time with issues that are unimportant both to the ultimate
disposition of the case at hand and to the uniform development of the law, and
adds to the expense and delay of the litigation for the parties. Id. But the Supreme
Court also recognized that mandamus review of significant rulings in exceptional
cases may preserve important substantive and procedural rights, allow appellate
courts to give needed and helpful direction to the law that would otherwise prove
elusive in appeals from final judgments, and spare the parties and the public the
time and expense of re-litigating improperly conducted proceedings. Id.
In another case addressing the Galveston County Local Rules, the Supreme
Court recognized a “significant benefit from mandamus review” of cases like this
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one. See In re Union Carbide Corp., 273 S.W.3d 152, 157 (Tex. 2008). Rules
relating to the random assignment of cases are necessary to prevent forum-
shopping, and “[p]ractices that subvert random assignment procedures breed
‘disrespect for and [threaten] the integrity of our judicial system.’” Id. (quoting In
re Bennett, 960 S.W.2d 35, 40 (Tex. 1997)). Here, the Local Rules contain random
assignment provisions. However, to prevent a litigant from forum-shopping, the
Local Rules mandate that a case that had been previously pending, then non-suited
and re-filed, be assigned to the same court in which it was previously pending. As
the Supreme Court noted in In re Union Carbide, it is irrelevant whether Adame
and Ozune were, in fact, forum-shopping; it is enough that the non-suit, followed
by re-filing and assignment to a different court, and that court’s denial of the
motion to transfer, circumvented the random assignment provisions of the Local
Rules. See id. The benefits of mandamus review include “the importance of both
appearance and practice in maintaining integrity of random assignment rules.” See
id. The detriment to Adame and Ozuna is negligible.5 Both voluntarily filed
lawsuits in Galveston County in the County Court at Law Number Two, which has
5
The only detriment identified by Adame and Ozuna is that they are being deprived
of their choice of venue, which generally belongs to a plaintiff. As explained
above, this is only the case when a plaintiff chooses proper venue. Here, Adame
and Ozuna first brought suit in other counties, before settling on Galveston
County. Having chosen to litigate in Galveston County, Adame and Ozuna must
abide by the Local Rules of Galveston County, which require they maintain their
suit in the court to which it was initially assigned.
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jurisdiction over the suit. The parties’ suit will stay in their chosen venue whether
they remain in the district court or return to County Court at Law Number Two.
See Gordon v. Jones, 196 S.W.3d 376, 383 (Tex. App.—Houston [1st Dist.] 2006,
no pet.) (“Venue may and generally does refer to a particular county.”). Thus, the
significant benefits of mandamus review in this case outweigh the detriment. See
In re Union Carbide Corp., 273 S.W.3d at 157. We therefore conclude that Hooks
does not have an adequate remedy on appeal. See id.; see also In re Prudential,
148 S.W.3d at 136.
Conclusion
The plain language of the Local Rules requires transfer of this case to the
County Court at Law Number 2 of Galveston County. The trial court abused its
discretion by refusing the transfer. Additionally, there is no adequate remedy by
appeal. Accordingly, we direct the trial court to vacate its order denying the
transfer and to order the case transferred to county Court at Law Number Two of
Galveston County. Our writ of mandamus will issue only if the trial court does not
comply.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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