CenterPoint Energy Houston Electric v. Wilma Brunkenhoefer ( 2004 )

In The Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-03-492 CV ____________________

CENTERPOINT ENERGY HOUSTON ELECTRIC, L.L.C.; MEMORIAL HERMANN HOSPITAL SYSTEM, INDIVIDUALLY AND D/B/A MEMORIAL HERMANN HOSPITAL; MEMORIAL HERMANN FOUNDATION; JAMES EASTHAM; MARSHALL HEINS; SKIDMORE, OWINGS & MERRILL LLP; TEXAS MEDICAL CENTER AND ANDY ICKEN, Appellants

V.

WILMA BRUNKENHOEFER AND JAMES BRUNKENHOEFER, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF CHARLES BRUNKENHOEFER, DECEASED, Appellees

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On Appeal from the 172nd District Court Jefferson County, Texas Trial Court Cause No. E-169,673

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MEMORANDUM OPINION  

Wilma and James Brunkenhoefer, individually and on behalf of the estate of Charles Brunkenhoefer, sued resident and non-resident defendants ⁽¹⁾ in Jefferson County district court. Plaintiffs say the defendants injured Charles and caused his death. The trial court denied the non-resident defendants' motions to sever and transfer venue to Harris County. The movants filed an interlocutory appeal under section 15.003 ⁽²⁾ of the Civil Practices and Remedies Code. In response, appellees argue this Court has no jurisdiction to hear the appeal, because Tex. Civ. Prac. & Rem. Code Ann. § 15.064(a) (Vernon 2002) prohibits an appeal from a trial court's determination of venue. See American Home Prods. Corp. v. Clark, 38 S.W.3d 92 (Tex. 2000).

Wilma and James claim that injuries in both Jefferson County and Harris County caused Charles Brunkenhoefer's death. Charles underwent surgery in a Jefferson County hospital. Appellees say the surgery was negligently performed. After a second surgery, Charles suffered a heart attack and was transferred to a hospital in Houston. During his stay in the hospital in Harris County, Tropical Storm Allison hit Houston. The hospital lost electrical power and Charles Brunkenhoefer died. Wilma and James allege Charles suffered injuries and died as a result of the loss of power to electrical equipment at the hospital, and also as a result of the injuries he sustained in the hospital in Jefferson County.

Wilma and James say venue is proper in Jefferson County because (1) all or a substantial part of the events or omissions giving rise to the claims occurred in Jefferson County, and (2) at least one of the defendants resided in Jefferson County at the time the cause of action accrued. See Tex. Civ. Prac. & Rem. Code Ann. §§ 15.002(a)(1), (2), 15.005 (Vernon 2002). They assert both a survival action and a wrongful death action. See Tex. Civ. Prac. & Rem. Code Ann. § 71.021 (Vernon 1997); Tex. Civ. Prac. & Rem. Code Ann. §§ 71.001-71.012 (Vernon 1997 & Supp. 2004). The survival statute permits a personal injury cause of action to survive death: "A personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person." Tex. Civ. Prac. & Rem. Code Ann. § 71.021 (Vernon 1997); see Kramer v. Lewisville Mem'l Hosp., 858 S.W.2d 397, 404 (Tex. 1993). The wrongful death statute allows the surviving spouse, parents, and children to sue for damages resulting from a wrongful death. See Tex. Civ. Prac. & Rem. Code Ann. § 71.004 (Vernon 1997 & Supp. 2004); see Diaz v. Westphal, 941 S.W.2d 96, 98 (Tex. 1997).

The plaintiffs begin their pleadings by asserting the lawsuit is brought "individually and on behalf of the estate of Charles Brunkenhoefer." Appellants contend Wilma and James must either independently establish venue or, if they cannot, plaintiffs must establish proper joinder of each claim against each defendant under section 15.003(a). Appellants argue that Wilma and James, as wrongful death plaintiffs, cannot establish venue in Jefferson County independently of Wilma and James as survival plaintiffs, and also cannot "join" the survival lawsuit as "wrongful death plaintiffs" under section 15.003(a). Appellants say the wrongful death claims must be severed from the survival statute claims, and the wrongful death claims should be transferred to Harris County.

The applicable version of section 15.003(a) provides that "[i]n a suit where more than one plaintiff is joined each plaintiff must, independently of any other plaintiff, establish proper venue." If a plaintiff cannot independently establish venue, the plaintiff must establish he has met the section's four joinder requirements. See § 15.003(a); Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 602 (Tex. 1999). Here, the trial court conducted a nonevidentiary hearing and denied the motions for severance and venue transfer without specifying the grounds for the decision.

No one disputes that Wilma and James can sue the resident defendants, Mid Jefferson County Hospital and Dr. Schmidt, in Jefferson County under section 15.002(a). The survival actions and wrongful death claims, however, are not directed solely against the Jefferson County residents; the non-resident defendants are also sued for their alleged negligent acts or omissions causing injury to Charles prior to his death, and causing his death. Appellants say that appellees assert only a wrongful death action against the non-resident defendants and only a survival action against the resident defendants, but the pleadings are broad enough to cover claims under both statutes against all defendants, resident and non-resident; and appellees say that is their intent.  

The appellees suggest venue is proper for the non-resident defendants pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 15.005. That section provides as follows:

In a suit in which the plaintiff has established proper venue against a defendant, the court also has venue of all the defendants in all claims or actions arising out of the same transaction, occurrence, or series of transactions or occurrences.

The "series of transactions or occurrences" began in Jefferson County, encompassed a transfer to a Houston hospital, and later ended with Charles Brunkenhoefer's death in Harris County. Appellees pleaded each defendant's negligent actions, taken singularly or in combination, caused Charles Brunkenhoefer's injuries, damages, and untimely death. See Tex. Civ. Prac. & Rem. Code Ann. 71.002(a),(b) (Vernon 1997).

Our decision is governed by American Home Products Corp. v. Clark, 38 S.W.3d 92 (Tex. 2000). There, the Supreme Court explained an interlocutory appeal is authorized by the applicable version of section 15.003(a) only when the trial court's order necessarily determines the joinder or intervention issue under the statute:

When the trial court's order necessarily determines an intervention or joinder issue under section 15.003(a), section 15.003 (c) plainly allows for either party to contest that decision by taking an interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 15.003(c); Surgitek v. Abel, 997 S.W.2d 598, 601 (Tex. 1999). Conversely, if the trial court determines that venue is proper under section 15.002, the inquiry is over. This is because section 15.003(a) takes as its starting point a "person who is unable to establish proper venue." Surgitek v. Abel, 997 S.W.2d at 602. Thus, if the trial court, even erroneously, decides that venue is proper under section 15.002, an interlocutory appeal under section 15.003(c) is unavailable. See Tex. Civ. Prac. & Rem. Code § 15.064(a); [Surgitek, Inc. v.] Adams, 955 S.W.2d [884, 887 (Tex. App.--Corpus Christi 1997, pet. dism'd by agr.)].

American Home Prods. Corp. v. Clark, 38 S.W.3d at 96. In American Home Products v. Clark, the Supreme Court explained that section 15.003 is a joinder statute, and the statute as written did not authorize an interlocutory appeal of a venue determination. Id. The Court held that the court of appeals correctly dismissed a non-resident defendant's interlocutory appeal for want of jurisdiction because the trial court's decision there was a venue determination. Id.

Appellants' complaint is that they have been sued in Jefferson County for injuries and death occurring in Harris County. The trial court here made no findings concerning joinder under section 15.003(a). Rather, the trial court implicitly adopted appellees' position that venue is proper in Jefferson County for both the survival actions and wrongful death claims. The legal capacities in which each plaintiff sues and the nature of the claims each asserts are distinguishable, but the individuals pursuing the claims are the same. The survival claims and the wrongful death claims against both resident and non-resident defendants are alleged to involve the same series of events. We see appellants' complaint as fundamentally a venue one, not a multiple or intervening plaintiff joinder issue under section 15.003(a). Given the circumstances, we conclude the trial court's order determined a venue issue under section 15.005 and did not determine a plaintiff joinder issue under section 15.003(a). No interlocutory appeal of a venue determination is authorized by the statute in effect when this suit was filed. See American Home Prods. Corp. v. Clark, 38 S.W.3d at 96.

This Court has no jurisdiction over an interlocutory appeal from the trial court's determination of a venue question. Id. We do not decide whether the trial court's venue decision is correct. See Tex. Civ. Prac. & Rem. Code Ann. § 15.064 (Vernon 2002). The interlocutory appeal is dismissed for want of appellate jurisdiction.

APPEAL DISMISSED.

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DAVID B. GAULTNEY

Justice

Submitted on February 12, 2004

Opinion Delivered February 12, 2004

Before McKeithen, C.J., Burgess and Gaultney, JJ.

1.

The Jefferson County resident defendants are Mid Jefferson County Hospital and a related entity, and Dr. John Allen Schmidt. The non-resident defendants are Texas Medical Center, Centerpoint Energy Houston Electric, L.L.C., Memorial Hermann Foundation, Memorial Hermann Hospital System, Andy Icken, Marshall Heins, James Eastham, and Skidmore, Owings and Merrill LLP.

2.

The applicable version of section 15.003 is found in Acts of May 8, 1995, 74^th Leg., R.S., ch. 138, § 1, sec. 15.003, 1995 Tex. Gen. Laws 978, 979. Section 15.003 was amended in 2003, but the amendment does not apply to the actions filed before September 1, 2003.