Richard Dale Livingston and B&W Chipping, LLC v. Linda Gregurek and Jennifer Gray, Individually, as Surviving Spouse, on Behalf of the Estate of Robert Harold Gray, and as Next Friend and Parental Guardian to the Minors, H.G. and R.G. ( 2022 )

Affirmed and Majority Opinion filed March 8, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00693-CV
RICHARD DALE LIVINGSTON AND B&W CHIPPING, LLC, Appellants
V.
LINDA GREGUREK AND JENNIFER GRAY, INDIVIDUALLY, AS
SURVIVING SPOUSE, ON BEHALF OF THE ESTATE OF ROBERT
HAROLD GRAY, AND AS NEXT FRIEND AND PARENTAL GUARDIAN
TO THE MINORS, H.G. AND R.G., Appellees
On Appeal from the 125th District Court
Harris County, Texas
Trial Court Cause No. 2021-27790
MAJORITY OPINION
In this interlocutory appeal, appellants Richard Dale Livingston and B & W
Chipping, LLC complain of the trial court’s denial of their motion to transfer
venue from Harris County to Shelby County. We affirm.
BACKGROUND
Robert Harold Gray was driving an automobile westbound on US Highway
287 in Tyler County on April 7, 2021. That same day Livingston was driving a
lumber truck for his employer, B & W Chipping, southbound on Farm Market
Road 256. Appellees, Linda Gregurek and Jennifer Gray, individually, as
surviving spouse, on behalf of the estate of Robert Harold Gray, and as next friend
and parental guardian to the minors, H.G. and R.G., allege that Livingston
disregarded the stop sign where FM 256 intersected Highway 287 and struck
Robert’s automobile, causing it to flip over several times before it came to rest in
the ditch.
Robert was seriously injured by the collision and he was initially taken to
Woodville Hospital. Appellees allege that Robert was subsequently life-flighted to
Memorial Herman Hospital in the Texas Medical Center in Harris County due to
the severity of his injuries. Robert died in Harris County on April 15, 2021 as a
result of the injuries he received in the collision.
Robert’s wife, appellee Jennifer Gray, filed suit in Harris County against
appellants alleging negligence and gross negligence causes of action under the
Texas Wrongful Death and Survival Statutes. See Tex. Civ. Prac. & Rem. Code
Ann. §§ 71.002 et seq; 71.021. Gray filed suit in her individual capacity, as
Robert’s surviving spouse, on behalf of Robert’s estate, and finally as next friend
and parental guardian of the couple’s minor children. Appellee Gregurek was
added as a plaintiff in an amended petition. Gregurek alleged that she was
Robert’s surviving mother. Appellees alleged that venue was proper in Harris
County under section 15.002(a)(1) of the Texas Civil Practice and Remedies Code
because all or a substantial part of the events or omissions giving rise to the lawsuit
occurred there. According to appellees, Harris County was the location where
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Robert “suffered for nine days in the Memorial Hermann-TMC Shock Trauma
Unit”, where he died, and where his funeral service was held.
Appellants filed a motion to transfer venue because, in their view, Harris
County was not a proper venue because a substantial part of the events or
omissions underlying the lawsuit did not occur there, but instead occurred in Tyler
County, the location of the actual collision. Appellants asked the trial court to
transfer the case to Shelby County, the county where Livingston resided and the
location of B & W Chipping’s principal office. See Tex. Civ. Prac. & Rem. Code
Ann. § 15.002(a)(3) & (4) (providing that the county of a defendant’s residence, or
principal office, is a county of proper venue). Appellees filed a response in which
they initially objected that appellants had presented nothing for the trial court to
review because appellants did not “specifically deny any of the venue facts
underlying” their lawsuit. See Tex. R. Civ. P. 87(3)(a) (“All venue facts, when
properly pleaded, shall be taken as true unless specifically denied by the adverse
party.”). Appellees then argued that Harris County was a proper venue under
Section 15.002(a)(1) because it was the county where Robert lingered for days and
eventually died as a result of the collision in Tyler County. Appellees attached
affidavits from both Gray and Gregurek to their response.
After a non-evidentiary hearing, the trial court denied appellants’ motion.
This accelerated appeal followed.1
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We have jurisdiction over this accelerated interlocutory appeal despite Rule 87(6) of the
Rules of Civil Procedure stating that “there shall be no interlocutory appeals from” a trial court’s
venue ruling because Section 15.003(b) of the Civil Practice and Remedies Code provides for an
interlocutory appeal of venue rulings in cases, such as this one, involving multiple plaintiffs. See
UPS Ground Freight, Inc. v. Trotter, 606 S.W.3d 781, 786 (Tex. App.—Tyler 2020, pet. denied)
(“As to the availability of an interlocutory appeal in this case, because there are multiple
plaintiffs, Section 15.003(b) controls, not Rule 87(6).”).
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ANALYSIS
Appellants raise a single issue on appeal challenging the trial court’s denial
of their motion to transfer venue. Within that single issue, appellants make
multiple arguments. We address appellants’ arguments together.
I. Standard of review and applicable law
In Texas, the plaintiff has the right to choose venue in the first instance.
Perryman v. Spartan Tex. Six Capital Partners, Ltd., 546 S.W.3d 110, 130 (Tex.
2018); Moveforfree.com, Inc. v. David Hetrick, Inc., 288 S.W.3d 539, 541 (Tex.
App.—Houston [14th Dist.] 2009, no pet.). If the defendant challenges the
plaintiff’s venue choice by specifically denying the plaintiff’s venue allegations,
the plaintiff must then present prima facie proof that venue is proper in the chosen
county. See Tex. R. Civ. P. 87(2)(b), (3); Moveforfree.com, Inc., 288 S.W.3d at
541. The trial court is to evaluate venue based on the pleadings and affidavits.
Moveforfree.com, Inc., 288 S.W.3d at 541. If, based on this information, the
plaintiff has chosen a proper venue, the trial court must maintain venue in the
plaintiff’s chosen county unless a mandatory venue provision applies, or the
defendant brings forth conclusive evidence that destroys the plaintiff’s prima facie
proof. Id. If the plaintiff fails to establish proper venue and the defendants
proffered prima facie proof that their specified county is one of proper venue, then
the trial court must transfer venue to the defendants’ selected venue. Honeywell
Int’l, Inc. v. Davis, No. 01-19-00013-CV, 2020 WL 4873562, at *5 (Tex. App.—
Houston [1st Dist.] Aug. 20, 2020, no pet.) (mem. op.). Absent such
circumstances, venue in any county other than the plaintiff’s choice is improper as
a matter of law. Id.When reviewing venue, an appellate court conducts an independent review
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of the entire record to determine whether any probative evidence supports the trial
court’s venue decision. United Parcel Serv., Inc. v. Norris, 635 S.W.3d 242, 245
(Tex. App.—Beaumont 2021, no pet.). We review the record in the light most
favorable to the trial court’s venue ruling, but we do not give deference to the trial
court’s application of the law. Id. Therefore, in any venue transfer analysis a
reviewing court must first determine whether the plaintiff’s venue choice was
appropriate. Moveforfree.com, Inc., 288 S.W.3d at 541. If so, the plaintiff’s
choice must be upheld on appeal, even if the venue suggested by the defendants
would also have been appropriate if chosen by the plaintiff. Id. To make that
determination, we must examine the plaintiff’s claims. Honeywell Int’l, Inc, 2020
WL 4873562, at *6. A trial court’s erroneous denial of a motion to transfer venue
requires reversal without a harm analysis. See Tex. Civ. Prac. & Rem. Code Ann.
§ 15.064(b); Perryman, 546 S.W.3d at 130.
Venue may be proper under general, mandatory, or permissive venue rules.
Perryman, 546 S.W.3d at 130. The parties agree that there is no mandatory venue
provision relevant to this appeal. Venue rules may designate multiple counties as
proper. Id. Venue in wrongful death and survival actions is governed by the
general venue rule found in section 15.002 of the Civil Practice and Remedies
Code. Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 620 (Tex. 2005). This
section provides:
Venue: General Rule
(a) Except as otherwise provided by this subchapter or Subchapter
B or C, all lawsuits shall be brought:
(1) in the county in which all or a substantial part of the events or
omissions giving rise to the claim occurred;
(2) in the county of defendant’s residence at the time the cause of
action accrued if defendant is a natural person;
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(3) in the county of the defendant’s principal office in this state, if
the defendant is not a natural person; or
(4) if Subdivisions (1), (2), and (3) do not apply, in the county in
which the plaintiff resided at the time of the accrual of the cause
of action.
Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a). When, like here, there are
multiple plaintiffs, each plaintiff must independently establish proper venue. See
Tex. Civ. Prac. & Rem. Code Ann. § 15.003(a). As mentioned above, appellees
alleged that venue was proper in Harris County under Section 15.002(a)(1) because
a substantial part of the events underlying their claims occurred there.
II. Appellees independently established by prima facie proof that Harris
County is a proper venue for their wrongful death and survival actions.
In the trial court, appellees argued that appellants essentially waived their
motion to transfer because they did not specifically deny appellees’ venue
allegations as required by Rule 87 of the Texas Rules of Civil Procedure. See Tex.
R. Civ. P. 87(3) (“All venue facts, when properly pleaded, shall be taken as true
unless specifically denied by the adverse party.”). Anticipating that same
argument on appeal, appellants assert that they specifically denied appellees’ venue
allegations and thereby transferred the burden to appellees to come forward with
prima facie proof to support their venue allegations. Appellants additionally argue
that certain parts of the affidavits submitted by Gray and Gregurek in response to
appellants’ motion to transfer venue cannot be considered because they are
conclusory. Finally, appellants make a legal argument that Harris County is not a
proper venue because of the derivative nature of appellees’ wrongful death and
survival claims. In appellants’ view, we should only consider where the alleged
negligent acts or omissions resulting in the actual collision occurred, not where the
decedent subsequently died as a result of the injuries he sustained in the collision.
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If we accept this argument, then Harris County could not be a proper venue and the
Harris County trial court would have reversibly erred by denying appellants’
motion to transfer venue. Assuming without deciding that appellants adequately
denied appellees’ venue allegations, we conclude we need not reach appellants’
conclusory objection argument because the undisputed facts in the record establish
that Harris County was a proper venue for appellees’ wrongful death and survival
claims.
It is undisputed that Robert was seriously injured in the collision in Tyler
County and that he was transported to a hospital in Harris County because of his
injuries. It is also undisputed that Robert died from his injuries approximately
eight days after the collision while still in the Harris County hospital. Based on
this undisputed evidence, appellees assert Harris County was a proper venue for
their claims because Robert’s death and the pain and suffering he experienced in
the Harris County hospital prior to his death constitute a substantial part of the
events giving rise to their claims. See Critical Path Resources, Inc. v. Cuevas, 561
S.W.3d 523, 574 (Tex. App.—Houston [14th Dist.] 2018), supplemented by No.
14-16-00036-CV, 2018 WL 2106599 (Tex. App.—Houston [14th Dist.] 2018, pet.
granted, judgment set aside, and remanded by agreement) (“Pain and suffering may
be inferred or presumed as a consequence of severe injuries.”). Appellants respond
that these events are insufficient as a matter of law to qualify as a substantial part
of the events giving rise to the appellees’ claims. Appellants then insist that only
Tyler County, the location of the collision, would qualify as a proper venue under
Section 15.002(a)(1).
Wrongful death and survival claims are legally distinct causes of action.
Haver v. Coats, 607 S.W.3d 359, 392 (Tex. App.—Houston [14th Dist.] 2020, no
pet.). Wrongful death claimants sue to recover their own damages resulting from
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the decedent’s wrongful death. Mayer v. Willowbrook Plaza, Ltd., 278 S.W.3d
901, 909 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Survival action
claimants on the other hand, seek recovery for the personal injuries, pain and
suffering, mental anguish, and other damages the decedent sustained before his
death. Id.; Cortez v. HCCI-San Antonio, Inc., 131 S.W.3d 113, 119 (Tex. App.—
San Antonio 2004), aff’d, 159 S.W.3d 87 (Tex. 2005).
Despite that legally distinct identity, one thing must occur before either a
wrongful death or survival action plaintiff may file suit, a person must die. See
Kramer v. Lewisville Mem. Hosp., 858 S.W.2d 397, 403 n.5 (Tex. 1993) (“In short,
the true harm to Ms. Kramer remains her death. Accordingly, her statutory
beneficiaries are relegated to seeking recovery under the Wrongful Death Act and
Survivorship Statute.”). Wrongful death causes of action do not accrue until the
injured person dies. See Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 348 (Tex.
1992) (“If a wrongful death action exists, it accrues not when the decedent was
injured, but at his death . . . .); Velasco v. Texas Kenworth Co., 144 S.W.3d 632,
634 (Tex. App.—Dallas 2004, pet. denied) (“Appellant’s wrongful death claim
arose when his wife died in the accident in Johnson County.”); Ray v. Farris, 887
S.W.2d 164, 166 (Tex. App.—Texarkana 1994) (“Until an injured person dies, all
of the cause of action for wrongful death has not accrued. Thus, a part of the cause
of action accrues at the time of death.”), rev’d on other grounds, 895 S.W.2d 351(Tex. 1995). A survival action does not create a new cause of action; it instead
permits the decedent’s cause of action to survive death. Kramer, 858 S.W.2d at
404. “The actionable wrong [in a survival action] is that which the decedent
suffered before his death.” Russell, 841 S.W.2d at 345. We conclude that Harris
County, the county where Robert lingered for days after the Tyler County
collision, the location where he allegedly sustained pain and suffering and mental
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anguish damages, and the place where he ultimately died, is a county where a
substantial part of the events or omissions giving rise to the claims occurred and is
therefore a proper venue for appellees’ claims. We overrule appellants’ issue on
appeal.
CONCLUSION
Having addressed and overruled all arguments appellants raised in this
interlocutory appeal, we affirm the trial court’s order denying appellants’ motion to
transfer venue.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Jewell, Zimmerer, and Hassan (Hassan, J., concurring
without opinion).
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