William Cullen Champion v. Marilyn Estlow

ACCEPTED
03-14-00016-CV
3583373
THIRD COURT OF APPEALS
1 CHJSHOLM TRAIL, SUJH 150 AUSTIN, TEXAS
ROlJN D ROCK. TEXAS 78681
12/23/2014 3:20:56 PM
BouR.LA. TEL 51.2.477.0100 JEFFREY D. KYLE
FAX 512.477.0154
WWW.BOURLANDLAW.COM
CLERK
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
December 23, 2014 12/30/2014 3:30:56 PM
JEFFREY D. KYLE
Clerk
VIAE-FILE
Justice David Puryear
Justice Bob Pemberton
Justice Scott Field
RE: Champion v. Est/ow, 03-14-00016-CV, in the Third Court of Appeals
Dear Justice Puryear, Justice Pemberton and Justice Field:
Please allow this letter to serve as Appellant William Champion's supplemental
letter brief and response to a question raised by Justice Pemberton during oral
argument in the above-referenced case on December 17, 2014.
In response to Justice Pemberton's question regarding waiver of venue through a
no-answer default, Appellant asserts that to hold that a party's failure to appear
constitutes waiver of venue (whether express or implied) contradicts the plain language
of § 15.002 of the Civil Practice and Remedies Code. Section 15.002 requires the
plaintiff to file suit in the proper venue ("all lawsuits shall be brought. .. "), and is not
conditioned upon any action by the defendant.
Additionally, we have reviewed the case law (both subsequent and prior to the
1995 statutory changes) for any authority that a no-answer defau It constitutes a waiver
of venue. We did not find any cases for that proposition. We did find cases, such as
Long v. Gonzales, 650 S.W.2d 173 (Tex.App.-San Antonio 1983, no writ), and Alamo
Express, Inc. v. Stansell, 445 S.W.2d 222 (Tex.Civ.App.-San Antonio 1969, no writ), in
which venue was not waived by a no-answer default. While the issue in both Long and
Alamo Express was whether or not the defendant had waived venue by challenging the
default judgment before challenging venue, the fact that the court, in both instances,
held that venue had not been waived demonstrates that a no-answer default does not
act as a waiver of venue objections. Similar holdings may be found in Pardue v.
Confederate Air Force, 615 S.W.2d 233 (Tex.Civ.App.-Dallas 1980, writ dism'd), Yell
v. Prock, 238 S.W.2d 238 (Tex.Civ.App.-Fort Worth 1951, writ dism'd), and Wolf v.
Sahm, 120 S.W. 1114 (Tex.Civ.App. 1909, writ ref'd). This is consistent with the
language of§ 15.002 and with the relief requested by Appellant in this case.
Importantly, the court in Alamo Express defined waiver of venue rights as the
result of an action by a party:
Letter to Third Court of Appeals
December 23, 2014
Page 2 of2
Venue rights may be expressly or impliedly waived by either party. An
express waiver is shown by clear, overt acts evidencing an intent to
waiver [sic]. An implied waiver occurs when a party, often inadvertently,
takes some action inconsistent with his position upon the venue issue and
therefore is held to have waived his rights thereon.
Alamo Express, 445 S.W.2d at 223 (emphasis added). The court in Alamo Express
went on to hold that the appellant had not, by failing to appear, waived its objection to
venue. /d. The same is true in this case. Mr. Champion did not answer the underlying
lawsuit, and Appellee obtained a default judgment. Mr. Champion's failure to answer
did not excuse Appellee from complying with § 15.002 in selecting a proper venue, nor
did Mr. Champion's inaction waive objection that venue is not proper under§ 15.002.
For these reasons, as well as those detailed in Appellant's Brief and discussed in oral
argument, Mr. Champion respectfully requests that the default judgment in this case be
reversed and remanded.
We appreciate the opportunity to provide this supplement. Please do not
hesitate to contact us if additional briefing or other information is necessary.
Respectfully,
£Anna Eby
cc: Jessica Lobes (via electronic mail)