in Re Berry GP, Inc. D/B/A Bay, LTD., a Berry Company
530 S.W.3d 201
| Tex. App. | 2016Background
- In 2014 Douglas Gray was injured at an Alon facility in Howard County; he and his wife sued multiple Alon- and Berry-related entities in Jefferson County.
- Plaintiffs’ live petition alleged the Alon–Gulfspan contract was negotiated/executed in Jefferson County and generically alleged that some transactions or occurrences arose in Jefferson County, but it did not plead specific venue facts tying any defendant’s acts in Jefferson County to the injury.
- Berry GP filed a timely motion to transfer, expressly denying the plaintiffs’ venue allegations and asserting the accident (and thus proper venue) was in Howard County.
- The Grays opposed the motion with argument but offered no affidavits or prima facie proof to substantiate Jefferson County as a county of permissive venue.
- The trial court denied the motion; the court of appeals held that Berry’s denials complied with Tex. R. Civ. P. 87, the Grays did not meet their prima facie burden, and the trial court abused its discretion by not transferring the case to Howard County.
- The court of appeals conditionally granted mandamus, concluding appellate review would be inadequate given the trial court’s procedural errors and the exceptional circumstances (multiple parties, witnesses far from accident site, potential for venue abuse).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Berry’s motion specifically deny venue facts so as to shift burden to plaintiffs? | Grays contended Berry’s motion did not specifically deny venue facts. | Berry argued its motion complied with Rule 87(2)(b) and specifically denied venue allegations. | Court: Berry’s denials were specific and shifted burden to plaintiffs. |
| Did the Grays plead and prove prima facie venue facts for Jefferson County? | Grays relied on allegation the Alon–Gulfspan contract was negotiated/executed in Jefferson County to support venue. | Berry argued contract formation in Jefferson County, without more, does not show wrongful acts there causing the injury. | Court: Grays failed to plead or produce prima facie evidence linking any defendant’s acts in Jefferson County to the injury. |
| Did the trial court abuse its discretion by denying the transfer motion? | Grays argued venue was permissive in Jefferson County based on contract-related allegations. | Berry argued the only proper venue was Howard County where the accident occurred and plaintiffs didn’t meet their burden. | Court: Yes—trial court abused discretion by not transferring the case to Howard County. |
| Is mandamus relief appropriate (is appeal inadequate / are circumstances exceptional)? | Grays suggested mandamus inappropriate because venue statute is permissive and appeal could remedy error. | Berry argued trial court applied blatantly improper venue procedure, making appeal inadequate; multiple parties and witness inconvenience create exceptional circumstances. | Court: Mandamus conditionally granted—appellate remedy inadequate and exceptional circumstances exist. |
Key Cases Cited
- In re Masonite Corp., 997 S.W.2d 194 (Tex. 1999) (when defendant specifically denies venue allegations, plaintiff must make prima facie showing venue is proper).
- In re Missouri Pacific R. Co., 998 S.W.2d 212 (Tex. 1999) (plaintiff’s failure to plead/prove venue shifts choice of venue to defendant).
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (standards for mandamus—review adequacy).
- In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (mandamus may be warranted to preserve procedural/substantive rights where venue rulings are improper).
- In re Shell Oil Co., 128 S.W.3d 694 (Tex. App.—Beaumont 2004) (appeal inadequate where trial court uses blatantly improper venue procedures).