William Cullen Champion v. Marilyn Estlow
2015 Tex. App. LEXIS 1004
| Tex. App. | 2015Background
- Plaintiff Marilyn Estlow sued defendant William Cullen Champion in Travis County after Champion’s vehicle allegedly crashed into her home on April 16, 2012.
- Estlow’s live petition alleged the collision occurred on Sorrel Ct. in Leander and listed both addresses (her home and Champion’s residence) in Leander with Travis County identified in the petition.
- Champion did not answer; a no-answer default judgment for damages was entered against him. He later filed a restricted appeal within six months.
- Champion argued on appeal that the petition and return of service showed the events and addresses were in Leander (which is in Williamson County), so venue in Travis County was improper.
- The appellate court framed the dispute as whether venue error was "apparent on the face of the record," a required showing for relief on a restricted appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether venue was proper in Travis County | Estlow pleaded venue in Travis County by alleging her home was in Travis County and the suit was filed there | Champion pointed to petition and return of service showing locations in Leander (arguing those are in Williamson County), claiming Travis venue impossible | Even if petition on its face showed venue in Williamson County, that alone does not show reversible error on restricted appeal |
| Whether defendant waived venue objection | Estlow implicitly relies on Champion’s failure to object before judgment | Champion contended he did not answer and therefore could not have waived venue by pleading | Court held venue objections can be waived if not timely asserted; record contains no affirmative indication Champion preserved a venue objection |
| Standard for restricted appeal review | N/A | Champion argued the face of the record shows venue error so restricted appeal should succeed | Court reiterated restricted-appeal standard: error must be apparent on the face of the record; courts draw no inferences and an absence of proof of error is not proof of error — Champion failed to meet this standard |
Key Cases Cited
- Alexander v. Lynda’s Boutique, 134 S.W.3d 845 (Tex. 2004) (defines restricted-appeal standard and requires error apparent on the face of the record)
- General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942 (Tex. 1991) (discusses restricted-appeal principles and limits on inference-drawing)
- Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554 (Tex. App.—Austin 2004) (applies scope and standard of review for restricted appeals)
- Norman Commc’ns v. Texas Eastman Co., 955 S.W.2d 269 (Tex. 1997) (procedural discussion cited regarding appellate standards)
- Gold v. Gold, 145 S.W.3d 212 (Tex. 2004) (per curiam) (absence of affirmative proof on the face of the record is insufficient for reversal in a restricted appeal)
- Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226 (Tex. 1999) (per curiam) (cited regarding restricted appeal prerequisites)