*3 оbject- never claim Bleeker. Bleeker YÁÑEZ, and Before CHAVEZ joinder ed to of State Farm Fire and RODRIGUEZ, JJ. plain- never to sever the moved their tiffs’ claims him from claims OPINON Fire YÁÑEZ, Justice. venue to Bleeker moved transfer Wil- injury, personal wrong- This case involves County, liamson where he resided where death, gross rising negligence ful occurred, the accident had but the Individually crash. from a car and for her this motion. The lawsuit was tried denied estate, husband’s Idalia Villarreal and jury, Hidalgo which an- before minors, including six plaintiffs, other sued *4 Bleeker’s lia- questions regarding swered all Bleeker, County Ronnie State Farm Mutual bility plaintiffs. jury of the The in favor Co., and Farm Fire and Ca- Insurance State $100,000 plaintiffs each in awarded the 13 sualty The Co. found Bleeker’s punitive damages varying and amounts for negligence gross proximately caused the damages. against actual Claims State Farm the challenges crash. Bleeker denial of his venue, County and Farm Fire and appointment Mutual State motion to transfer the litem, guardians of ad payment Casualty and the the never were submitted negligence, charge’s gross instruction and on take-nothing the court directed a because evidentiary part, affirm ruling. an in close of verdict on these claims at the the part, in remand. reverse and plaintiffs’ case. plaintiffs the 13 Filiberto Villarreal and jury’s verdict, the trial Based on the court riding they in pickup a truck when were judgment awarding following the rendered a pulled change the After off road to drivers. damages, punitive damages, sums as actual complete stop, to a the Villarreal truck came prejudgment and interest: Bleeker, intoxicated, driving who while in $1,363,697.10 Idalia her individual Villarreal, from his collided veered lane and with capacity of $721,235.43 Idalia as next friend Villarreal, truck. killed pickup Filiberto Villarreal was Jahaziel Villarreal injured. passengers the other were and as of $753,264.03 Idalia next friend Villarreal, F. Heriberto Villarreal plaintiffs’ original petition included The Edgar $766,769.48 as next friend of Villarreal, Idalia negligence wrongful against and death claims F. Villarreal and an action Bleeker enforcement $850,660.28 as next of Daniel Villarreal, Idalia friend F. Villarreal County involving Farm Mutual under- State as of $8,428.63 Idalia Villarreal, representative coverage. motorists Farm insured State Filiberto Villarreal’s estate $198,745.10 Rosa in her individual Ochoa, capacity in County petition interpleader Mutual a filed $106,483.56 Rosa as next of Abilene Ochoa, friend discharged liability in praying to be Ochoa exchange payment proceeds of under due $106,483.56 Rosa as next friend of Amalia Ochoa, Misia Ochoa disputed policy, plaintiffs but the State $5,935,205.50 Joel Ochoa prоceeds. Farm’s calculation of the After $211,478.36 Elizabeth Ochoa $138,570.71 David Ochoa plaintiffs’ suit was consolidated with $146,506.59 Victor Villarreal interpleader ac- County Farm Mutual’s $248,473,56 Amalia Villarreal tion, sever the causes Bleeker moved to two proceeding on a separate order based hearing ruling on his but never obtained a fees for the before the bench determine motion. litem, guardians trial court awarded ad discovery appar- progressed, became As following amounts: underinsured motor- ent Edgar, $250,000 Richard who Smith, represented Farm policy had been issued ists Heriberto Villarreal Jahaziel, Daniel Garcia, $85,000 Joe who represented than Fire and rather Villarreal Consequently, Mutual. State Farm Rodriguez, who $30,000 Frank represented petition Fire and filed amended Abilene, Elizabeth Misia, Joel, Amalia Ochoa interpleader seeking pay poliсy order, By assessed 95% that same the court proceeds registry into the court and 5% the of the costs Bleeker exchange discharge liability. for a of all defendants. petition join costs the State Farm plaintiffs then their amended merits”) perfected appeal requested Bleeker with Tex.R.Civ.P. 87 trial on the (trial remand so that court could file court’s “determination must be made findings fact and conclusions of law in prior time reasonable to commencement guardian relation to the issue of ad litem the trial” allegations pleadings based appeal granted fees. We abated the “prima proof’ presented facie at venue Bleeker’s motion for remand. Now hearing). Accordingly, this unusual standard supplemented record has been to include the appellate can result in an review conclusions, findings trial court’s we will reversing judgment a trial court’s based on a appeal. address the merits of Bleeker’s ruling correctly at venue that was decided Ruiz, hearing.
the venue at 757. VENUE complains that the trial court granted should have his motion to transfer points Under his first and second prima because the failed to offer error, complains that the trial court proof hearing. facie at the venue by denying erred his motion to transfer ven review, recites the correct standard of but he County. ue to Williamson Because venue is ruling attacks the trial court’s venue as if it legislative grace, authority a creature of light were an abuse of discretion in to transfer venue from one court to another prima absence of from the venue entirely statutory. Manage Polaris Inv. hearing. Abascal, Corp. ment *5 (Tex.1995). Accordingly, appellate review of discussed, As we have the record as it rulings the trial requires court’s venue a hearing stood on the date of the venue does limited determination of whether the trial not frame our review of the trial court’s ruling by court abides the relevant venue Instead, venue decision. we examine the scope appellate statutes. Id. Even the any support entire record for evidence the specified by is review statute: “In determin ruling. trial court’s venue Id. at 758. We ing proper, whether venue was or was not affirm judgment the reverse based appellate court shall consider the entire regardless standard trial whether record, including the trial on the merits.” ruling was correct as from viewed 15.064(b) § Tex.Civ.Prac. & Rem.Code Ann. perspective hearing. at venue Id. (Vernon 1986). any If the record contains possibility To limit the that venue will be probative proper, evidence that venue was improperly through pretrial established preponderance even if the of the evidence is gamesmanship, only our review considers contrary, uphold we must the trial ruling ultimately whether the venue vin court’s venue determination. Bonham State by fully developed dicated record. See Beadle, (Tex. 465, Bank v. 907 471 S.W.2d Dept., Wilson v. Texas Parks & 886 Wildlife 1995); Conoco, Inc., 752, Ruiz v. 259, (Tex.1994). n. S.W.2d 261-62 3 de (Tex.1994). If there is evidence that fense of this often-criticized standard of re however, proper, venue was then the trial view, Supreme the Texas Court has noted ruling requires court’s erroneous venue auto prospect of an automatic reversal is matic reversal and remand for a new gamesman sufficient deterrent such analysis.
without the usual harm Tex.Civ. ship. (citing Temple, Id. Maranatha v. Inc. 15.064(b); § Wichita Prac. & Rem.Code Ann. Co., 736, Enterprise Prod. S.W.2d Hart, (Tex. County 779, (Tex.App.—Houston [1st writ de Dist.] 1996). nied)). unique standard of review is be If Bleeker had not denied the venuе
This cause we evaluate the venue in in plaintiffs’ petition, determination facts then the trial light of evidence that was not before the trial court would have taken those facts as true Ruiz, ruling. court it Hidalgo when made the venue in sufficient to establish venue 757; 3(a). case, compare County. at S.W.2d In this Tex.R.Civ.P. 87 Tex.Civ.Prac. & 15.064(b) however, § (appellate specifically court denied that the Rem.Code Ann. record, including any Hidalgo considers “the entire the State Farm defendants had foreign handling plaintiffs’ corporation. plaintiffs’ The agents under- rising insured motorist claim from the crash.1 pleadings, combined with admissions Bleeker also denied that the had a foreign Farm Fire cause of Farm. Al action corporation agents with and a office though the existence of a cause action is County, ruling. Hidalgo support in the venue challenge hearing, immune from at a venue 3, 1987, 1987 See Act of June Tex.Gen.Laws Id., any that the State Farm determination 1995) (foreign (repealed corporation in agency did not have an Hidal defendants may county has an sued where it disrupt go County would venue that coun Ruiz, 759; agency); at Reliance S.W.2d 3, 1987, ty. Leg., See Act of June 70th 1st Falknor, Ins. 722-23 Co. C.S., 52, 53, § ch. 1987 Tex.Gen.Laws (Tex.Civ.App. [1st Dist.] — Houston 8, 1995, repealed May Leg., by Act of 74th n.r.e.) (local recording agent writ ref'd cre R.S., 138, § ch. 1995 Tex.Gen.Laws purposes); agency ates venue see also (under law, corporation foreign former (Ver 2(a)(1) § 21.14 art. any county Ann. could be in which it had Tex.Ins.Code sued (local recording agency); Supp.1996) agent non has an see also Tex.Civ.Prac. Rem. & (Vernon § 15.001 note historical authority company). to bind insurance Code ANN. (Act May 8, Supp.1996) Leg., 74th Our review need not resolve whether the R.S., ch. 1995 Tex.Gen.Laws correctly motion transfer denied the provides that suits commenced before light plaintiffs’ response venue 1, 1995, September governed former prima the motion and the offered law). hearing. at the need determine plaintiffs’ response to the motion to ruling is supported whether the venue not comply transfer venue did with Rule 87: evidence, even if that evidence was not some setting neither affidavit forth venue facts part of the until after the venue made record any duly proved accompa nor attachments necessary hearing. In this 3(a). response. nied Tex.R.Civ.P. 87 sustain venue was omitted Conversely, Bleeker’s motion to transfer ven *6 necessary properly ue forth all the facts response set to ven- to Bleeker’s motion transfer per was to show that Williamson Nevertheless, supporting ue. the essential 2(a), litigation. missible venue for the See id. filed the trial court ruled evidence was before 3(a). Odessa, City 893 But see Watson 3(d) on the venue issue. Tex.R.Civ.P. Cf. 1995, 197, (Tex.App. Paso — El (trial may fur- parties court to make direct denied) (holding to writ that motion transfer judge proof). ther we the venue Because county also either that “must show” where record, light of ruling in the entire deficien- pending improper action is is or that venue is plaintiffs’ prima proof cies in facie at the county). mandatory in another present hearing grounds do not automatic for hearing to motion transfer disturbing ruling. the venue morning in venue was scheduled for 8:30 transcript in this of October 1993. The As a further attack on the at the same case shows that 9:00 of morn- that he ruling, argues venue Casualty ing, Fire its State Farm filed by bound the admissions of State cannot be plaintiffs’ supplemental responses re- to the Casualty. Generally, Bleeker Farm Fire and Among quests for admissions. these admis- correct; response in matters admitted sions, Casualty Farm Stаte Fire and con- requests conclusively es for admissions recording ceded that it had several local only against party making the tablished in agents Hidalgo a claims service office Corpus Cartwright MBank admission. admissions, County. By initial its set (Tex. N.A, Christi, already which were on file with the trial denied) (cit 1993, writ App. Corpus hearing, at court the time of venue State — 169(2)). ing Farm had admitted that Tex.R.Civ.P. Fire grounds, we do agents on other not reach denied that State Farm had error claim, Hidalgo County handling the denial issue of whether Bleeker's was sufficient specifically but he denied that State Farm never plaintiffs’ duty prima to offer facie raise agency Hidalgo Fire and had an proof. County. we Because resolve Bleeker’s conclusively In this involving the admissions from the claims Farm Fire State only against establish venue facts Casualty. Consequently, cannot Casualty. Farm Fire and See Tex.R.Civ.P. complain that now State Farm Fire and Ca (trial may consider admissions sualty joined improperly in this lawsuit. determination). making venue The admis- Co., Grocery Rosales v. H.E. Butt merely support sions the trial court’s deter- (Tex.App. Antonio writ — San proper mination that venue is in the underin- denied) (citing Barton v. Farmers’ State coverage sured motorist enforcement action (Tex.1925) Bank, for rule S.W. against Casualty. Fire and But policy disfavoring multiple lawsuits sub 5.06-1(8) (Vernon see Tex.Ins.Code Ann. art. waiver). jects misjoinder issues to Supp.1996) (mandatory provisions venue coverage underinsured motorist summary, enforcement In our review of the entire rec- 1995). August actions commenced from ord reveals some evidence that venue was These admissions did not establish venue in codefendant, proper for Bleeker’s Bleeker; rather, against the action oper- Farm Fire and Bleeker neither ation of former section 15.061 established requested a severance from that codefendant Hidalgo County permissive aas venue for objected fact, joinder. nor the suit May Bleeker. Act of pretrial challenged motion in which Bleeker R.S., Leg., 1,§ 69th ch. the State Farm defendants 3242, 3249, repealed, by Tex.Gen.Laws Act of venue, was his motion to transfer which is 8, 1995, May R.S., Leg., § 74th ch. proper question not a motion which to (now 1995 Tex.Gen.Laws see Tex. 87(3)(a) (“no party claim. Tex.R.Civ.P. shall (Vernon 15.005 Civ.Prac. & Rem.Code Ann. required purposes sup- ever be for venue Supp.1996)). To defeat venue under section port by prima the existence of a 15.061, Bleeker had to show that venue was action”). cause of proper Because venue was permissible any defendant, that a for claims State Farm Fire and Ca- mandatory provision compelled some other sualty and because Bleеker failed to attack venue, or that the codefendant improper- joinder claims, of those he cannot com- ly joined. See id. Bleeker was not bound plain improper that venue was for claims admissions; Casualty’s State Farm Fire and against him. We overrule Bleeker’s first two attempted Bleeker could have disprove points that his foreign corpora- eodefendant was a of error. agency
tion with Hidalgo County, but Similarly, he did not. Bleeker offered no AD LITEM GUARDIAN FEES argument relating any mandatory venue *7 third, fourth, By points his and fifth of provision. Accordingly, only question the re- error, ap- Bleeker attacks the trial court’s maining is whether properly chal- pointment guardians ad litem and the lenged joinder the of State Farm Fire and court’s assessment of their fees. Before we fees, reach the issue of we will address interpleader State Farm’s action was сon by appointing whether the trial court erred solidated plaintiffs’ with claims guardians litem. ad pursuant plaintiffs’ to motion to con solidate. The consolidation order reflects issue, parties As a threshold the dis that the trial hearing court conducted a on pute Rodriguez appoint whether Frank was matter, this but the record now before us represent ed to either Joel Elizabeth does not contain a statement of facts Ochoa, longer who were no minors the hearing. that presume We must that a rec time the ease came to trial. The court’s hearing ord of this supported would have the findings of fact recite that “Frank J. Rodri Butron, judgment. trial Cantu v. guez appointed guardian was as ad litem to 720 (Tex.App. Corpus Christi — represent the interests of Amalia Misia denied) (citing writ DeSantis v. Wack Ochoa, Ochoa, Abilene Joel Ochoa and Eliza (Tex.1990) Corp., enhut 793 S.W.2d Howеver, Tex.R.App.P. 50(d)). beth Ochoa.” the trial court’s find Moreover, objected ings of fact and joinder neither conclusions of law must be the of Farm requested Fire and nor together greatest possi- a severance construed and in the harmony (Tex.App —Corpus judgment. ble with Brown 907 S.W.2d . Theatres, Inc., writ). reviewing no A court Frontier 369 S.W.2d will Christi Butron, (Tex.1963); Cantu v. 921 S.W.2d overturn a award absent evidence not fee (Tex.App. Corpus Christi showing a clear abuse of discretion. — requested). Accordingly, Ctr., must also writ we Brownsville-Valley Regional Medical findings regarding (Tex. the what Gamez, consider Inc. v. awarded Amalia Misia and amounts were 1995). ap law
Abilene as well as the conclusion of proving percentage those awards. fees of findings In of fact and this the findings Construing together with the the of law conclusions show law, it is Rodri apparent conclusions of part of the it awarded on future based fees guez’s amount for fee does reflect performed by guardians to be the ad services Ac representing Joel or Elizabeth Ochoa. completed, litigation litem. Once the was finding cordingly, Rodriguez the was however, remaining there conflict be was represent and Elizabeth appointed to Joel parents the and the inter tween interests unnecessary disposition Ochoa is our id. ests of their minor children. See at 755- and need not further addressed. this suit A trial its 56. court abuses discretion Tex.R.App.P. 90(a). awarding ad litem fees for services to be performed after resolution of conflict wards, regard to the other we gave appointment. of interest that rise to two must consider this suit involved Flores, Sales, A. Inc. v. Frank Smith claims groups of defendants. The (Tex.1995). Accordingly, we by S.W.2d resolved the State defendants were points and fifth sustain Bleeker’s fourth payment clearly of limited that were funds nоt speci error. Because the trial court did of the 13 insufficient to meet total claims compensa fy portion of plaintiffs. plaintiffs brought what the award Each of services, future we remand issue claims Bleeker. Some tion for different inju personal claims were to the trial court for reconsideration. See id.; Gas, ries, brought plaintiffs Valley other claims for Rio 907 S.W.2d at but Grande injuries personal with claims for combined wrongful or hus death their father personal injury
band. Each GROSS NEGLIGENCE INSTRUCTIONS according injuries. to his Un differed or her error, By point his sixth Bleeker com- circumstances, trial court did der these by refusing plains that the trial court erred by appointing guard not abuse its discretion requested gross give his instructions represent minors’ inter ians ad litem issue, gross negligence negligence. Gallegos Clegg, ests. ( predicated upon an affirmative Tex.Civ.App. Corpus writ which — n.r.e.). negligence, finding of wаs submitted to We therefore overrule Bleek ref'd error, concerns the as follows: third which er’s guardians appoint decision to trial court’s *8 negligence of RONNIE DALE Was ad litem. gross negligence? BLEEKER five, By points of error four negligence” such an entire means “Gross challenges the of the fees amounts that the act or of care as to establish want guardians Rule 173 awarded to the ad litem. result of actu- question was the omission autho the Texas Rules of Civil Procedure rights, wel- al conscious indifference a reason rizes the court award an ad litem fare, safety affected it. persons of the TexR.Cxv.P. fee for his or her services. able awarded- compensation 173. The amount of or “NO” ANSWER: “YES” discre to the ad litem lies within the sound _ ANSWER: trial court. v. York Crane tion of the Simon (Tex. Co., requests to trial court Bleeker’s refused Rigging & 739 S.W.2d following instructions: 1987); Lopez, v. include the Valley Rio Gas Co. Grande REQUESTED opinion. CHARGE NO. wake of that Merrell Dow Pharma ceuticals, Havner, Inc. v. 907 S.W.2d gross negli- conduct Defendant’s is not (Tex.App. Corpus Christi writ — gence unless Defendant’s conduct created Nevertheless, granted). we have not inter Defendant, an extreme risk of harm and preted require mandate to automatic Bleeker, was aware of extreme risk of charge reversal in cases where the was ac harm. ceptable at time of trial but would be consid inadequate light ered of Moriel. Id. REQUESTED CHARGE NO. Moreover, interpreted we have never gross negligence Wal-Mart definition of as negligence” “Gross more than mo- [means] required incorporated an instruction to be inadvertence, mentary thoughtlessness, charge. By into the court’s his sixth judgment. error of error, impose Bleeker asks that we such We will address the trial court’s refusal of review, requirements in the case under which proposed separately. the two instructions tried the interval between Wal-Mart “REQUESTED Bleeker’s CHARGE NO. issue, and Moriel. need not reach this We Supreme 1” is based on the Texas Court’s however, because our examination of the rec gross negligence definition of from Wal- ord reveals that the at evidence offered trial Stores, Alexander, Mart Inc. v. does not warrant submission of Bleeker’s (Tex.1993). 322, 826 In its discussion of the “REQUESTED 1.” CHARGE NO. parameters legal sufficiency to a review of a gross negligence finding, the Wal-Mart The trial court must in submit following court offered the definition: proper structions and definitions that gross reaffirm that a negligence find- enable the to render a Tex. verdict. ing may upheld appeal only if there 277; Dept. R.Civ.P. Texas Human Servs. a) is some evidence that the defendant’s (Tex.1995). Hinds, S.W.2d conduct created an extreme risk of harm However, court must submit and, b) the defendant was aware of the those instructions and definitions that are extreme risk of harm. With this definition pleadings sup raised the written mind, we turn to the issue of whether 278; ported by evidence. TexR.Civ.P. see supports jury’s finding Prods., Inc., Rivera v. Herndon Marine gross negligence in this case. (Tex.App. Corpus S.W.2d Christi — denied). year Id. Less than a after the Wal-Mart The court need not sub writ court gross negli- recast the definition of mit an issue to the if the matter gence, supreme conclusively recharacterized the resolved under the evidence. components: definition’s two Wyndham Self, Hotel Co. (Tex.App. Corpus 635-36 writ Christi — summary, gross negli- the definition of denied); Hart, Gilgon, Inc. v.
gence includes two elements: (Tex.App. Corpus — (1) objectively standpoint viewed from the denied). writ actor, of the the act or must omission risk, degree involve an extreme consid- review, In the case under Bleeker’s own ering probability magnitude testimony following establishes the facts: (2) others, potential harm to actor knowing admitted (cid:127) Bleeker that he would actual, subjective must have awareness of by any be affected amount of alcohol. involved, the risk but proceed nevertheless Bleeker admitted that he had been drink- (cid:127) rights, in conscious indifference ing night on the of the accident. safety, or welfare others. *9 Bleeker admitted that he the acci- caused (cid:127) Moriel, Transportation Ins. Co. v. dent. (Tex.1994). S.W.2d said that drinking
We have the detailed instructions Bleeker admitted that his on the (cid:127) may required gross night set out in Moriel be of the accident was a factor caus- negligence ing suits that come to trial in the the accident. aspect proposed con- proceed- that criminal The of this instruction Bleeker admitted
(cid:127) cerning the risk the awareness of ings rising from the accident were resolved defendant’s been a of the common-law driving his that he while has cornerstone admission was negligence gross of in Texas night the accident. definition intoxicated on of the 19-21; Moriel, years. at over S.W.2d that cannot recall admitted he (cid:127) Mfg. Press & Co. Southern Cotton cf. immediately preceding accident events the (1880) (“Gross neg- Bradley, 52 Tex. asleep and that fell or otherwise lost he ground exemplary to be dam- ligence, the driving. while he consciousness was care ages, should that entire want of that Bleeker admitted he is affected (cid:127) con- presumption would raise a of a which the alcohol that the alcohol he drank and consequences.”). to scious indifference night may of him the accident have caused complaint Bleeker’s is without merit because asleep to fall the wheel. at gross negligence re- the court’s definitiоn of drinking knowing Bleeker admitted that (cid:127) quired to find that he acted with wrong. driving then is indifference,” incor- “actual conscious which Moriel, porates the element. awareness See Bleeker admitted that he continues (cid:127) (“Gross then, negligence, S.W.2d at 21 in violation terms of 879 drink alcohol of the negligence respect ordinary probation his differs with his and that he has lied to must be to both elements —the defendant probation officer about this fact. ‘consciously her con- indifferent’ his or any contrary The record does not contain degree of must an extreme duct ‘create suggest driving evidence to while intoxi- ”). risk.’ something cated less than an extreme creates gross negligence of court’s definition risk of harm. incorporated subjective as- “awareness” court, again at Both trial and before this instruction, proposed but it pect of Bleeker’s partiеs argued vigorously objective clear it is less included the disputed many beers he drank how (trac- id. “extreme risk” issue. See at 19-22 merely asleep. passed whether he out or fell subjective negli- component gross ing the However, issues immaterial in these fact years gence back to the common- over undisput- light of the evidence that was other tracing objective com- law definition but Although that he had ed. Bleeker denied ponent back and Williams Wal-Mart beers, not more than three or four he did Inc., Indus., v. Steves enough to contest evidence that he drank (Tex.1985)). However, we not resolve need beyond legal limit. become intoxicated emphasis instruction’s proposed whether light In that he uncontroverted evidence represents on creation of an extreme risk was too intoxicated to drive at the time of encompassed tradi- in the burdеn is not accident, drank is the number beers he To what- gross negligence definition. tional Similarly, not matter irrelevant. does may include instruction ever extent Bleeker’s pass whether alcohol caused Bleeker proof, the instruction was an added burden of asleep. merely him fall out or caused unnecessary that Bleeker because that he either drank so much undisputed. risk was created extreme beyond legal limit became intoxicated Hotel, Wyndham at 635-36. See driving he was and then lost consciousness as by refusing Bleek- The trial court did not err home. “REQUESTED 1.” er’s CHARGE NO. compare We must the evidence above, As we discussed “REQUESTED record Bleeker’s charge the fol contained 1”: CHARGE NO. lowing gross negligence: definition negli- an entire gross negligence” “Gross means such Defendant’s conduct the act created want of as to establish that gence Defendant’s conduct care unless Defendant, actu- question harm omission in the result an extreme risk of Bleeker, rights, wel- risk of al conscious indifference aware of the extreme fare, by it. persons affected safety harm. *10 2,” By “REQUESTED statutory his NO. ences between the common-lawand CHARGE definitions). sought provided Consequently, to have the Bleeker’s “RE- QUESTED 2” amounts to no following with the additional definition: CHARGE NO. more than a “different shade” of the issue negligence” “Gross more than mo- [means] by submitted the trial court. See Tex. inadvertence, mentary thoughtlessness, or RApp.P. (“A judgment shall not be re- judgment. error of versed because of the failure to submit other September Because this suit was filed after phases and various or different shades of the 1, 1987, 1, 1995, September but before question.”). Accordingly, same we overrule applicable statutory gross negli- definition of point Bleeker’s sixth of error. gence language inсludes the that Bleeker requested: EVIDENCE OF INSURANCE negligence” “Gross means more than mo- trial, When this case went inadvertence, mentary thoughtlessness, or Farm the State de judgment. error of It means such an en- dispute fendants were limited to a whether tire want care as to establish that the $300,000 $260,- Farm owed or act or omission was the result of actual already paid. 000 that had Bleeker char rights, conscious indifference to the wel- question acterizes this issue as of law fare, safety person affected. could have been resolved the court’s de 3,1987, C.S., Act Leg., of June 70th 1st ch. policy termination of whether the would be 2.12, § repealed by, 1987 Tex.Gen.Laws governed by Although Texas or Illinois law. 11, 1995, April Leg., R.S., Act of 74th ch. why the record does not reflect this issue However, 1995 Tex.Gen.Laws 109. was not resolved before the case went slightly common-law definition is different trial, appeared par аt trial as a specific language does include the ty-defendant because the issue remained requested: that Bleeker pending. prevent drawing To negligence, ground Gross to be the for mistaken conclusions about State Farm’s role exemplary damages, should be that entire sought in the to offer evidence
want of care which would raise the belief that State Farm insured the complained that the act or omission of was By did not him. insure his final the result of a conscious indifference to the error, complains that the trial court right person persons or welfare of the by refusing erred him allow to offer such to be affected it. evidence. Ung, Universal Servs. Co. v. 904 S.W.2d The trial court is vested with the (Tex.1995) (citing Royalty Burk v.Co. authority to determine whether evidence Walls, (Tex.1981)). should be admitted or excluded. Tex.R.Civ. Although statutory appli- definition is 104(a); Invs., Inc., v. T.M.E. Cecil Evid. review, cable tо the case under the Texas (Tex.App —Corpus . Supreme recognized Court has that the stat- writ). 1994, no This within the decision lies ute codified the common-law definition with- sound discretion of the trial court and will Moriel, out change. elemental 879 not be disturbed absent demonstration Accordingly, language S.W.2d at 20. “the Cecil, the court abused its discretion. defining gross negligence applied to be in a 43; Steenbergen S.W.2d at v. Ford Motor particular appli- case should not turn on the Co., (Tex.App . —Dallas cability of the Act.” Id. denied), denied, writ cert. 506 U.S. (1992). language The definition at issue combines 121 L.Ed.2d To 113 S.Ct. language from the statute with from the show that the trial court abused its discre tion, Significantly, common-law definition. Bleeker must demonstrate incorporates noteworthy arbitrarily definition both stat- court excluded the evidence utory guiding modifications: principles. the use of the words without referencе to See (the Inc., Aquamarine Operators, “establish” and “actual.” id. See words Downer v. denied, (Tex.1985), key and “actual” “establish” are the differ- S.W.2d cert. *11 1159, 106 probably did not 476 U.S. S.Ct. 90 L.Ed.2d tiffs and insure Bleeker did (1986). Furthermore, improper judg- a an we cannot reverse not cause the rendition of Accordingly, of judgment improvident on the exclusion ment. we overrule Bleeker’s Tex.R.App.P. 81(b)(1). point unless the so critical of evidence evidence was final error. in probably that its exclusion resulted the CONCLUSION judgment. of an
rendition incorrect Tex. R.App.P. 81(b)(1); Gilgon, at 569. 893 S.W.2d judgment AFFIRM the in favor the We the plaintiffs, but we REVERSE order Generally, prin Rule 411 is the chief awarding ad litem guardians fees the guide ciple that should the court’s determina that issue to future services REMAND regarding tions evidence of insurance: the trial court. person Evidence that a or was not against liability insured is not admissible OPINION ON MOTION upon negli the issue whether he acted FOR REHEARING gently wrongfully. or otherwise overrule motion for rehear- Bleeker’s circum limited Under Tex.R.Civ.Evid. bane, ing rehearing but we en will stances, may jury party a inform the of its briefly arguments address Bleeker’s venue clarify mis own insurance status to certain clarify our decision. the conceptions might that have formed. opinion improp- contends that our Hinton, University Tex. See 822 S.W.2d erly encumbered him with the burden of writ). (Tex.App. no — Austin the proof on the venue issue. Before cases, however, prohibi general In most court, proof placed the burden of is on “the admitting tion of insurance evidence pri- pleading “make party the venue fact” to operates preclude defendants show it fact” when has ma that venue ing they Rojas v. Vuoco that uninsured. specifically been denied. lo, (Tex.1944); Tex.R.Civ.P. Tex. cf. 87.3(a). however, appeal, search On we “the (“Evidence person R.Civ.Evid that record, trial on the including entire mer- liability not or was not insured is its.” admissible”) added). & Rem.Code Ann. Tex.Civ.Prac. (emphasis 15.064(b) (Vernon 1986). “any If find we if this case Even we were conclude that prop- ... that venue was probative evidence party presents the rare situation in which er, uphold must trial court’s determi- we status, may inform the of its insurance on the Bonham nation matter of venue.” would Bleeker’s we nevertheless overrule Beadle, Bank v. During before the of error. voir dire (Tex.1995). review, Under this standard venire, allowed entire Bleeker’s counsel was uphold the trial court’s venue determina- we clarify the State Farm defendants’ role in evidence; any supported by if it is tion the case: that not matter who introduced evi- does things to make clear [0]ne of I’d like dence. very my client beginning from the is by Ronnie Bleeker. He is not insured commenced, When suit was this Farm. I hired have not been provided the venue laws as follows: totally Farm. State Farm is a dif- public, Foreign corporations, private or case, from ferent defendant in this Mr. associations, joint-stock companies or provided insurance Bleeker. State state, incorporated laws of this in plaintiffs to certain and all of the state, may doing business in this be sued They did Mr. Bleeker. case. not insure any county part in or in which all Moreover, accrued, any county specifically the trial court instruct cause of action or jurors company may agency or they not consider have ed the should which county in parties representative, any or in which speculate whether were may principal company by insurance. these circum office of the covered Under situated, or, stances, agent if has the trial decision to exclude the defendant state, plain- representative then insured the in this State Farm county Regarding requirement multiple which the or either of *12 “properly them reside. defendants or claims must be joined,” had no burden to offer 3, 1987, C.S., 4, Leg., Act of June 70th 1st ch. joinder prima proof proper facie that was 1, 52, 58, § repealed by 1987 Tex.Gen.Laws specifically because Bleeker never denied 8, 1995, May R.S., 138, Leg., Act of 74th ch. any join- venue fact relevant to the issue of 10, 978, § 1995 Tex.Gen.Laws 981. this Nielson, 99, der. See Gonzalez v. Casualty State Farm Fire and filed 1989, (Tex.App. Corpus 102 writ de — (1) “incorporated admissions that it was un nied) (all allegations accepted are as true (2) Illinois,” der the laws of the State of except particular specifically facts denied in Texas,” “doing was business in the State of transfer). motion to In his motion to trans (3) recording agents it had local fer, Bleeker asserted that McAllen, Hidalgo County, “locatеd Texas.” “against cause of action Farm Fire State law, recording agents As a matter of local exist,” argument does not but this represent company the insurance and have any duty does not prima raise to offer facie authority company. to bind the insurance 87.3(a) (“no proof. party shall Tex.R.CivP. 2(a)(1) (Ver § Tex.Ins.Code Ann. art. 21.14 required purposes ever be for sup venue Supp.1996). Agents non with discretion to port by prima proof the existence of a company qualify “agency bind their as action”). Similarly, argument cause of representative” purposes for the of venue in regarding Bleeker’s motion to transfer against foreign suits corporations. See Ruiz plaintiffs’ “bootstrapping” against of claims Conoco, Inc., (Tex. 752, specific the various defendants is not a denial 1994); Falknor, Reliance Ins. Co. any particular venue fact. See Maranatha 721, S.W.2d (Tex.Civ.App. Co., Temple, — Houston Enterprise Inc. v. Prod. 1973, n.r.e.). Thus, [1st Dist.] writ ref'd (Tex.App. S.W.2d [1st — Houston Casualty’s State Farm Fire and admissions denied) (“ ‘specific Dist.] writ denial’ of probative are some Hidalgo evidence that requires a venue fact that the fact be itself County proper was a venue for claims denied”). Moreover, object Bleeker neither against Casualty. State Farm Fire and joinder ed to the of State Farm Fire and requested nor a severance from the provided: The venue rules further against Having claims that eodefendant. parties joined When two or more as ruling failed to obtain a from the trial court defendants the same action or two or any allegation misjoinder, on Bleeker can more proper- claims or causes of action are pursue argument appeal. not on Tex. ly joined in R.App.P. one action аnd the court has 52(a). against any venue of an action or claim one Regarding the issue of whether the defendant, the court also has venue of all trial court had “venue of an claim action or against claims or actions all defendants defendant,” against any argues one unless one or more of the claims or causes impermissibly placed that we the burden of governed by action is one of the [manda- proof on him. This misconstrues our deci tory provisions] requiring venue transfer merely sion. We searched the entire record action, proper of the claim or cause of on any support evidence that would the trial objection, mandatory county. Hidalgo County court’s determination that 17, 1985, R.S., May Leg., Act of 69th ch. proper was venue the claims 3242, 3249, § repealed 1985 Tex.Gen.Laws Casualty. State Farm Fire and This 8, 1995, R.S., May Act of Leg., 74th ch. providеd by State Farm Fire and Casu 138, Tex.Gen.Laws Un alty’s admissions. In the absence of this provision, may challenged der this evidence, venue we the trial would have reversed grounds that the defendants or claims are judgment and remanded for a new joined, improperly WTFO, Braithwaite, the court does not have trial. See Inc. v. defendant, any mandatory venue over or a (Tex.App. — Dallas writ). provision requires transfer. Id. Similarly, No manda we would have reversed the tory provision governs judgment this case. trial court’s if Bleeker had intro- contrary under destroyed established
dueed
prevailing
rules without the need of
venue
probative
proof establishing
value
Hi-
May
proof.
Act of
additional
See
dalgo
proper
as a
venue for claims
R.S.,
1,§
Leg.,
69th
ch.
Farm Fire and
See
1995).
(repealed
Tex.Gen.Laws
Ruiz,
did
shift
der of sanctions for admis 215(4).
sions. Tex.R.Civ.P. The facts admit *14 knowledge
ted were all within the of State Casualty
Farm Fire and and were sufficient to resolve the issue of whether “the court has UNIVERSITY PREPARATORY against” venue of аn action or claim SCHOOL, Appellant, Farm Fire and Because the arguably venue facts even denied were facts underlying ruling Hidalgo County HUITT, Huitt, III William and Barbara proper was a venue for claims individually and next friend of as Casualty, Farm Fire and the record contains Huitt, Appellees. Marc every necessary some fact uphold plain the venue determination. The No. 13-94-439-CV. tiffs need not offer further that State Texas, Appeals of Court of Casualty foreign corpora Farm Fire and is a Corpus Christi. doing agents
tion business in Texas with Hidalgo County when State Farm deliberate Sept. 1996. ly specific removed each of these facts from Rehearing Overruled Jan. controversy and the record contains no con trary Top evidence. See Red Taxi Co. v.
Snow, (Tex.Civ.App.— writ).
Corpus Christi
Finally, Bleeker contends we failed to con- argument
sider his claim Fire and
not a bona fide cause of action. consid- argument,
ered this but the record did not
substantiate Bleeker’s contention. To the
contrary, the record showed that the claims State Farm Fire and includ- dispute payment
ed a as to whether the due policy
under the underinsured motorists
$300,000 $260,000. The record further dispute
demonstrated that this was never pretrial
resolved motions. In his court,
reply brief before this Bleeker even $40,000 dispute
conceded that this remained approached. as the trial
unresolved date
Moreover, any briefing Bleeker did not offer why dispute ground-
to address was so