Texas SC decision curbs forum shopping, reinforces recent mandamus ruling

Steve Korris May 29, 2008, 7:54am

Justice Paul Green

AUSTIN – If a Texas judge transfers a suit to another county on a defense motion, the plaintiff can't drop it there and sue in a third county, the Supreme Court declared May 23.

By writ of mandamus, the justices yanked an airplane crash case away from District Judge Thomas Culver of Fort Bend County.

Culver should have enforced a Harris County judge's order transferring the case to Williamson County, the justices agreed.

"That venue was also proper in Fort Bend County does not change the result," wrote Justice Paul Green.

The writ serves two big purposes. It curbs forum shopping and reinforces the court's new position applying its mandamus power as "instant replay."

In a May 16 opinion the justices held that they could halt lower court proceedings to review orders rather than making parties wait until after trial to seek remedies on appeal.

Three justices who dissented from that opinion concurred in this one.

"I respectfully disagree with the Court's expansion of its mandamus jurisdiction beyond established legal tenets," wrote Justice Dale Wainwright.

"Because the Court has indeed crossed that bridge," he wrote, "I reluctantly join the Court's opinion." Chief Justice Wallace Jefferson and Justice Harriet O'Neill agreed.

On forum shopping, however, everyone agreed.

The justices invoked Rule 87 of civil procedure stating that "if an action has been transferred to a proper county in response to a motion to transfer, then no further motions to transfer shall be considered."

Green wrote that "once a venue determination has been made, that determination is conclusive as to those parties and claims."

He wrote, "Because venue is then fixed in any suit involving the same parties and claims, it cannot be overcome by a nonsuit and subsequent refiling in another county."

The family of the late Thomas Creekmore of Houston must now litigate in the home county of the defendant, Team Rocket L. P.

Creekmore died when an airplane he had built from a Team Rocket kit crashed in Fort Bend County, southwest of Houston.

Widow Leslie Creekmore sued Team Rocket in Harris County.

Team Rocket moved to transfer venue to Williamson County, its place of business.

Team Rocket argued that Harris County venue was improper because Team Rocket didn't deliver parts to Creekmore's home there.

A Harris County judge agreed and sent the case to Williamson County.

The Creekmores immediately nonsuited the case and refiled it in Fort Bend County.

Team Rocket moved for transfer and Culver denied it.

Team Rocket petitioned for mandamus relief at the 14th District appeals court in Houston, and judges there denied it.

Team Rocket petitioned the Supreme Court for mandamus relief and prevailed.

"Our venue statutes create a balance: a plaintiff has the first choice of venue when he files suit, and a defendant is restricted to one motion to transfer the venue," Green wrote.

"By defying the Harris County trial court's venue ruling by nonsuiting and refilling elsewhere, the Creekmores disrupted that balance in their favor and thereby impaired Team Rocket's procedural rights," he wrote.

"If a plaintiff has an absolute right to nonsuit and refile, as the Creekmores contend, nothing could stop them from filing in each of Texas's 254 counties until he finds a favorable venue," he wrote.

Robert McCreary, Cynthia Sheppard and Mahon Garry Jr. represented Team Rocket.

Gary Evans and George Coats represented the Creekmores.

More News