Reversed and Remanded and Opinion Filed December 19, 2013




                                             Court of Appeals
                                                                S     In The


                                      Fifth District of Texas at Dallas
                                                           No. 05-13-01224-CV

            UNION PACIFIC RAILROAD COMPANY, Appellant
                                 V.
CATHERINE STOUFFER, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF
GARY LEE STOUFFER, JR. AND AS NEXT FRIEND OF SHANNON STOUFFER AND
                 SHANE STOUFFER, ET AL., Appellees

                                   On Appeal from the 116th Judicial District Court
                                                Dallas County, Texas
                                        Trial Court Cause No. DC-12-15204


                                                                 OPINION
                                         Before Justices FitzGerald, Lang, and Myers
                                                Opinion by Justice FitzGerald

            This interlocutory appeal arises from the trial court’s order denying Union Pacific

Railroad Company’s motions to transfer venue.1 Because we conclude plaintiffs did not meet

their burden to establish that Union Pacific maintains a principal office in Dallas County, we

reverse the trial court’s order.

                                                              BACKGROUND

            On November 15, 2012, a truck and flatbed trailer carrying military veterans and their

spouses in a parade entered an active railroad crossing and was struck by a train in Midland,


    1
        Union Pacific filed three identical motions to transfer venue in response to separate petitions filed by plaintiffs and interveners.
Texas. Several individuals were injured or killed. Smith Industries, Inc. (“Smith”) provided the

truck and trailer, and the train was operated by Union Pacific Railroad Co. (“Union Pacific”).

              As a result, Catherine Stouffer, Ada Stouffer, and Gary Stouffer filed this personal injury

and wrongful death suit against Smith and Union Pacific in Dallas County. Petitions in

Intervention were filed by Angela Boivin, Leonce Boivin, Lucette Boivan, and Tiffaine Lubbers

(Collectively, with the Stouffers and subsequent interveners “Plaintiffs”). The petition asserted

that Smith is a Texas corporation with its principal place of business in Midland, Texas. The

petition further alleged that Union Pacific is a foreign corporation authorized to do business in

the state of Texas, and maintains a principal office in Dallas County. Union Pacific filed a

motion to transfer venue from Dallas County to Midland County.2 In so doing, Union Pacific

denied that it maintains a principal office in Dallas County and asserted that its sole principal

office in Texas is located in Harris County.

             The plaintiffs involved in the case at that time responded to the motion, and Union

Pacific replied. The court conducted a hearing and denied the motion to transfer. Following the

trial court’s determination on venue, several additional petitions in intervention were filed.3 This

interlocutory appeal challenging the trial court’s determination on venue followed.

                                                                   ANALYSIS

Appellate Jurisdiction

             Plaintiffs contend that appellate jurisdiction is lacking and have filed a motion to dismiss

the appeal. Union Pacific contends that appellate jurisdiction is proper.




     2
         Smith also filed a motion to transfer venue, but that motion is not at issue here.
     3
        The additional plaintiffs include: Richard Sanchez, Heather Sanchez, Todd King, Laci King, Aaron Kibby, Laura Kibby, Thomas Pleyo,
Kelli Pleyo, Shane Ladner, Margaret Ladner, Mary Michael, Travis Reichert, Elsie Reichert, Michael Lubbers, Karen Lubbers, Patrick Michael,
and Sherry Michael.



                                                                          –2–
       Interlocutory orders generally are not appealable. See Lehmann v. Har–Con Corp., 39

S.W.3d 191, 195 (Tex. 2001) (“[T]he general rule . . . is that an appeal may be taken only from a

final judgment.”). The legislature has reinforced the general rule in the venue context by

providing that “[n]o interlocutory appeal shall lie from the [trial court’s venue] determination.”

TEX. CIV. PRAC. & REM. CODE ANN. § 15.064(a) (West 2002). But the legislature has also

authorized interlocutory appeals from certain venue rulings. The exception is found in section

15.003, which provides in pertinent part as follows:

               (a) In a suit in which there is more than one plaintiff, whether the
       plaintiffs are included by joinder, by intervention, because the lawsuit was begun
       by more than one plaintiff, or otherwise, each plaintiff must, independently of
       every other plaintiff, establish proper venue. If a plaintiff cannot independently
       establish proper venue, that plaintiff’s part of the suit, including all of that
       plaintiff’s claims and causes of action, must be transferred to a county of proper
       venue or dismissed, as is appropriate, unless that plaintiff, independently of every
       other plaintiff, establishes that:

                       (1) joinder of that plaintiff or intervention in the suit by that
               plaintiff is proper under the Texas Rules of Civil Procedure;

                      (2) maintaining venue as to that plaintiff in the county of suit does
               not unfairly prejudice another party to the suit;

                      (3) there is an essential need to have that plaintiff’s claim tried in
               the county in which the suit is pending; and

                      (4) the county in which the suit is pending is a fair and convenient
               venue for that plaintiff and all persons against whom the suit is brought.

              (b)   An interlocutory appeal may be taken of a trial court’s
       determination under Subsection (a) that:

                      (1)   a plaintiff did or did not independently establish proper
               venue; or

                       (2) a plaintiff that did not independently establish proper venue
               did or did not establish the items prescribed by Subsections (a)(1)-(4).

Id. § 15.003(a)–(b) (West Supp. 2012) (emphasis added). Before section 15.003 was amended in

2003, its interlocutory-appeal provision was quite different. It provided as follows:



                                               –3–
       Any person seeking intervention or joinder, who is unable to independently
       establish proper venue, or a party opposing intervention or joinder of such a
       person may contest the decision of the trial court allowing or denying
       intervention or joinder by taking an interlocutory appeal to the court of appeals
       district in which the trial court is located under the procedures established for
       interlocutory appeals.

Act of May 8, 1995, 74th Leg., R.S., ch. 138, 1995 Tex. Gen. Laws 978 (amended 2003) (current

version at TEX. CIV. PRAC. & REM. CODE ANN. § 15.003 (West Supp. 2012)) (emphasis added).

Thus, under the prior law, interlocutory appellate jurisdiction was limited to review of joinder

and intervention rulings made in a venue context. After the 2003 amendment, interlocutory

appellate jurisdiction in multiple-plaintiff cases extends to the determination of whether the

plaintiffs have independently established proper venue or not. See TEX. CIV. PRAC. & REM.

CODE ANN. § 15.003(b)(1).

       Thus, the question presented in this case is whether the trial court’s order denying Union

Pacific’s motions to transfer venue is a “determination under Subsection [15.003](a) that

[appellees] did or did not independently establish proper venue.” Id. When we interpret a

statute, our task is to ascertain the legislature’s intent. See Fresh Coat, Inc. v. K–2, Inc., 318

S.W.3d 893, 901 (Tex. 2010). We begin with the statutory text, relying whenever possible on

the plain meaning of the words of the statute. Id. Under the plain language of this statute, the

first requirement imposed by section 15.003(b)(1) is that the trial judge’s order must be one

“under Subsection [15.003](a).” Section 15.003(a) sets out some specific venue rules applicable

only to multiple-plaintiff cases. Thus, the first requirement imposed by section 15.003(b)(1) is

that the trial court’s order must be made in a case involving multiple plaintiffs. This requirement

is met on the facts of this case. The second requirement for appellate jurisdiction to exist under

section 15.003(b)(1) is that the trial court’s order must be one that determines whether a plaintiff

independently established proper venue. In this case, every plaintiff relied on the “defendant’s

principal office” venue provision to try to establish proper venue in Dallas County. See TEX.
                                                –4–
CIV. PRAC. & REM. CODE ANN. § 15.002(a)(3) (providing that venue is proper “in the county of

the defendant’s principal office in this state, if the defendant is not a natural person”).

Nevertheless, section 15.003(a) still obliged each plaintiff to establish venue “independently” of

every other plaintiff. Nothing in section 15.003 suggests that section 15.003(b)(1)’s interlocutory

appeal is available only if different plaintiffs rely on different theories of proper venue.

Accordingly, we conclude that the trial court’s ruling that venue in Dallas County is proper for

all plaintiffs was a determination that every plaintiff “independently establish[ed] proper venue”

within the meaning of section 15.003(b)(1), and we have interlocutory appellate jurisdiction.

       Our interpretation of section 15.003(b) is consistent with the interpretation adopted by the

Corpus Christi Court of Appeals in Shamoun & Norman, LLP v. Yarto International Group, LP,

398 S.W.3d 272 (Tex. App.—Corpus Christi 2012, pet. dism’d). That case involved two

plaintiffs, one of which had become a plaintiff by intervening in the case. Id. at 280. The

defendants moved to transfer venue, and the trial court denied the motion. Id. at 280–81. The

defendants perfected an interlocutory appeal from that ruling, and the court of appeals agreed

with the defendants that interlocutory appellate jurisdiction was proper under section 15.003(b).

Id. at 284–87. The court read the statute broadly, concluding that the 2003 amendments meant

that “interlocutory appeals are available for venue determinations in any case involving multiple

plaintiffs.” Id. at 285. The court later reiterated, “[T]he 2003 amendment expanded interlocutory

appellate jurisdiction under section 15.003(b) to all venue rulings in cases involving multiple

plaintiffs.” Id, at 287 n.18. We agree because, in a multiple-plaintiff case, every venue ruling is

necessarily a determination that a plaintiff did or did not independently establish proper venue.

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(a).

       By interpreting section 15.003(b) this way, we necessarily disagree with the position

taken by the San Antonio Court of Appeals in Basic Energy Services GP, LLC v. Gomez, 398

                                               –5–
S.W.3d 734 (Tex. App.—San Antonio 2010, order) (per curiam), disp. on merits, 2010 WL

4817053 (Tex. App.—San Antonio Nov. 24, 2010, pet. denied) (mem. op.). In that case, Nelda

Gomez sued Basic Energy, The Phia Group, and Amador and Brittany Lazo. Id. at 735–36. The

Lazos then filed third-party claims against Basic Energy, The Phia Group, and Michael Sweeney.

Id. at 736. Basic Energy filed a motion to transfer venue in which it invoked section 15.003, but

in its reply brief and its oral argument it also relied on the general venue statute, section 15.002.

Id. at 736, 737. The trial court denied Basic Energy’s motion to transfer without specifying

reasons, and Basic Energy perfected an interlocutory appeal from the ruling. Id. at 736. The

court of appeals ordered the trial court to make a clarifying order, and in an accompanying

opinion the appellate court embraced a narrow interpretation of section 15.003(b). According to

the court, the right of interlocutory appeal “extends only to plaintiffs who are unable to

independently establish proper venue apart from the joinder factors set out in section 15.003(a).”

Id. The court then said, “Sections 15.003(b)–(c) permit a party challenging the joinder of a

plaintiff who cannot independently establish proper venue to take an interlocutory appeal.” Id. at

737. Finally, the court concluded that interlocutory appellate jurisdiction would be proper if the

trial court’s ruling was based on “the joinder requirements pursuant to section 15.003” but not if

the trial court’s ruling was based on a conclusion that Gomez and the Lazos had independently

established proper venue pursuant to section 15.002, the general venue statute. Id. The trial court

issued an order stating that it had denied the motion to transfer based on section 15.002, so the

court of appeals dismissed the appeal. 2010 WL 4817053, at *3–*5.

       The Basic Energy court erred by concluding that section 15.003(b) authorizes appeals

only from venue decisions that are based on joinder rulings under section 15.003(a). See Basic

Energy, 398 S.W.3d at 736–37. Although this interpretation may have been correct before the

2003 amendments were adopted, the post-2003 version of section 15.003(b)(1) plainly permits

                                                –6–
interlocutory appeals from pure venue rulings—that is, from determinations that “a plaintiff did

or did not independently establish proper venue.”                                TEX. CIV. PRAC. & REM. CODE ANN.

§ 15.003(b)(1); see also Shamoun & Norman, 398 S.W.3d at 287 n.18 (“[T]he plain language of

the [amended] statute indicates that the Legislature did not intend to limit interlocutory appeals

to those cases where a plaintiff meets or fails to meet the joinder requirements pursuant to

section 15.003.”) (internal quotations omitted). And, as the Corpus Christi Court of Appeals

pointed out, the only way a plaintiff can “independently establish proper venue” is to show venue

under a general, permissive, or mandatory venue statute, such as section 15.002. See Shamoun &

Norman, 398 S.W.3d at 287 n.18.4 Thus, contrary to the Basic Energy court’s conclusion, a

ruling on a motion to transfer venue can be made under both section 15.002 and section 15.003.

The ruling in the instant case is an example of such a ruling: it was made under section 15.002

because plaintiffs relied on the principal-office provision of section 15.002(a)(3) for proper

venue, and it was made under section 15.003 because this is a multiple-plaintiff case.5

          To summarize, in a multiple-plaintiff case, an order denying a motion to transfer venue of

the entire case is a determination that every plaintiff independently established proper venue.

See TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(a). Such orders are subject to interlocutory

appeal. Id. § 15.003(b)(1). Accordingly, we have appellate jurisdiction over this appeal, and we

deny appellees’ motion to dismiss the appeal.




     4
        The Shamoun court also pointed out that the Basic Energy opinion relies on appellate decisions that pre-date the 2003 amendments to
section 15.003. 398 S.W.3d at 287 n.18.
     5
       We note that two other courts of appeals have entertained interlocutory appeals from venue rulings in multiple-plaintiff cases without
questioning or examining the propriety of appellate jurisdiction. See Crown Cent. LLC v. Anderson, 239 S.W.3d 385 (Tex. App.—Beaumont
2007, pet. denied); Siemens Corp. v. Bartek, No. 03-04-00613-CV, 2006 WL 1126219 (Tex. App.—Austin Apr. 28, 2006, no pet.) (mem. op.).



                                                                   –7–
       Venue—Dallas

       Union Pacific argues the trial court erred in denying its motion to transfer venue.

According to Union Pacific, venue is not proper in Dallas County because it does not maintain a

principal office here.

        Generally, the plaintiff chooses the venue of the case, and the plaintiff’s choice of venue

cannot be disturbed if the suit is initially filed in a county of proper venue. See Wilson v. Tex.

Parks & Wildlife Dep’t, 886 S.W.2d 259, 260–61 (Tex. 1994); KW Constr. v. Stephens & Sons

Concrete Contractors, Inc., 165 S.W.3d 874, 879 (Tex. App.—Texarkana 2005, pet. denied).

Once the defendant specifically challenges the plaintiff’s choice of venue, the plaintiff has the

burden to present prima facie proof that venue is proper in the county of suit. Wilson, 886

S.W.2d at 260–61; In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999); KW Constr., 165

S.W.3d at 879; Chiriboga v. State Farm Mut. Ins. Co., 96 S.W.3d 673, 678 (Tex. App.—Austin

2003, no pet.); see also TEX. R. CIV. P. 87(2)(a), (3)(a). Plaintiff satisfies its burden of presenting

prima face proof “when the venue facts are properly pleaded and an affidavit, and any duly

proved attachments to the affidavit, are filed fully and specifically setting forth the facts

supporting such pleading.” TEX. R. CIV. P. 87(3)(a). Generally, if the plaintiff fails to meet this

burden, the trial court must transfer the lawsuit to another county of proper venue. TEX. CIV.

PRAC. & REM. CODE ANN. § 15.063(1) (West 2002); Wilson, 886 S.W.2d at 260. In reviewing a

venue decision, an appellate court conducts an independent review of the entire record to

determine whether any probative evidence supports the trial court’s venue decision. TEX. CIV.

PRAC. & REM. CODE ANN. § 15.064(b) (West 2002); Wilson, 886 S.W.2d at 261.

       The venue provision upon which plaintiffs rely in the instant case is set forth in section

15.002(a)(3) of the civil practice and remedies code. This section provides that a lawsuit may be

brought “in the county of the defendant’s principal office in this state, if the defendant is not a

                                                 –8–
natural person.” TEX. CIV. PRAC. & REM. CODE ANN. § 15.002(a)(3) (West 2002). “Principal

office” is defined as “a principal office of a corporation . . . in which the decision makers for the

organization within this state conduct the daily affairs of the organization. The mere presence of

an agency or representative does not establish a principal office.” TEX. CIV. PRAC. & REM. CODE

ANN. § 15.001(a) (West 2002).

       The Texas Supreme Court has concluded that the phrase “a principal office” means that a

corporation may have more than one principal office in this state. In re Missouri Pacific Railroad

Co., 998 S.W.2d 212, 217 (Tex. 1999). To establish venue based upon a principal office,

plaintiffs must show: (1) the employees in the county where the lawsuit was filed are “decision

makers” for the company (hereinafter, “decision makers”) and (2) the employees in the county

where the lawsuit was filed have “substantially equal responsibility and authority” relative to

other company officials within the state (hereinafter, “substantial equality”) Id. at 217, 220. In so

concluding, the court rejected the argument that a principal office is any place where company

officials make decisions about the company’s business because “such a broad definition would

include agencies and representatives, which the statute expressly rejects.” Id. at 217. Rather,

“decision makers” who “conduct the daily affairs” are different kinds of officials than agents or

representatives. Id. And the term “daily affairs” does not mean relatively common, low-level

management decisions. Id.

       Plaintiffs’ petition asserts that defendant Smith has its principal office in Midland and

Union Pacific maintains a principal place of business in Dallas County. Plaintiffs assert that

venue is proper in Dallas County because at least one defendant (Union Pacific) maintains a

principal place of business in Dallas County. See TEX. CIV. PRAC. & REM. CODE ANN.

§§ 15.002(a)(3), 15.005.




                                                –9–
       Our review is de novo. Wilson, 886 S.W.2d at 261. The key to a straightforward

disposition concentrates on the second factor, the substantial equality prong. That is, did

plaintiffs present evidence making a prima facie case that Union Pacific, Dallas based employees

Cook and Anderson have substantially equal authority to the company executives in Harris

County. We conclude that plaintiffs failed to establish the second prong of the principal office

test—that the employees in the Dallas office possess “substantially equal responsibility and

authority” relative to other company officials within the state.

       We begin our review with the affidavit of Robert Rietveld that was filed by Union Pacific

in support of its motion to transfer venue. Plaintiffs did not object to this affidavit. Essentially,

the affidavit provides information about Union Pacific’s corporate structure and officers and

describes its principal office in Texas as the office in Harris County.

       Specifically, Rietveld states that he is the Southern Region Finance Director for Union

Pacific. Rietveld’s office is in Harris County, and he states that the Harris County office is the

southern region headquarters for Union Pacific.

       Rietveld explains that for purposes of allocating top level decision-making responsibility

across the twenty-three states in which it operates, Union Pacific is divided into three regions:

the southern, western, and northern regions. Each region covers multiple states, and the southern

region includes Kansas, Missouri, Oklahoma, Arkansas, Louisiana, and Texas. Rietveld states

that Union Pacific’s principal office in Texas is located in the southern region headquarters in

Harris County, Texas.

       Rietveld further explains that Union Pacific has numerous service units within the

southern region. The Fort Worth service unit oversees Union Pacific’s operations from Midland

to Dallas, and includes the crossing where the accident made the basis of this lawsuit occurred.




                                                –10–
       Rietveld identified the eight highest ranking Union Pacific employees in Texas. Six of

them office in Harris County: (1) the Regional Vice President Operations Southern Region, (2)

the Assistant Vice President Operations Southern Region, (3) the Chief Engineer-Maintenance of

Way Southern Region, (4) General Superintendent-Mechanical Maintenance, (5) General

Superintendent, and (6) the General Solicitor. The remaining two—another General

Superintendent and a Superintendent—office in Fort Worth and San Antonio. None of these

executives offices in Dallas County.

       The Southern Region Vice President, Greg Workman, is Union Pacific’s highest ranking

officer in the state of Texas, and he supervises the Assistant Vice President of Operations, the

General Superintendent, and other high level managers such as the Chief Engineer. Rietveld

stated that the responsibilities of the Southern Region Vice President include supervising: (a) the

movement from point A to point B of all Union Pacific’s operating trains in the Southern region;

(b) the safe operations of the railroad; (c) all of the train crews and employees who inspect and

service the locomotives and railcars; and (d) the transportation of all freight. In addition to

supervising the high level managers in Texas, the Southern Region Vice President, along with

the Assistant Vice President of Operations, is responsible for generating and executing the

transportation plan for all of Union Pacific’s railroad operations in Texas. All decisions

regarding the transportation plan are made out of the Southern region headquarters in Harris

County. The Southern Region Vice President is also responsible for supervising all of the

employees who work for the Transportation Department in Texas.

       Once Union Pacific challenged plaintiffs’ choice of venue by filing its motion to transfer

and Rietveld’s affidavit summarized above, plaintiffs had the burden to present a prima facie

case that venue is proper in Dallas. That is, plaintiffs had to establish both prongs under the

Missouri Pacific standard—decision makers and substantial equality. However, plaintiffs’ venue

                                              –11–
proof did not controvert the facts in the Rietveld affidavit or explain the relationship between the

Harris County office and executives and the employees in the Dallas office. Instead, plaintiffs’

venue proof focused exclusively on the first prong of the Missouri Pacific test—decision

makers.6 More specifically, their proof focused entirely on the employees in the Dallas office.

According to plaintiffs, Anderson and Cook are decision makers who office in Dallas.

Anderson’s deposition reflects that he is employed by Union Pacific as Superintendent of

intermodal operations7 and is responsible for the intermodal South region. He is the highest

ranking employee of the Southern region, and is responsible for the intermodal facilities in his

region. Anderson reports to Kate Betsworth, a vice president of the company who offices in

Omaha, Nebraska. Betsworth reports to Randy Blackburn, the vice president of transportation,

who in turn reports to Lance Fritz, the executive vice-president of transportation. Fritz reports to

the Chief Executive Officer of the company.

             Anderson testified that Harris County is the county in Texas where the daily affairs of the

transportation department are conducted. The intermodal division is part of the transportation

department. With regard to intermodal operations, the Harris County facilities are subordinate to

and controlled from Dallas. Anderson testified that he does not make all decisions with regard to

the intermodal movement of freight, but he does make the decisions within the terminals

themselves. Anderson explained that Union Pacific has contractors that do the work at the

intermodal terminals, and he does not select the contractors that do the work. He agreed that he is

the decision maker that conducts the daily affairs of the intermodal department of the southern

region, but some of the operational decisions concerning the daily affairs of the department are


     6
        Plaintiffs submitted excerpts from the depositions of Eric Anderson, Shawn Cook, and Kate Betsworth, along with job descriptions for
Cook and Anderson, company organizational charts, Union Pacific corporate filings, documents reflecting the volume of Union Pacific’s business
in Dallas, and Union Pacific’s discovery responses.
     7
         At oral argument, Union Pacific explained that intermodal operations” are operations involving the transfer of goods onto and off trains.



                                                                       –12–
made by his superiors in Omaha. When asked if he was the senior decision maker for Union

Pacific’s Intermodal department Southern facilities, Anderson stated, “operations within the

fence line of the terminal, yes.” (Emphasis added.) Anderson admitted that other than himself,

and his superiors in Omaha, no one else makes decisions concerning the daily affairs of the

intermodal facilities that operate in the Southern region. Anderson was asked, “Well, the buck

stops with you, doesn’t it?” Anderson replied, “Yes.” Anderson’s supervisor in Omaha

confirmed that Anderson has management responsibilities for the intermodal facilities in the

Southern region.

       Anderson manages a $50–$80 million annual budget. He explained that the lift volume

gauges the size of an operation for all of the intermodal terminals in the Union Pacific System. In

2012, the Southern division had the largest intermodal lift of the four intermodal divisions.

Company-wide, all intermodal operations (including those outside the Southern region)

accounted for $3,955 billion in annual revenue for 2012.

       Cook testified that he is the senior manager of automotive facilities, and offices in Dallas

County. Cook is responsible for automotive facilities in the Southern region. The Southern

region is the largest automotive region for Union Pacific. Automotive and intermodal operations

used to be part of the same division, but split at some point. Now, intermodal and automotive

operations report to different vice presidents in Omaha. Cook reports to Jack Jones, the Director

of Automotive Facilities and Planning in Omaha. Cook is not subordinate to or controlled by

anyone in Harris County. He does not control any employees.

       There are six automotive contractors that work for Union Pacific. Of these, four operate

in the facilities managed by Cook. Cook’s primary responsibility is to assure the quality of the

work of these contractors, who load and unload automobiles from trailers.




                                              –13–
       Cook has decision making authority within the facilities. In this regard, he determines

whether a particular contractor is providing the quality of service they are supposed to provide.

Cook stated that he can’t make all decisions inside the facilities, but he does make the day-to-day

decisions. Some decision making is made in Omaha. Cook agreed that since his office is in

Dallas, the principal Texas office for automotive facilities is in Dallas. Neither the intermodal

nor the automotive divisions of Union Pacific are subordinate to or report to another Texas

office. Instead, both report to Omaha, Nebraska.

       Plaintiffs rely on this evidence, as well as the formal job descriptions for Anderson and

Cook, to argue there is no portion of Union Pacific’s intermodal and automotive business that

has a principal office in Harris County; Union Pacific’s intermodal and automotive divisions are

based in Dallas County. Therefore, plaintiffs insist Union Pacific has a principal office in Dallas

County. Union Pacific responds that plaintiffs seek to view these two divisions of the company

in a vacuum, and the evidence does not establish that Cook and Anderson have decision making

authority of the magnitude required.

       In Missouri Pacific, the court held that “[a] party cannot prove a prima facie case that a

county has a principal office without evidence of the corporate structure and the authority of the

officers in the county of suit as compared with the remainder of the state.” Missouri Pacific, 998

S.W.2d at 220 (emphasis added). In that case, plaintiffs endeavored to show that the railroad had

a principal office in Jefferson County. The court observed, however, that plaintiffs focused

largely on the extent of operations in Jefferson County, but “did little to define the role of any of

the decision makers in Jefferson County relative to the rest of the company.” Id. In the absence

of evidence showing how the Jefferson County officials’ authority compared to others statewide,

there could be no meaningful determination whether Jefferson County was a principal office. Id.




                                               –14–
       Likewise, plaintiffs here did not demonstrate that Anderson’s and Cook’s authority is

substantially equal to others in the state. Instead, plaintiffs focused exclusively on the authority

of these individuals within their divisions, and within and limited to their facilities, i.e.,

operations within the fence line of the terminal(s).

       Although plaintiffs proved that the Dallas intermodal and automotive divisions do not

report to Harris County, this does not support a conclusion that Cook and Anderson have

comparable authority to the executives in Harris County. As a result, plaintiffs failed to establish

prima facie that Dallas County is a principal office for Union Pacific. See id.

Union Pacific’s Reply Evidence

       In the court below, Union Pacific filed a reply to plaintiffs’ response to the motion to

transfer venue, and attached evidence. Plaintiffs filed a “Claimants’ Joint Objection and Sur

Reply” to Union Pacific’s reply. Plaintiffs assert “Claimants object to UP’s reply evidence as an

impermissible attempt to rebut Claimants’ prima facie proof that venue is proper in Dallas

County.” This joint objection did not lodge specific objections to specific portions of Union

Pacific’s exhibits or move to strike the exhibits or any portions thereof.

       Plaintiffs now advance the same argument on appeal, claiming the trial court struck the

evidence and it is therefore not properly considered in our de novo review. We disagree.

       In Missouri Pacific, the court observed that “the plaintiff has the burden to present prima

facie proof . . . that venue is maintainable in the county of suit” and “the plaintiffs prima facie

proof is not subject to rebuttal, cross-examination, impeachment, or disproof.” Missouri Pacific,

998 S.W.2d at 216. Contrary to plaintiffs’ assertions, however, the record does not reflect that

the trial court ruled on the plaintiffs’ objection to the evidence, nor did it strike any evidence.

       The trial court’s statement in question is contained in the order denying the motion to

transfer venue. The court’s handwritten notation at the conclusion of the order states: “the court

                                                 –15–
further sustains claimants’ joint objection to the evidence attached to Union Pacific’s reply that

purports to contradict, rebut, impeach, or disprove Claimants’ prima facie case.” (Emphasis

added).This statement does correctly reflect the status of the law as enunciated in Missouri

Pacific and quoted above, that is, that a plaintiffs’ prima facie proof is not subject to rebuttal,

cross-examination, impeachment, or disproof. The court did not rule that the evidence violated

this legal principle and should be excluded, but only stated that it sustained the objection to

evidence that “purports” to violate a legal principle. We are consequently left to speculate

whether the court actually determined whether any of the reply evidence violated the legal

principle, and if so, what evidence. It is not our province to speculate. It is the trial court’s

responsibility to make proper legal rulings on the evidence. Under these circumstances, we

conclude the trial court’s statement is not a legal ruling.

       This Court was faced with a similar statement by a trial court in Stewart v. Sanmina

Texas, L.P., 156 S.W.3d 198, 206–07 (Tex. App.—Dallas 2005, no pet.). In that case, Stewart

argued that the summary judgment evidence raised fact issues as to his claims. Before addressing

Stewart’s arguments, this Court paused to review the trial court’s rulings on appellee’s objections

to Stewart’s summary judgment evidence. This Court stated that appellee made numerous

objections to Stewart’s evidence by objecting to individual paragraphs of affidavits and exhibits

and moved to strike the evidence. But the trial court did not address each objection; instead, the

trial court’s order granting in part the motion for summary judgment stated only that “to the

extent any summary judgment evidence is mere conclusion or based upon speculation it cannot

be considered for the purposes of the summary judgment record.” During oral argument,

appellees contended this quoted language was an implied ruling and constituted a striking of the

evidence. This Court ultimately rejected appellee’s argument that the statement by the trial court

was an implied ruling that amounted to a striking of Stewart’s evidence. Id.

                                                 –16–
       In effect, the trial court’s statement in this case only recites a principle of law and

completely fails to rule upon the admissibility of specific evidence. It therefore does not

constitute a legal ruling. The record does not indicate that plaintiffs sought a more specific ruling

or sought to have any specific evidence stricken. In the absence of a ruling by the trial court, we

conclude that                  the reply evidence is properly before us.

       We have already concluded that plaintiffs failed to present prima facie proof of Union

Pacific’s corporate structure and Cook’s and Anderson’s authority relative to the corporate

officers in the remainder of the state, without considering the reply evidence. The plaintiffs’

evidence and the reply evidence provides additional descriptive detail relative to Union Pacific’s

corporate structure. We observe the reply evidence also describes the corporate structure as

comprised of several Union Pacific executives in Harris County and that Anderson and Cook are

not executives, but instead are ranked as lower-level Band “D” and Band “C” employees. For

example, several layers of authority separate the highest ranking executive in Harris County from

the highest ranking employee in Dallas County.

       It was the plaintiffs’ burden to show Anderson and Cook had substantially equal

authority to the company executives in Harris County and elsewhere in the state, and plaintiffs

failed to meet this burden. As a result, plaintiffs failed to show that Dallas County is a principal

office for Union Pacific.

Venue—Midland

       If the plaintiff fails to discharge his burden of proof on venue, the burden shifts to the

defendant to prove that venue is proper in its chosen county. Missouri Pacific, 998 S.W.2d 212,

216. Here, the relevant venue facts supporting venue in Midland County are undisputed. It is

undisputed that Smith maintains its principal office in Midland County, and the accident made

the basis of this lawsuit occurred in Midland County. Our inquiry need go no further.

                                               –17–
          Section 15.002(a)(1) of the civil practices and remedies code provides that venue for an

action is proper in the county in which “all or a substantial part of the events or omissions giving

rise to the claim occurred.” TEX. CIV. PRAC. & REM. CODE ANN. § 15.002(a)(1) (West 2002).

Section 15.002(a)(3) provides that venue is proper is the county of the defendant’s principal

place of business if the defendant is not a natural person. TEX. CIV. PRAC. & REM. CODE ANN.

§ 15.002(a)(3). Pursuant to these general venue provisions, the undisputed facts show that venue

is proper in Midland County as to Smith.

       Because venue is proper in Midland as to Smith, it is also proper as to Union Pacific.

Section 15.005 provides that where there are multiple defendants, and venue is proper as to at

least one defendant, venue is then proper as to all defendants in all claims arising out of the same

transaction, occurrence, or series of transactions or occurrences. See TEX. CIV. PRAC. & REM.

CODE ANN. § 15.005 (West 2002); see also In re Reynolds, 369 S.W.3d 638, 653 (Tex. App.—

Tyler 2012, no pet.). Thus, upon remand, the trial court must transfer the case to Midland

County.

                                         CONCLUSION

       Union Pacific’s issue is sustained. We reverse the trial court’s order and remand the case

for the trial court to enter an order transferring the case to Midland County.




                                                    /Kerry P. FitzGerald/
131224F.P05                                         KERRY P. FITZGERALD
                                                    JUSTICE




                                               –18–
                                     S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

UNION PACIFIC RAILROAD                           On Appeal from the 116th Judicial District
COMPANY, Appellant                               Court, Dallas County, Texas
                                                 Trial Court Cause No. DC-12-15204.
No. 05-13-01224-CV       V.                      Opinion delivered by Justice FitzGerald.
                                                 Justices Lang and Myers participating.
CATHERINE STOUFFER,
INDIVIDUALLY AND ON BEHALF OF
THE ESTATE OF GARY LEE STOUFFER,
JR. AND AS NEXT FRIEND OF
SHANNON STOUFFER AND SHANE
STOUFFER, ET AL., Appellees

        In accordance with this Court’s opinion of this date, the trial court’s order is
REVERSED and this cause is REMANDED to the trial court for the entry of an order
transferring the case to Midland County.
        It is ORDERED that appellant UNION PACIFIC RAILROAD COMPANY recover its
costs of this appeal from appellees CATHERINE STOUFFER, INDIVIDUALLY AND ON
BEHALF OF THE ESTATE OF GARY LEE STOUFFER, JR. AND AS NEXT FRIEND OF
SHANNON STOUFFER AND SHANE STOUFFER, ET AL.


Judgment entered December 19, 2013




                                               /Kerry P. FitzGerald/
                                               KERRY P. FITZGERALD
                                               JUSTICE



                                          –19–
