Court of Appeals Rejects Venue Arguments in Claimant’s Appeal
The Dallas Court of Appeals tackled a thorny venue issue in a workers’ compensation suit for judicial review filed by a former lineman for the Dallas Cowboys. The decision Great Divide Ins. Co. v. Fortenberry. (Tex. Ct. App.—Dallas, No. 05-19-01541-CV) July 26, 2021, concluded that neither the claimant nor the carrier had adequately established where the lawsuit should have been filed.
After graduating from Texas Tech University, claimant entered into an NFL Player Contract with the Dallas Cowboys to become an offensive lineman for the football team. On August 2, 2015, Claimant sustained a work-related injury to his knee while practicing at the Dallas Cowboys’ training camp in Oxnard, California. Claimant filed a claim for workers’ compensation benefits. That claim was denied, and Claimant requested dispute resolution. An ALJ determined that claimant did not have compensable disability. The appeals panel adopted the ALJ’s decision. Claimant filed suit for judicial review of the DWC’s decision in Dallas County, alleging, in part, that he “was a resident of Dallas County, Texas at the time of his injury,” and that “[u]nder § 410.252 Texas Labor Code, Dallas County is the proper venue for this case.”
Great Divide filed a motion to transfer venue, objecting to venue in Dallas County and asserting Claimant was a resident of Tylertown, Mississippi, and not Dallas County, at the time of his injury; that Great Divide does not have an office, agent or representative in Dallas County; and that venue is proper in Travis County because Great Divide provides workers’ compensation insurance coverage in Texas and has a representative in Austin, Texas, that acts as its agent before the DWC.
In response to Great Divide’s motion to transfer venue, Claimant presented an affidavit stating, “[a]t the time of my injury, I lived and resided at 950 West Walnut Hill Lane, Irving, TX 75038 in Dallas County, Texas.” Great Divide established that this was an address for a Marriot Residence Inn and that the law firm of Burns Anderson Jury and Brenner, LLP, located in Travis County, is the carrier’s Austin representative and that all correspondence and filings with the DWC regarding Claimant’s workers’ compensation claim were filed by the law firm. Great Divide proved that the Cowboys “provided players, who did not have a permanent residence in Dallas, with hotel accommodations in August of 2015”; “Claimant was among the players who was provided this accommodation”; and the Dallas Cowboys “paid for []Claimant to stay at a hotel on a temporary basis.”
The court held that claimant had failed to present prima facie proof to satisfy the residency requirements for venue purposes. Those requirements are (1) a fixed place of abode within the possession of the party, (2) occupied or intended to be occupied consistently over a substantial period of time, and (3) which is permanent rather than temporary. Snyder v. Pitts, 241 S.W.2d 136, 140 (Tex. 1951).
Fortenberry further asserts Dallas County was nevertheless a county of proper venue because Great Divide had a principal office in Irving, Texas. We note that where there is no county of proper venue under section 410.252(b) of the labor code, venue is governed by the general venue rule contained in section 15.002(a) of the Texas Civil Practice and Remedies Code. See Rayas v. Tex. Mut. Ins. Co., No. 03- 11-00310-CV, 2013 WL 150304, at * 4 (Tex. App.—Austin Jan. 11, 2013, no pet.) (mem. op.). Under that general rule, a lawsuit may be brought “in the county of the defendant’s principal office of this state, if the defendant is not a natural person.” CIV. PRAC. & REM. § 15.002(a)(3) (emphasis added). To establish a principal office in a particular county, there must be prima facie proof that the decision makers for the organization within the state conduct the daily affairs of the organization in the county. Id. § 15.001(a). A mere agent or representative is not a decision maker nor is a principal office one where only decisions typical of an agency or representative are made. Mo. Pac., 998 S.W.2d at 217, 220. Accordingly, to establish venue based on a principal office, Fortenberry must show the employees in the county where the lawsuit was filed are decision makers for the company and have substantially equal responsibility and authority relative to other company officials within the state. Ford Motor, 473 S.W.3d at 928–29. Decision makers who conduct the daily affairs are different kinds of officials than agents or representatives, and daily affairs does not mean relatively common, low-level management decisions. Mo. Pac., 998 S.W.2d at 217.
Fortenberry contends a copy of a letter from a claims examiner at Berkley Specialty Underwriting Managers to Fortenberry, notifying Fortenberry that Great Divide disputed his claim and refused to pay benefits establishes Great Divide has a principal office in Dallas County because failure to provide claims services through a resident representative with full power to act for the insurance carrier is an administrative violation, see LAB. §406.010(a),5 and a sub-script on the letter contains an address in Irving, Texas. This letter, standing alone, does not establish Great Divide has a principal office in Dallas County. At best, it may suggest Great Divide has an agent or representative in Dallas County, which is not sufficient to establish a principal office. CIV. PRAC. & REM. § 15.001(a).
Next, the court considered whether there was probative evidence that venue was proper in Travis County, the county to which Great Divide sought transfer. The carrier relied on the affidavit of one of its attorney stating her law firm, located in Travis County, serves as Great Divide’s Austin representative to the DWC. The court rejected the carrier’s argument.
As stated supra, in order to prove the existence of a principal office, a party must show the employees in the chosen county are decision makers for the company and have substantially equal responsibility and authority relative to other company officials within the state. Ford Motor, 473 S.W.3d at 928–29. At best, Great Divide’s evidence establishes the law firm is its agent for notice and filing with respect to the DWC and functions similarly to a registered agent for service of process. It does not attempt to show the principal decision makers of the company are located there or to establish their role for the company is qualitatively different from that of any other agents, including, for example, its agent in Dallas. See e.g., id. at 931 (concluding registered office is nothing more than location entity has designated where it can be served with legal process and does not show principal decision makers of entity conducted its daily affairs from that location). We conclude there is no evidence in the record to show Great Divide has a principal office in Travis County.
Because neither party established venue, the court reversed the trial court’s judgment and remanded the case to the trial court to conduct further proceedings on the issue of venue.
FOLIO
