CITY OF IRVING v. LUTTRELL

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Docket Number

No. 7132.

Attorney(S)

McCulloch, Ray, Rembert, Luna Trotti, Dallas, for appellant. Lefkowitz, Green, Ginsberg Eades, Dallas, for appellees.

Judges

DENTON, Chief Justice.

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Smart Summary

Factual and Procedural Background

This is a condemnation suit instituted by appellant City of Irving seeking to condemn a strip of appellees' (William H. Luttrell et al.) land for a drainage and utility easement. The property is in Dallas County. Appellees filed an application under Rule 257, V.A.T.R., alleging such prejudice and a combination against them in Dallas County that they could not obtain a fair trial; the trial court sustained the application and transferred the case to Rockwall County. Appellant appealed. Appellees moved to dismiss the appeal, contending the trial court's order was not appealable.

Legal Issues Presented

Whether the trial court's order sustaining an application for change of venue under Rule 257 is an appealable interlocutory order.
Whether the trial court erred in sustaining appellees' application for change of venue when the record shows only the affidavits and no hearing or other evidence.
Whether the opposing affidavit filed by appellant was a sufficient attack under Rule 258 to require a trial before the judge on the issue.

Arguments of the Parties

Appellees' Arguments

They argued the trial court's order sustaining the change of venue was not an appealable interlocutory order and moved to dismiss the appeal, relying on Byer v. Dallas Power Light Co., 290 S.W.2d 948.
They maintained the opposing affidavit filed by appellant made no proper attack on their application (i.e., was insufficient under Rule 258).

Appellant's Arguments

Appellant argued the order sustaining the change of venue was appealable because the trial court's discretion in such matters is subject to review and is analogous to a ruling on a plea of privilege (Rule 385 provides appeal from such orders).
Appellant contended its opposing affidavit sufficiently attacked the application by denying under oath the truth of appellees' allegations and asserting the unlikelihood that prospective jurors in Dallas County would be acquainted with the parties or case.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Byer v. Dallas Power Light Co., Tex.Civ.App., 290 S.W.2d 948 (no writ history)	Procedural question regarding appealability of venue ruling (cited by appellees to support dismissal).	The court distinguished Byer because in that case the trial court overruled the application to change venue; the distinction made Byer inapplicable to the present situation where the application was sustained.
Wolnitzek v. Lewis, Tex.Civ.App., 183 S.W. 819 (error refused)	Burden of proof rests on applicant who seeks change of venue once issue is formed.	Used to support the proposition that appellees bore the burden to prove facts supporting the motion for change of venue.
Bennett v. Jackson, 172 S.W.2d 395 (refused w.o.m.)	Burden of proof on movant for change of venue once issue is joined.	Reinforced the rule that appellees had the burden to prove the allegations supporting the change of venue.
Galveston H. S.A. Ry. Co. v. Nicholson, Tex.Civ.App., 57 S.W. 693 (error refused)	Affidavits are pleadings raising an issue of fact and are not evidence.	Applied to hold that the trial court could not treat the affidavits alone as evidence; because affidavits are merely pleadings, a hearing with evidence was required.

Court's Reasoning and Analysis

The court first addressed appealability: venue was properly laid in Dallas County under Article 3264, Subdiv. 1, unless Rules 257-261 applied; the court held the order sustaining a Rule 257 application is appealable because the trial court's discretion is reviewable and is analogous to sustaining a plea of privilege (appealable under Rule 385). Thus appellees' motion to dismiss was overruled.

The court then examined the affidavits under Rules 257 and 258. It found appellees' application complied with Rule 257 (supported by three credible affiants). Rule 258 mandates granting the application unless attacked; appellant timely filed an opposing affidavit which denied the truth of the allegations and asserted that many Dallas County residents would not know the parties, which the court deemed a sufficient attack to form an issue for the trial judge.

Once the issue was thus formed, the burden shifted to appellees to prove the facts alleged (citing Wolnitzek and Bennett). Rule 258's language that the issue "shall be tried by the judge" implies a hearing with presentation of evidence. The record contained no statement of facts or findings of fact and conclusion of law, and the trial court's order and record indicate the court sustained the application after considering the affidavits only and without hearing evidence. Because affidavits are pleadings and not evidence (citing Galveston), appellees failed to meet their burden. Consequently, the trial court erred in sustaining the application in the absence of any evidence to support it.

Holding and Implications

Holding: REVERSED AND REMANDED.

Implications: The trial court's order sustaining appellees' application for change of venue and transferring the case to Rockwall County was reversed and the cause remanded for further proceedings, including the fact-trying hearing required by Rule 258. No broader precedent beyond the application of the cited authorities to these facts is announced in the opinion.

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CITY OF IRVING v. William H. LUTTRELL et al.

DENTON, Chief Justice.

This suit was instituted by appellant, City of Irving, and is in the nature of a condemnation suit. The city is seeking to condemn a strip of land across appellees' property for a drainage and utility easement. It is undisputed that appellees' property is located in Dallas County. This appeal is from an order sustaining appellees' motion for a change of venue based on their affidavit that too great prejudice existed in Dallas County to enable them to obtain a fair trial there, and that a combination against them instigated by influential persons existed in Dallas County. The order sustaining this motion transferred the case to Rockwall County, an adjoining county.

Appellees have filed a motion to dismiss this appeal on the ground that the trial court's order sustaining the motion is not such an interlocutory order from which an appeal is allowed by law. Appellees' application for change of venue was made under the provisions of Rule 257, Vernon's Ann.Texas Rules. In support of this motion appellees cite and rely on Byer v. Dallas Power Light Co., Tex.Civ.App., 290 S.W.2d 948 (no writ history). That case involved the identical procedural question as presented here, however the trial court in the Byer case overruled the application to change venue. Such a distinction is very material and in our opinion this distinction renders the rule in the Byer case inapplicable in the instant case.

Venue was properly laid in Dallas County under Article 3264, Subdivision 1, Vernon's Ann.Civ.St., unless Rules 257-261 V.A.T.R. were properly pleaded and applied. The trial court's order in sustaining this application is appealable, as the trial court's discretion in taking such action is subject to review. In addition, under the circumstances here we see no distinction in sustaining a motion for change of venue under Rule 257 and sustaining a plea of privilege. Rule 385 V.A.T.R. specifically provides for an appeal from an order sustaining a plea of privilege. For the reasons stated appellees' motion to dismiss is overruled.

In considering this appeal, the question to be determined is whether or not the trial court erred in sustaining the application to change venue. This requires an examination of the affidavits provided for under Rules 257 and 258. Appellees' application for a change of venue was in proper form and supported by affidavits of three other credible persons as required by Rule 257. Rule 258 directs the trial court to grant such application unless it is attacked by the opposing party. Appellant timely filed an opposing affidavit. We are therefore called upon to determine the sufficiency of this opposing affidavit. Appellees contend the opposing affidavit made no attack upon the application. We are unable to agree. Appellant duly contested the application when it denied under oath the truth of the allegations therein. It stated: '* * * it is not true * * *' that appellees could not get a fair trial in Dallas County, and it further stated that of approximately one million residents in Dallas County, affiants knew many people in that county who did not know any of the parties, and it was unlikely any prospective juror in that county would be acquainted with the parties or the case. We think this constituted a sufficient attack to form an issue which must be tried by the trial judge as required by Rule 258.

Upon the issue being thus formed, the burden was upon the appellees to prove the facts upon which the motion for change of venue was based. Wolnitzek v. Lewis, Tex.Civ.App., 183 S.W. 819 (error refused); Bennett v. Jackson, Tex.Civ.App., 172 S.W.2d 395 (refused w.o.m.). Rule 258 provides: '* * * the issue thus formed shall be tried by the judge * * *.' This language clearly implies that there shall be a hearing before the court for the purpose of presenting evidence in support of the opposing affidavits. The record is before us without a statement of facts or findings of fact and conclusions of law. It is apparent the trial court sustained the application for charge of venue without hearing any evidence, but did so after considering the respective affidavits only. This conclusion is borne out not only by the absence of a statement of facts or findings and conclusions, but also from the language of the court's order sustaining the application. The affidavits themselves cannot be considered as evidence but merely pleadings raising an issue of fact. Galveston H. S.A. Ry. Co. v. Nicholson, Tex.Civ.App., 57 S.W. 693 (error refused). It is thus apparent appellees failed to sustain their burden of proof. Therefore the trial court erred in sustaining the application in the absence of any evidence to support the same.

In view of the fact the case was not fully developed, the judgment of the trial court will be reversed and the cause remanded.

Reversed and remanded.