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At a Glance:
Brookshire Grocery Co. v. Smith
February 20, 2003
99 S.W.3d 819
Published Opinion

Brookshire Grocery Co. v. Smith

Court of Appeals of Texas,




Robert Elton SMITH, Appellee.

No. 09–02–226 CV.


Submitted Jan. 8, 2003.


Decided Feb. 20, 2003.

Attorneys & Firms

*820 Brian J. Brandstetter, Gwinn & Roby, Fort Worth, for appellant.

John Werner, Reaud, Morgan & Quinn, Inc., Beaumont, for appellee.




Robert Elton Smith filed suit in 1994 against appellant, Brookshire Grocery Company, his nonsubscriber employer, for injuries he sustained on the job in 1992. Finding Brookshire Grocery negligent, a jury returned a verdict in Smith’s favor. Brookshire Grocery brings three issues on appeal: venue, an evidentiary ruling, and the calculation of prejudgment interest. As we conclude none of the issues presented requires reversal, we affirm the trial court’s judgment.


Smith initially filed suit against Brookshire Grocery Company in Jefferson County, Texas. Brookshire Grocery filed a motion to transfer venue. Before any hearing was held on the venue motion, Smith nonsuited the claim. He then filed suit in Hardin County against Brookshire Grocery Company and Brookshire Brothers, Inc. (“Brookshire, Inc.”) Although Brookshire Grocery filed a motion to *821 transfer venue in the Hardin County suit, Brookshire, Inc. did not challenge venue and filed only an answer. Shortly thereafter, Smith nonsuited Brookshire, Inc. The trial court denied Brookshire Grocery’s venue motion.

Appellant failed to include a reporter’s record of the hearing on the motion to transfer venue. Smith maintains this failure requires our rejection of appellant’s venue issue. The venue hearing was conducted in November 1994, but the trial was not held and the judgment not signed until April 2002. On June 5, 2002, Brookshire Grocery requested the venue hearing be included in the reporter’s record on appeal. In a letter dated July 26, 2002, the court reporter explained she no longer had notes of the 1994 venue hearing. By statute, the court reporter is required to preserve the notes of the hearing for “three years from the date on which they were taken[.]” Ganesan v. Vallabhaneni, 96 S.W.3d 345, 348–50 (Tex.App.-Austin 2002, pet. denied).

We need not decide venue on this preservation issue, however. Brookshire Grocery has asserted on appeal, supported by its attorney’s affidavit, that no evidence was offered or admitted at the venue hearing. Appellant’s assertion is not disputed by Smith, and we take as true appellant’s uncontradicted statement of fact. See TEX.R.APP. P. 38.1(f). The clerk’s record is complete. While we emphasize the importance of a complete record of the trial court proceedings and arguments presented at the venue hearing, we will address the merits of the venue issue in this case on the record presented here.

The 1985 venue statute applies in this case. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3246–3251. When suit was filed in 1994, section 15.061, quoted below, set out the following rule regarding venue over multiple defendants:

When two or more parties are joined as defendants in the same action or two or more claims or causes of action are properly joined in one action and the court has venue of an action or claim against any one defendant, the court also has venue of all claims or actions against all defendants unless one or more of the claims or causes of action is governed by one of the provisions of Subchapter B [mandatory venue provisions] requiring transfer of the claim or cause of action, on proper objection, to the mandatory county.1

The current statute, amended in 1995, provides that in a suit in which the plaintiff has established proper venue against a defendant, the court also has venue of all the defendants in all claims or actions arising out of the same transaction, occurrences, or series of transactions or occurrences. See TEX. CIV. PRAC. & REM.CODE ANN. § 15.0641 (Vernon 2002). The 1985 statute, which applies in this case, does not contain that provision.

We note that appellant does not raise the procedural issue set out in GeoChem Tech Corp., 962 S.W.2d at 543. It is possible the procedural posture at the time of the nonsuit here was insufficient to establish venue in the county to which appellant then sought transfer; but we do not address the GeoChem issue as it has not been asserted in this case.

Smith made Hardin County his venue choice. Because Brookshire, Inc. did not object to venue in Hardin County by filing a transfer motion, the Hardin County trial court had venue over Brookshire, Inc. See 15.064 were added. We find the language of the 1985 statute is clear.

Brookshire Grocery further maintains Smith failed to put on a prima facie case that Brookshire, Inc. was properly joined to justify appellant’s “tag along” venue. From the record before us, we cannot determine that Brookshire, Inc. was joined solely to fix venue. Prior to dismissing Brookshire, Inc. from the suit, Smith’s pleadings alleged negligence on the part of both appellant and Brookshire, Inc. We note Brookshire Grocery pleaded in its amended answer that any injury sustained by Smith was caused by or, in effect, aggravated by “subsequently occurring incidents and conditions.” It is undisputed that Smith worked for Brookshire, Inc. in Hardin County after the injury at appellant’s store in Smith County. Appellant filed no special exceptions requesting Smith to plead more particularly how *823 Brookshire, Inc. was negligent and caused injury to Smith.

Appellant further argues that, in order to establish venue in Hardin County, Smith must establish he acted in good faith in joining Brookshire, Inc., the resident defendant. Appellant did not object to the joinder of Brookshire, Inc. and never sought a severance; appellant waived any claim regarding improper joinder. See Rosales v. H.E. Butt Grocery Co., 905 S.W.2d 745, 751 (Tex.App.-San Antonio 1995, writ denied). We are unable to determine from this record there was any bad faith on the part of Smith in filing suit against Brookshire, Inc. and appellant in Hardin County.

We conclude the trial court did not err in maintaining venue in Hardin County. Issue one is overruled.


In point of error two, Brookshire Grocery contends the trial court erred in excluding evidence that Smith falsified an answer on his job application by failing to disclose his previous back surgery. A question on the employment application asked whether Smith had ever been seriously injured on the job. Smith answered “no.” In the bill of exception testimony, Smith indicated he gave the “no” answer because at the time he did not consider his injury to be serious. Upon reflection, he agreed the correct answer would have been “yes.” The evidence arguably was admissible for the purpose of impeachment of Smith’s credibility.

Even though the evidence was admissible, Brookshire Grocery must still show the exclusion of the evidence was harmful. See Id.

Here, the evidence of the answer on the job application is not controlling on any material issue in the case. The answer does not address directly the elements of Brookshire Grocery’s negligence. Whether Brookshire Grocery knew of his prior back injury was not an issue given the circumstances of the alleged negligence in this case: improperly stacked products fell on Smith and caused his back injury. Smith’s own negligence was not an issue in this case against a nonsubscriber. See TEX.R.APP. P. 44.1(a). Issue two is overruled.


Brookshire Grocery also challenges the prejudgment interest award set out in the judgment. A trial court’s prejudgment interest award is reviewed under an abuse of discretion standard. See J.C. Penney *824 Life Ins. Co. v. Heinrich, 32 S.W.3d 280, 289 (Tex.App.-San Antonio 2000, pet. denied). Appellant argues the trial court erred by using an incorrect date from which to begin its calculations, and further erred by awarding prejudgment interest on future damages.

The Texas Finance Code provides that judgments in cases involving wrongful death, personal injury, and property damages are to include prejudgment interest. See Robinson v. Brice, 894 S.W.2d 525, 528 (Tex.App.-Austin 1995, writ denied).

Brookshire Grocery argues prejudgment interest should be calculated from May 20, 1993, the date of a letter sent from Smith’s lawyer to appellant. The letter notified Brookshire Grocery that the attorney had been retained to represent Smith in connection with claims regarding injuries Smith sustained on or about August 4, 1992.

Smith argues the trial court’s determination of a November 1992 starting date is correct. In evidence are two letters Smith sent to Eddie Crawford, appellant’s agent on the medical coverage matters. An October 1992 letter requested reimbursement for expenses relating to car mileage and to treatment for Smith’s injury. A November 1992 letter was, in effect, Smith’s progress report to Crawford concerning medical procedures contemplated by Smith’s doctor and concerning Smith’s willingness to see another doctor. Both the October and November 1992 letters were before the trial judge when he made the determination to use the November 1992 date as the starting point for calculating prejudgment interest.

Courts have considered various writings in determining what constitutes written notice of a claim. In Johnson & Higgins, 962 S.W.2d at 531. The Supreme Court held the agreement constituted written notice of a claim and triggered accrual of prejudgment interest. Id. We conclude that, taken together, the letters written by Smith to Crawford constitute written notice of a claim: they ask for reimbursement of expenses relating to treatment and they state procedures suggested by the doctor. We find the trial court did not abuse its discretion in calculating prejudgment interest from the November 1992 date.

Brookshire Grocery also contends article 5069–1.05 § 6 and its successor statute are unconstitutional, and that the trial court erred in awarding prejudgment interest on future damages. These constitutional arguments were rejected by the Supreme Court in Id. at 324–327. At the hearing on the motion to enter judgment, appellant’s attorney acknowledged the issue was settled. He argues for a change in the law. But an intermediate appellate court must follow Supreme Court precedent. Issue three is overruled.

The judgment of the trial court is affirmed.




See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3249, repealed by Act of May 8, 1995, 74th Leg., R.S., ch.138, § 10, 1995 Tex. Gen. Laws 981 (current version at 15.0641 (Vernon 2002).)

End of Document