Opinion
No. 10-09-00222-CV
Opinion delivered and filed August 26, 2009. DO NOT PUBLISH.
Appealed from the 380th District Court, Collin County, Texas, Trial Court No. 380-01387-2009. Rehearing denied.
Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS (Chief Justice Gray concurring with note).
(Chief Justice Gray concurs in the judgment which dismissed the appeal for want of jurisdiction only and does not join either the opinion or the opinion on rehearing. A separate opinion will not issue. He notes, however, that the most basic jurisdictional problem in this proceeding is that it is an effort to appeal an order of a Collin County district court. Collin County is not in this Court's jurisdiction. TEX. GOV'T CODE ANN. § 22.201(k) (Vernon Supp. 2008).)
OPINION ON REHEARING
Appellant Lowell Merritt complains on rehearing that this Court improperly dismissed his venue appeal because it is not an "interlocutory" appeal. Merritt refers to the following quotation from In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (orig. proceeding), to support his position: "The only remedy afforded by the Legislature when a party loses a venue hearing is to proceed with trial in the transferee county and appeal any judgment from that court on the basis of alleged error in the venue ruling." Id. at 261. According to Merritt, because he may appeal " any judgment" from the transferee court, he may in this instance appeal the Collin County district court's order denying his motion to return his lawsuit to the McLennan County district court. We disagree. Under section 15.064 of the Civil Practice and Remedies Code, Merritt cannot challenge the McLennan County district court's venue ruling by appeal until the Collin County district court has rendered a final judgment on the merits of Merritt's lawsuit against the appellee. See TEX. CIV. PRAC. REM. CODE ANN. § 15.064 (Vernon 2002). In the words of the Supreme Court, "[T]he law requires a party to wait until a final judgment is entered in a case to appeal an erroneous venue ruling." Am. Home Products Corp. v. Clark, 38 S.W.3d 92, 95 (Tex. 2000). And looking more closely at the case cited by Merritt, a party who "loses a venue hearing" must first " proceed with trial in the transferee county" on the merits of the lawsuit, and then "appeal any judgment" rendered following the trial on the merits. See Team Rocket, 256 S.W.3d at 261 (emphasis added). Accordingly, Merritt cannot challenge the McLennan County district court's venue ruling by appeal until after the trial on the merits is conducted by the Collin County district court and the latter court renders a final judgment on the merits. Nevertheless, Merritt argues that this delay renders Rule of Appellate Procedure 44.4 "moot." Again, we disagree. Rule 44.4 provides:
(a) Generally. A court of appeals must not affirm or reverse a judgment or dismiss an appeal if:
(1) the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals; and
(2) the trial court can correct its action or failure to act.
(b) Court of Appeals Direction if Error Remediable. If the circumstances described in (a) exist, the court of appeals must direct the trial court to correct the error. The court of appeals will then proceed as if the erroneous action or failure to act had not occurred.TEX. R. APP. P. 44.4. First, Rule 44.4 does not apply here because neither the McLennan County district court nor the Collin County district court has acted or failed or refused to act in some manner which prevents Merritt from presenting his appeal. See id. 44.4(a)(1). Rather, section 15.064(a) of the Civil Practice and Remedies Codes prevents Merritt from presenting his appeal at this time. More fundamentally, when a procedural rule like Rule 44.4 conflicts with a statute, the statute controls. See Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000) (per curiam); In re Chu, 134 S.W.3d 459, 466 (Tex. App.-Waco 2004, orig. proceeding). Therefore, even if Rule 44.4 applied, which it does not, the provisions of section 15.064 would control and would prohibit any appeal on the venue issue until after a final judgment on the merits has been rendered by the Collin County district court. Accordingly, Merritt's motion for rehearing is denied.