Opinion issued May 11, 2021

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 20
- 00662
- CV

——————————— SA N JACINTO RIVER AUTHORITY , Appella nt V. RI CHARD GUAJARDO, JOHN TAYLOR, ROBERT LOWRY, AND

FOUNTAIN MATURI , Appell e e s

On App eal from Co unty Civil C our t at Law No . 1

Harris County, Texas Trial Court Ca se No. 112343

MEMORANDUM OPINION This ca se is an interlocu tory appeal of t he trial c ourt ’ s deni al of appellant San Jacinto River Author ity ’ s motion to dismiss or transfer imprope rly joined plain tiffs pursuant to Texas Civil Practice and Remedies Code section 15.003 , which requires each plaintif

f i n a multi

- plaintiff lawsuit to “ independen tly establish proper venue . ”2

T EX
. C IV
. P RAC
. & R EM
. C ODE § 15.003 (a)

. Because we conclu de that the trial court erred, we reverse and remand. Background The River Authority is a conservation and recla mation distri ct and subdivision
of the State of Texas, charged with deve loping, conserving , and pr otecting water

resources in the San Ja cinto Ri ver bas in. Included among it s various duties, th e River Authority oversees releasing water from the Lake Conroe Dam in to the West Fork
of the San Jacinto River

. In the aftermath of Hurricane Harvey, whic h ma de landfall along the Texas Gulf Coast in August 201 7, t he River Auth ority determined that a rel ease of water from the Lake Conroe Dam was necessary to adjust f or the dr amatic
flood ing caused by the storm. The release of the water fl ooded downs trea m properties

. In August 2019, appellees John Taylor, Rob ert Low ry, and Fountain Maturi, along with thirteen other individuals , filed suit against the River Authority in Har ris
Co un ty Civil Co urt at La w No. 1 in a ca se sty led Melvin G rothe, et a l. v. San J a cinto
River Aut ho rity (the Grothe case)

. Ap p ellee Richar d Guaj a rdo and two other individuals filed a s eparate suit , styled William Collins, et a l. v. San Jacinto River Authorit y , i n the same court ( the Collins case ). Both p e titions asserted a c au se of action for inverse condemnation and unconsti tutional taking , alleg i ng that the River Authority was liable f

or damages to real property caused wh en it release d wa ter from3

the La ke Conro e Dam . In their petit ions, the majority of the Grothe and Collins plaintiffs identified the ir aff ected properties as being in Harris Count y . The fou r
ap p ellees here

— Taylor, Lowry, Maturi, an d Guajardo

— pro vided addresses for properties located in Mo nt gomery County. The plaintiffs in both the Grothe and Collins cases further alleged that venue was proper in Harris County pursuant to Civi l Prac t ice and Remedies Code se ctions 15.002 (the general

- v enue provision) and
15.0 11 (a mandatory venue provision f or suits involving land)

. The River Authority filed answers in both the G rothe and Collins cases. On June 9, 2020, the trial court consolida ted th e G rothe and Collins cases into the underlying lawsuit, which rai s ed the same issues

. On August 11, 2020, the R iver Authorit y filed a “ Motion to Dismiss/Transfer Imp roperly Joined P laintiffs. ” The motion, filed pursu ant to Civil Practice &
Remedies Code s e ction 15.003, a rgued that Taylor, Lowry, Maturi, and Guajardo (the Montgomery County plaintiffs ) had been imp ro perly joined with the other plaintiffs whose pro perty was in Harris County. The River Authority cited Civil
Prac tice and Remedies Code sec tion 1 5 .011, providing that venue was mandatory

w here all or part of the real property was located. T hus, th e Rive r Au thority argued, the Montgomery County p laintiffs c ould not establish , independently of the other plaintiffs in the co nsolidated cases, tha t venu e was proper in Harris County. The River Author ity requested th e trial court to trans fer the claims of t he Mont gomery4

County plaintiffs or to dismiss them because their properties are in M ont gomery Co unty

. The Montgomery County plain tiff s res ponded t o the m otion , pointing out that the River Authority had answ ered the ori ginal Grothe and Collins pet it ions and participated in li tigation prior to the consolidation of the cases . They asserted that
the Motion to Dismiss/Transfer Improperly Joi ned Plaintiff s was u nti mely because it had no t been filed before a ny other pleading as req uired by Rule of Civil P r ocedure 86(1). A t the hearing on the motion, the Montgomery County plain tiffs furth er argued that the River Authority had “ judicially admitte d ” the e lemen ts of s ection 15.003(a), which provides a limited exception to the general rule that all plaintiffs

mu st independently establish proper venue. The trial court deni ed the Motion to Dismiss/Transfer Improperly Joined
Plaintiffs without explaining its reason ing or making findings. This interlocutory appeal followed. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 15.003 (c ) (permitting interlocutory appeal from ruling under section 15.003)

. Analysis In it s sole issue on appeal, the River Au thority argues that the trial cour t e rre d in denying its Motion to Dismiss/Transfer Imp roperly Joined Plaintiffs filed pursuant to Civ il Practice and Remedies Code section 15. 003.5

Section 15 .003 provides: In a suit in which there is more than one plaintiff, whether the plaintiffs are incl uded b y joinder, by inte rvention, because the lawsuit was begun by more than one plaintiff, or otherw is e, each plaintiff must, independently of every other plaintiff, estab lish proper venue. If a plaintiff cannot independently establish proper venue, that plaint i ff ’ s part of the suit, including all of that plaintiff ’ s claims and causes of action, must be tr ansferred to a county of proper venue or dismissed, as is appropriate , unless that plaintiff, independently of every other plaintiff, establishes that: (1) jo i nder of that plai ntiff or intervention in the suit by that plaintiff is proper under the Texas R ules 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) th ere is an essential need to have that plaintiff ’ s claim tried in the county in which the suit is pend in g; and (4) the county in which the suit is pending is a fair and conveni ent venue for that plaintiff and all persons against whom the suit is brought.
I d

. § 1 5 .003(a).
Because section 15.003(a) “ takes as its starting p oint ” a pla in tiff who cannot establish proper venue, we must first determine whether a plaintiff can independently establish proper venue. Surgitek , Bristol

- Myers Corp. v. A b el , 997 S.W.2d 5 98, 60 2 ( Tex. 1 999) (citing T EX
. C IV
. P RAC
. & R EM
. C ODE § 15.003( a)). This de te rmination is made “ using venue proof standards

— if the plaintiff offers prima fa c ie proof through pleadings and affida vits that venue is proper, the inquiry is over. ” Id. “Proper venue ” means: (1) the venue , a s p r o v i d e d b y s ubchapter B of6

C h apte r 15 of the C ivil P ractice and R emedies C ode or any other statute prescribing mandatory venue; or (2) if t h e r e i s n o m a n d a t o r y v e n u e , the venue provided under the general venue statute or t he per m issive venue provisions of subchapter C of chapter 15. T EX
. C I V
. P RAC
. & R EM
. C ODE § 15.001 (b)

. The M ontgomery County plaintiffs identified their addresses in their original
pe titions, and they do not dispute that th eir aff ected p roperties are in Mo ntgome r y County . Civil Practice and Remedies Code section 15 .0 11 provides that , for suits involving land, venue is mandatory in the county where the property is located: Actions for recovery of real property or an estate or interest in real property, for p artiti o n of real property, to remove encumbrances from the tit le to real property, for recovery of damages to real property, or to quiet title to real property shall be brought in the county in which all or a part of the property is located

. Id. § 15.011. Becaus e this suit involves inj ury to land, this mandatory venu e provision a pplies. Accordingly, we conclude that the Montgomery County plaintiffs
cannot independ ently establish that venue for their claims is proper in Harris County. See id. §§ 15.001, 15 .0 11.
We turn next to whether the limited exception set out in s ecti on 15 .003(a) applies to the claims of the Montgomery County plaintiffs. “ [S ]ec t i on 15.003(a) expressly places the burden on the plaintiff to ‘ establ ish ’ four elements before she can join ven ue for the suit. ” Surgitek , 997 S.W.2d at 602. The plaintiff m ust offer prima facie proof of the four elements

. T he statutory language “ contemplates t he7

admission, in some i n stances, o f a br oader range of evidence than would be admissible in a venue h earing. ” Id. When reviewing o n interlocutory appeal a trial court ’ s sect ion 15 .003 ruling , this Cou rt must “ determine wh ether the trial court ’ s order is proper based on an independent determination from the record and no t under either an abuse of
discretio n or sub stan tial e vidence standard

. ” T EX
. C IV
. P RAC
. & R EM
. C ODE § 1 5.00 3(c)(1) . We thus conduct a “ de novo review of the en t ire record to determine whether a trial court ’ s section 15.003(a) joinder determination was pr oper. ” Surgitek , 997 S.W.2d at 60 3.
T he Mont gome ry County plaintiffs did not p resen t an y evidence on the four elements set out in section 15.003(a) . At the hearing before the trial court, the y argued that , in an unopposed motion to consolidate filed by the River Authority in
S eptember 2019, the Rive r Au thority “ judicially admitted each o ne o f the elements to the ex ce p tion in 15 .003. ” In that motion, the Riv er Authority indicated that it was

“ unopposed to the motion to consolidate in two other inverse co ndemnation cases ”
based on the same alle gations at i ssue in this case . T he River Author ity recognized th at th e la wsuits were “ practically identical, including the fact that all such Plain tiffs share the same counsel, [and] other than individual addresses, all involve common questions of law and fact. ”8

Assu ming without deciding that the statements in this motion cons titut e judicial adm issions, 1 we conclude that they fail to establish the Montgomery County plaintiff s ’ entitlement to the limited exception in section 15.003(a). The fact tha t the

ca ses are “ prac tically identical ” except for the differ ing addresses an d th at they share common questions of law and fact are insufficient to establish element 3 , which requires p roof that “ there is an essential need to have that plaintiff ’ s claim tried in
t he count y in which the suit is pending

. ” T EX
. C IV
. P RAC
. & R EM
. C ODE §
1 5 .003(a)(3) . Proof of an “ essential need ” to have the claim tried in Harris County requires more than proof of convenience or the need to pool resources

. See Surgitek , 997 S.W. 2 d at 60 4. Rathe r, ea ch plaintiff must prove that suit in H a rris County is

“ ind ispensably necessary. ” I d. (reco gnizing that this burden is “ very high ” ).

1 The River Authority argues that its statements in the motion identified by the Montgo mer y County plaintiffs do not qu alify as judicial admissions. T he River Auth o rity points out t hat the motion was never presented to the trial court and was never ruled upon , and it argues that the statements were not clear and unequivocal s ta tements of fac t

. See, e.g. , Horizon/CMS Health care Corp. v. Auld , 34 S.W.3d 8 87, 905 (Tex

. 2000) ( requiring “ a clear , deliberate, and unequivocal ” statement of fact for statement to constitute judicial admission); We slaco Fed. of Teachers v. Tex. Educ. A gency , 27 S.W.3d 258, 263 (Tex. App.

— Austin 2000, no p et.) ( “ T o qualif y as a judicial admiss i o n, a statement must be (1) made in the course of a judicial proceeding; (2) contrary to an essential fact for the party ’ s recovery; (3) deliberate, clear and uneq uivocal; (4) related to a fact upon which judgment for the opp osing pa rty could be based; an d (5) enforcing the admission would be consistent with public policy. A true judicial admission is a formal waiver of proof usually found in pleadings or the stipul ations of the parties. ” ). Be cause we conclude that the stateme nts iden tified by the Montgome r y County plaintiffs did not satisfy their burden of proof under section 15 .003(a), this contention is irrelevant to our analysis

.9

T he facts cited by the Montgomery County plaintiffs

— that the suits share common question s of fact and law and are trie d by the same counsel

— do not
estab lish an essential need to proceed in Harris County. 2 Those facts are relevant to the elements of prejudice or the conveni ence of the selected venue, but they do not prove that venue in Harris County is ind ispens abl y necess ary t o the resolution of the Montg omery County plaintiff s ’ claims against the River Authority. See , e.g. , Ramirez v. Collier, Shannon, Scott, PLLC , 123 S.W.3d 43, 52 (Tex. App.

— Houston [1st Dis t.] 2003, pet. denied) (op. on reh ’ g) (holding benefits of pool ing r esources, shared facts and is sues, and location of witnesses does not show essential need); Smith v. Adair , 96 S.W.3d 700, 707 (Tex. App.

— Texarkana 2003, pet. denied) (recognizing essentia l need means more than judicial economy or con venience) ; O ’ Quin n v. Hall , 77 S.W.3d 438, 451 (Tex . App.

— Corpus Christi

– Edinburg 2002, no pet.) (“[T]he mere fact that a related suit is already proceeding in that county is
insufficient to establish that it i s indispensably necessary for the plaintiff se eking joi nder or inter vention to try his claims the re.”). Because the Montgomery County plaintiffs failed to establish the essential

- need element, we need not address the other joinder factors. See Sm ith , 96 S. W.3d at 708.

2 T he River Authority ar gued tha t the M ontgom er y County pl aintiffs affirmatively cannot establ ish an e ssential need to maint a i n their claims in Harris County because nu merous other claims have been filed in s urrounding counties, including in Mon t go mery County.10

Because the Montgomery County plaintiffs d id not e stabl ish that venue was proper in Harris County, nor did they establish the applicability of section 15.003(a) ’s exceptions, we conclude that the trial court erred in denying the River
A uthorit y ’ s motion to dismiss or transfer pursuant to section 1 5.003.
T he Mo ntgomery County plaintiffs ar gue th at the River Author ity ’ s motion was untimely , pointing out that the River Authority did not challe nge venue until

a fter it had answered the Grothe and Collin s cases and after it had otherwise participat e d in litig ation af ter those cases were conso lidated into the underlying suit.
See T E X
. R. C IV
. P . 86(1) ( “ An objection to improper venue is waived if not made by written motion prior to or concurrently w ith any other plea, pleading or motion except a spec ial appeara nce [

. ] ” ) . This arg ument, however, ig nores the unique nature of section 15 .003

.

“ Section 15.003 is not a venue statute; it is a joinder statute . The statute allows an interlocutory appeal for one specific purpose: to con test the trial court ’ s de cis ion allo wing or denying intervention or join der. ” Am. Home Prods. Corp. v. Clark , 38 S.W.3d 92 , 96 (Tex. 2000); Ramirez , 123 S.W.3d at 49 ( “ A tr ial court ’ s ruling under section 15.0 03 is not a venue ruli ng; it is ruling on intervention or joinder

. . . . ” ) ; see Surgitek , 9 97 S.W.2d at 602 ( “ The fact that section 15.003(a) appears in the venue chapter of the Civil Practice and Remedies Code informs but does not control what type of hearing or standard of proof governs a section 15.003(a ) joinder11

deter min ation. ” )

. The plain l an guage of secti on 15.003 contemplates that all plaintiffs must independently establish proper venue regardless of when or how they
enter the suit

. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 15.003 ( a). Our sister court of appeals ad dressed a si milar ar gument in Wel ls Fargo Bank Texas, N.A. v. Barton , 100 S.W.3d 455 (Tex. App.

— San Antonio 2003, no pet.) . In that case, th e Barton appellees argued that the Bank ’ s challenge to join der was , in reality, a motion to transfer venue, a nd, thus, the Ba nk waived i ts right to c ha llenge joinder under section 15.003 because the motion to transfer was not filed and ruled
up on prior to the Bank ’ s seeking other affirmative relief. Id. at 459. The San An tonio Court of Appeals rejected this argument, stat ing tha t “ [a] n ord er transferri ng venue of certain claims based upon a finding of improper joinder is still a joinder decision, even though the remedy for misjoinder may be transfer rather than outright
dismissal

. ” Id. (citing Surgitek , 997 S.W.2d at 60 4 and O ’ Qu inn , 77 S.W .3d at 445 ).
Th e c ourt held that “ [ t ] here is no requirement that a motion to dismiss a party seeking joinder must be filed before any other pleading or request for relief. ” Id. ; c ompare T EX
. C IV
. P RAC
. & R EM
. C ODE § 15.003 (no due cours e of pleading require ment) with T EX
. R

. C IV
. P . 86(1) (motion to transfer venue is waived if not filed prior to or concurrent with any other pleading). Other c ourts have reached a similar conclu sion

. In Wyeth v. Hall , the
B eaumont Court of Appeals held that “ section 1 5.003 ha s no due dil igenc e12

requirement. ” 118 S.W.3d 487, 491 (Tex. App.

— Beaumont 2003, no pet. ) (applying general rule that complaint about misjoinder must b e made prior to submission of

ca se to trial court in determining that part y did not waive section 1 5.003 ch allenge by f ailin g to diligent ly pursue hearing on motion to transfer venue); see UPS Ground Freight, Inc. v. Trotter , 606 S.W.3d 781, 786 (Tex. App.

— Tyler 2020, pet. filed ) (holding that Rul e 87(5) ’ s pro vision limiting ava ilability of motion for r ehe a ring on

v enue ru lings “ is at odds with Section 15 .003 ’ s insistence that all plaintiffs prove venue is appropriate as to them even though th ey entered the suit at different ti mes ” ) ; In re Estate of Gr i

ffi th , No. 05

- 19

- 01144 , 202 0 WL 113675, at *2 ( Tex. App

. — Dallas Jan. 10, 2020, no pet. ) (mem. op.) (recognizing that section 15.003 provide s exception to section 15.064 ’ s and Rule 87 ’ s prohibition on in terlocutory app eals by permitting appeal ). We find the reasoning in these cases p ersuasive here and
determine th at the R iver A u thority di d not waive its complaint u nder section 15.003

. We sus tain the River Au thor ity ’ s sole issue. Con clusion We reverse the trial court ’ s order denying the River Au tho rity ’ s Motion to Dismiss/Transfer Impr operly Joined Plaintiffs filed pursuant to Ci vil Practic e and Remedies Code section 15 .003. We r emand the case to the trial court t o transfer the
Mont gomery County plaintiffs ’ claims to a county of proper venue or to d ismiss them , as appropriate. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 15.003 (a).13 Richard Hig htower Justice Panel consists of Justices Kelly, Landau, and Hightower.