[Cite as First Merit Bank v. Doll, 2012-Ohio-2292.]

                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                      :   JUDGES:
FIRST MERIT BANK, N.A.                                :   W. Scott Gwin, P.J.
                                                      :   William B. Hoffman, J.
                         Plaintiff-Appellee           :   Julie A. Edwards, J.
                                                      :
-vs-                                                  :   Case No. 2011CA00187
                                                      :
                                                      :
JOHN A. DOLL                                          :   OPINION

                     Defendant-Appellant

CHARACTER OF PROCEEDING:                                   Civil Appeal from Canton Municipal
                                                           Court Pleas Case No.
                                                           2011CVF2440

JUDGMENT:                                                  Affirmed In Part and Reversed
                                                           In Part, Judgment Entered

DATE OF JUDGMENT ENTRY:                                    May 21, 2012

APPEARANCES:

For Plaintiff-Appellee                                     For Defendant-Appellant

PHILLIP D. SCHANDEL                                        JOHN A. DOLL, Pro Se
116 Cleveland Ave., N.W.                                   2444 Howenstine Drive
Suite 709                                                  East Sparta, Ohio 44626
Canton, Ohio 44702
[Cite as First Merit Bank v. Doll, 2012-Ohio-2292.]

Edwards, J.

        {¶1}     Defendant-appellant, John Doll, appeals from the July 28, 2011, Judgment

Entry of the Canton Municipal Court granting the Motion for Summary Judgment filed by

plaintiff-appellee First Merit Bank, N.A. and granting plaintiff-appellee judgment against

defendant-appellant in the amount of $9,410.11 plus interest.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     On April 6, 2011, appellee First Merit Bank, N.A. filed a complaint against

appellant John Doll in the Canton Municipal Court. Appellee, in its complaint, alleged

that appellant had executed and delivered to appellee a promissory installment note and

that appellant had failed to pay such note. Appellee sought judgment against appellant

in the amount of $9,410.11 plus interest at the rate of 6.99% from March 4, 2011.

Appellant filed an answer to the complaint on June 3, 2011. The case was assigned to

Judge Stephen Belden.

        {¶3}     Pursuant to a Judgment Entry filed on June 3, 2011, Judge Belden

recused himself “feeling that his impartiality might reasonably be questioned in any

subsequent action herein…” The case was transferred to Judge Mary Falvey.

        {¶4}     A telephone status conference was held on June 21, 2011. The trial court,

as memorialized in a Judgment Entry filed on June 21, 2011, granted appellee leave to

file a Motion for Summary Judgment by August 1, 2011.

        {¶5}     On June 30, 2011, appellee filed a Motion for Summary Judgment. Via a

Notice filed on June 30, 2011, the trial court indicated that it intended to consider such

motion on July 19, 2011. Appellant did not file a response to the Motion for Summary

Judgment. Pursuant to a Judgment Entry filed on July 28, 2011, the trial court granted
Stark County App. Case No. 2011CA00187                                                     3

such motion and granted appellee judgment against appellant in the amount of

$9,410.11 plus interest at the rate of 6.99% from March 4, 2001.

       {¶6}   Appellant now appeals from the trial court’s July 28, 2011 Judgment Entry.

       {¶7}   Appellant has failed to comply with App.R. 16(A)(3) as his brief does not

include a statement of the assignments of error presented for review.

       {¶8}   Appellant, in essence, argues that the trial court erred in granting

appellee’s Motion for Summary Judgment.

       {¶9}   Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). As

such, we must refer to Civ.R. 56(C) which provides, in pertinent part: “Summary

judgment shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence in the pending

case and written stipulations of fact, if any, timely filed in the action, show that there is

no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. * * * A summary judgment shall not be rendered unless it

appears from such evidence or stipulation, and only from the evidence or stipulation,

that reasonable minds can come to but one conclusion and that conclusion is adverse

to the party against whom the motion for summary judgment is made, such party being

entitled to have the evidence or stipulation construed most strongly in the party's favor.”

       {¶10} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,
Stark County App. Case No. 2011CA00187                                                    4

1997-Ohio-259, 674 N.E.2d 1164, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-Ohio-

107, 662 N.E.2d 264.

       {¶11} As is stated above, appellee, on June 30, 2011, filed a Motion for

Summary Judgment. Appellee, in support of its motion, submitted the affidavit of Gail

Jeffreys, an employee of and Collections Officer for appellee. Jeffreys, in her affidavit,

stated, in relevant part, as follows:

       {¶12} “2. Affiant states that Plaintiff First Merit Bank, N.A. is the holder of the

promissory note attached to plaintiff’s complaint as Exhibit A.

       {¶13} “3. Affiant states that there has been a default in payment under the terms

of the note. Plaintiff has therefore elected to accelerate the entire balance due.

       {¶14} “4. Affiant states that there is due it on said account the balance of

$9,410.11, together with interest therefrom March 4, 2011, at the rate of 6.99 percent

per annum.

       {¶15} “5. Affiant states that all the exhibits attached to plaintiff’s complaint are

true and accurate copies of original documents maintained by First Merit Bank, N.A.,

and that all of the statements contained herein and in plaintiff’s complaint are true to the

best of affiant’s knowledge and belief.”

       {¶16} We note that appellee did not file a response to such motion. We find,

that, construing the evidence in appellant’s favor, there are no genuine issues of

material fact and that the trial court did not err in granting appellee’s unopposed Motion

for Summary Judgment. However, we find, as appellee concurs, that the trial court erred

in awarding appellee interest from March 4, 2001 rather than March 4, 2011, as

requested in the complaint.
Stark County App. Case No. 2011CA00187                                                     5

       {¶17} Appellant, in his brief, also appears to argue that Judge Falvey had a

conflict of interest. The statutory procedure for disqualification of a municipal court judge

is set forth in R.C. 2701.031: “(A) If a judge of a municipal or county court allegedly is

interested in a proceeding pending before the judge, allegedly is related to or has a bias

or prejudice for or against a party to a proceeding pending before the judge or to a

party's counsel, or allegedly otherwise is disqualified to preside in a proceeding pending

before the judge, any party to the proceeding or the party's counsel may file an affidavit

of disqualification with the clerk of the court in which the proceeding is pending ...” We

note that appellant did not file such an affidavit.

       {¶18} Appellant also asserts that appellee’s counsel had a conflict of interest.

We note, however, that appellant did not file a Motion to Disqualify appellee’s counsel

and that the assertions made in appellant’s brief concerning appellee’s counsel are not

reflected in the record.

       {¶19} Finally, appellant also contends that after the appeal was filed, he

received a notice from the court indicating that he had a “right to trial against garnishing

my wages.” Appellant maintains that the same was sent to the wrong address, making

him unable to timely respond. However, the document that appellant refers to is not part

of the record on appeal.
Stark County App. Case No. 2011CA00187                                              6

      {¶20} Accordingly, appellant’s assignments of error are overruled in part and

sustained in part. We hereby enter judgment pursuant to App.R. 12(B) in favor of

appellee and against appellant in the amount of $9,410.11 plus interest at the rate of

6.99% per annum from March 4, 2011.

By: Edwards, J.

Gwin, P.J. and

Hoffman, J. concur

                                                 ______________________________

                                                 ______________________________

                                                 ______________________________

                                                             JUDGES

JAE/d0210
[Cite as First Merit Bank v. Doll, 2012-Ohio-2292.]

                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

FIRST MERIT BANK, N.A.                                :
                                                      :
                             Plaintiff-Appellee       :
                                                      :
                                                      :
-vs-                                                  :       JUDGMENT ENTRY
                                                      :
JOHN A. DOLL                                          :
                                                      :
                        Defendant-Appellant           :       CASE NO. 2011CA00187

       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Canton Municipal court is affirmed in part, and reversed in part.

Judgment is entered in favor of appellee and against appellant in the amount of

$9,410.11 plus interest at the rate of 6.99% per annum from March 4, 2011. Costs

assessed 75% to appellant and 25% to appellee.

                                                          _________________________________

                                                          _________________________________

                                                          _________________________________

                                                                       JUDGES


257 F.2d 83
BLUFF CREEK OIL COMPANY and Wabash Oil Company, Appellants,v.Harold J. GREEN, Appellee.
No. 17056.
United States Court of Appeals Fifth Circuit.
June 26, 1958.

Leon Shipp, Oklahoma City, Okl., J. W. Hassell, Jr., Dallas, Tex., Robinson, Shipp, Robertson & Barnes, Oklahoma City, Okl., for appellants.
Charles O. Shields, Dallas, Tex., for appellee.
Before TUTTLE, BROWN and WISDOM, Circuit Judges.
JOHN R. BROWN, Circuit Judge.

1
In testing whether the summary judgment entered in behalf of an Illinois judgment creditor with an ancillary Illinois order of garnishment was correct, the real issue is the validity of the Illinois judgment entered after default by the nonresident defendants who were purportedly served with process in accordance with the Illinois statutory procedure.

2
The case comes to us via an interpleader filed by an oil purchasing company under 28 U.S.C.A. §§ 1335, 1397, and 1361 seeking to determine to whom Texas oil run payments, deposited by it as a stakeholder in the registry of the Federal Court, should be paid. Only that portion of the final interpleader judgment below as adjudged specified amounts to Green, the Illinois judgment creditor, rather than to Bluff Creek Oil Company and Wabash Oil Company, two of the three Illinois judgment defendant debtors, is before us. The sole attack is on the ground that the Illinois default judgment was void for want of jurisdiction over the person of the non-resident defendants. That in turn involves the validity of the Illinois statute as retroactively applied and the nature and sufficiency of the activities in Illinois of the nonresident defendants to give contact with Illinois.

3
Underlying this complex litigation which has percolated to us in a simplified form is the old, old story. Green, an Illinois lawyer, importuned in 1951, so he says, by R. H. (Bob) Rucker, an Oklahoma oil man, the president of Wabash, the general factotum and manager of Bluff Creek, father of its vice president, the initial lessee in several of the interests sold to Green, bought a fractional part of the working interest in five Texas leases which were owned by Bob Rucker or Wabash. At the time of the purchase, Rucker represented to Green that the wells were commercially productive at a specified rate, would make substantial profits and return his investment within two years. Green also claims that Rucker represented that while the properties were under an existing operating agreement between the mineral lessees and "his corporation," Bluff Creek, covering operation and development of the properties, there was then, and would thereafter be, no service charge made by Bluff Creek, and operating expenses were fixed at approximately one-fourth of the value of current production. As the frequent sequel, it did not turn out that way, resulting, so Green says, to his damage in the amount of $17,000 which he had paid for these working interests.

4
This was the burden of Green's suit filed in the Illinois State Court November 14, 1956, against R. H. Rucker, Wabash and Bluff Creek. Acting pursuant to those provisions1 of the Illinois Civil Practice Act enacted in 1953 and amended 1955, process was issued and was thereafter served personally on R. H. Rucker individually and on behalf of the two corporations, at the offices in Oklahoma City where the business of Rucker and these affiliated corporations was generally conducted.

5
As the question of the construction and validity of the Illinois statute is common to both defendants, we dispose of it before discussing the factual distinctions between the two. Actually the interpretation of the statute insofar as its retroactivity is concerned is not open to us. As this is just another diversity suit, [Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188] commits us to what authoritative Illinois decisions have said. Whether for good or bad, Illinois has ruled precisely that as a matter of statutory interpretation this Act has retroactive application. Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673.

6
Of course, that Illinois holding, decisive as it is on construction, still leaves for us the genuine Federal question whether either its retroactivity or applicability to nonresidents served outside the state violated the National Constitution. On neither point, in our judgment, is the Act imperiled. Indeed, both seem to be authoritatively answered by McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed. 223. On retroactivity and the analogous problem of impairment of contracts, the Court emphasized about the California statute there involved what the Illinois Court stressed concerning this one in Nelson that the service of process statute did not add to or create new liabilities which were then sought to be retrospectively asserted. What the process law does is merely provide for the effectual assertion of that right, a means of doing so through local courts. As a remedial, procedural statute, it could constitutionally apply to supply effective machinery for the assertion of existing substantive rights which, of course, on Green's Illinois State Court complaint came into being as a result of the transactions in 1951. Funkhouser v. J. B. Preston Co., 290 U.S. 163, 54 S.Ct. 134, 78 L.Ed. 243; National Surety Co. v. Architectural Decorating Co., 226 U.S. 276, 33 S.Ct. 17, 57 L.Ed. 221. Moreover Illinois, concerned as it is with a construction which claims the full reach open under the Federal Constitution, is aware of the vital distinction and has itself stricken down retroactive laws which create new substantive rights or impose new liabilities. Theodosis v. Keeshin Motor Express Company, Inc., 341 Ill.App. 8, 92 N.E.2d 794.

7
Similarly, the Court in McGee held that if the transaction was one which had a substantial connection with a state and effective means was provided in the statute for actual notice and ample opportunity to appear and defend,2 it was not a violation of due process to afford local citizens a local forum for redress of local wrongs or rights. This was, the Court asserted, the lesson taught, for "Looking back over this long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents." McGee v. International Life Insurance Co., supra, 355 U.S. at page 222, 78 S.Ct. at page 201, 2 L.Ed.2d at page 226.

8
Of course this latter point requires that there be some connection with the State of Illinois to invest it with the power to make service of its process effective against outsiders. Sunday v. Donovan, 16 Ill.App.2d 116, 147 N.E.2d 401; Haas v. Fancher Furniture Co., D.C.Ill., 156 F.Supp. 564; Orton v. Woods Oil & Gas Co., 7 Cir., 249 F.2d 198; Nelson v. Miller, supra. We find no difficulty on that score so far as the nature of these transactions is concerned and the participation in them by Wabash. Our reservation on Bluff Creek arises entirety because that was a factual dispute not resolvable by summary judgment.

9
By request for Admissions and a pretrial deposition of Rucker, it was uncontradicted that all of the negotiations with Green in 1951 had taken place in Chicago over a period of a considerable number of days. The agreement was there made, Rucker returned to Oklahoma where the papers were prepared after which they were returned to Chicago for final execution and delivery there. What was sold and conveyed by these transactions was a fractional part of the working interest which Rucker individually or Wabash owned in the properties. Obviously Rucker was authoritatively dealing for himself, and it is equally plain that he was, and was acting as, the president of Wabash and on its behalf in the Chicago transactions. He could bind it by the contracts there negotiated and made and could, at the same time, commit torts in Illinois by making the representations which the default decree, if valid, established. The moving papers reflected that there was no genuine, real, actual issue of fact on this, and summary judgment was therefore right as a means of disposing of it without a costly, prolonged trial. Cf. Millet v. Godchaux Sugars, Inc., 5 Cir., 241 F.2d 264; Carss v. Outboard Marine Corp., 5 Cir., 252 F.2d 690, 1958 A.M.C. 638.

10
But this was not the case with respect to Bluff Creek. Court and counsel seem to have become so preoccupied with the question of agency of Rucker to act for and on behalf of, or receive service3 for, Bluff Creek, that the crucial point escaped all.

11
The serious question was not whether Rucker was agent for Bluff Creek. Indeed, this was no question at all for the Requests for Admission, showing factually that he was, had been, and still was the general manager of Bluff Creek in the active management and handling of its affairs, and not a single act of his in all of his manifold dealings had ever been questioned or repudiated by the corporation, made his belated formal denial of authority a pure afterthought and a pretended dispute which was ineffectual. Bruce Construction Corp. v. United States, 5 Cir., 242 F.2d 873.

12
What was the issue was whether, in fact, Rucker with his collapsible, expansible legal personality as he dealt now for himself, now for one, but not the other, of several corporations, did anything in Chicago on behalf of Bluff Creek. On the record so far, Bluff Creek did not itself sell anything. It had nothing to sell. Its connection with these properties was solely that of the operator under a traditional operating agreement previously executed and thereafter binding on successors of all or a part of the working interest. In Green's State Court complaint and in his supporting affidavit for summary judgment, he inferentially alleges that misrepresentations were made by Rucker apparently on behalf of Bluff Creek, but no factual statements are made with such positiveness and directness that, standing alone, they would reflect that no issue existed. Moreover, Bluff Creek filed a controverting affidavit denying categorically that it had or carried on any dealings with Green in Illinois in the transaction which was the basis of the Illinois suit. The affidavit also set forth in detail the operating agreements between it and Rucker and it and Wabash. In accordance with the operating agreements, invoices were sent, of course, to owners of fractional parts of the working interest, but this, it claimed, was not a part of the transaction itself, and the mere transmission of them to Green in Chicago by mail thereafter did not give requisite connection with Illinois.

13
In the face of this and the equivocal nature4 of the answers to Requests for Admissions, a definite impression was left that a real controversy existed on whether Bluff Creek, through Rucker or any other agent, had had any such dealings in Illinois with Green. That, of course, was crucial to the valid application of Section 17 of the Illinois Civil Practice Act and where one affirms, and the other denies, and it is not a mere paper sham, the Court cannot short circuit a trial or the determination by Judge or Jury of the right of that issue in the traditional way. Bruce Construction Corp. v. United States, supra.

14
The judgment is affirmed as to Wabash but reversed and remanded for further and not inconsistent proceedings5 as to Bluff Creek.

15
Affirmed in part and reversed and remanded in part.

Notes:

1
 Sections 17 and 16, Title 110, Smith-Hurd Illinois Annotated Statutes, as amended 1955, provided:
"§ 17. Act submitting to jurisdiction — Process.
"(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of said acts:
"(a) The transaction of any business within this State;
"(b) The Commission of a tortious act within this State; * * *
"(2) Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this section, may be made by personally serving the summons upon the defendant outside this State, as provided in this Act, with the same force and effect as though summons had been personally served within this State.
"(3) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.
"(4) Nothing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law."
"§ 16. Personal service outside State.
"(1) Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State or upon a person who has submitted to the jurisdiction of the courts of this State, it shall have the force and effect of personal service of summons within this State; otherwise it shall have the force and effect of service by publication.
"(2) The service of summons shall be made in like manner as service within this State, by any person over 21 years of age not a party to the action. No order of court is required. An affidavit of the server shall be filed stating the time, manner and place of service. The court may consider the affidavit, or any other competent proofs in determining whether service has been properly made.
"(3) No default shall be entered until the expiration of at least 30 days after service. A default judgment rendered on such service may be set aside only on a showing which would be timely and sufficient to set aside a default judgment rendered on personal service within this State."

2
 The nonresident corporate defendants had actual knowledge of the suit through personal service on its responsible management. The defendants had at least 30 days for answer prior to default, see Section 16(3), note 1, supra, and the Act likewise provided for a special appearance to contest jurisdiction:
"§ 20. Special Appearance.
"(1) Prior to filing any other pleading or motion, a special appearance may be made either in person or by attorney for the purpose of objecting to the jurisdiction of the court over the person of the defendant. A special appearance may be made as to an entire proceeding or as to any cause of action involved therein. Every appearance prior to judgment, not in compliance with the foregoing is a general appearance. * *
"(3) If the court sustains the objection, an appropriate order shall be entered. Error in ruling against the defendant on the objection is waived by the defendant's taking part in further proceedings in the case, unless the objection is on the ground that the defendant is not amenable to process issued by a court of this State."

3
 As Section 16, note 1, supra gives personal service on a nonresident subject to Section 17 the same force and effect as personal service within the state, service upon Rucker as general manager was sufficient under Section 13.3 of the Illinois Civil Practice Act:
"A private corporation may be served (1) by leaving a copy of the process with its registered agent or any officer or agent of said corporation found anywhere in the State; or (2) in any other manner now or hereafter permitted by law."

4
 The ones chiefly relied on by Green are Numbers 38 and 39:
"38. That Bob Rucker, also known as R. H. Rucker, has since 1951 personally appeared in Fort Worth, Texas at the offices of the plaintiff, Sinclair Crude Oil Company and in Chicago, Illinois at the offices of the defendant, Harold J. Green."
Answer: "This defendant admits the matter stated therein."
"39. That on such occasions he has purported to transact business on behalf of Bluff Creek Oil Company, defendant herein."
Answer: "This defendant admits that Bob Rucker has acted as the Business Manager of Bluff Creek Oil Company of Texas and as such has transacted business on behalf of said company."
Number 38 does not purport to say that while at the offices of Green in Chicago, Rucker was there on behalf of anyone, Bluff Creek or otherwise. That was to be covered by Number 39, but the answer carefully refrains from making any admission about "such occasions" or that he has ever "transacted business" on behalf of Bluff Creek with Green. If in the context of this case, these answers were a disingenuous, cunning deception and a failure fairly to meet the substance of the requested Admission, F.R.C.P. 36 (a), 28 U.S.C.A., the sanction to be exerted is found in F.R.C.P. 37(c); Akins v. McKnight, D.C.Ohio, 13 F.R.D. 9, and not in the unauthorized granting of summary judgment.

5
 Partial summary judgment, F.R.C.P. 56 (d), was proper as to Rucker's agency generally and as a proper person upon whom service of process could be had. Pending further hearing by the District Court after remand, the stay of the State Court proceedings in Illinois or Texas, or both, shall remain in effect to allow the Trial Court to preserve the status quo


                            NUMBER 13-11-00162-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

EVERHART INVESTMENT TRUST,                                                  Appellant,

                                             v.

JON STRAND, BETH STRAND AND
RONALD GILSTAP,                                                             Appellees.

                    On appeal from the 36th District Court
                           of Bee County, Texas.

                         MEMORANDUM OPINION
            Before Justices Rodriguez, Benavides, and Perkes
               Memorandum Opinion by Justice Benavides
      Appellant Everhart Investment Trust (“Everhart”) appeals the trial court’s grant of

appellees Jon Strand, Beth Strand, and Ronald Gilstrap’s (collectively “Strand”) plea to

the jurisdiction and motion for sanctions.   By two issues, Everhart submits that (1) the

trial court erroneously granted Strand’s plea to the jurisdiction; and (2) the trial court
abused its discretion in amending its final order to include sanctions against Everhart.

Because we find no error and no abuse of discretion with respect to Everhart’s two

issues, we affirm.

                                        I.      BACKGROUND1

        In 2006, the federal Internal Revenue Service (“IRS”) filed a notice of tax lien 2

against Everhart as “nominee, transferee, and/or alter ego of Samuel Watson and Esther

Watson” in the Bee County property records. Later in the year, the IRS issued a levy and

notice of seizure for all of the rights, title, and interest Everhart held in a 154.54 acre tract

of land (“property”) located in Bee County.

        In December 2006, the Watsons, in the name of Everhart, filed suit in Nueces

County District Court to challenge the tax lien asserted by the IRS. Everhart then filed

two more suits in 2007 in Nueces and Bee Counties, respectively, again challenging the

validity of the lien.     All three state cases were subsequently removed to federal district

court in the Corpus Christi Division of the Southern District of Texas.                 In March 2007,

the IRS sold the property at public auction to Elise M. Hoting, and in June 2007, the

federal district court that handled Everhart’s pending cases dismissed them for lack of

subject-matter jurisdiction due to Everhart’s failure to comply with statutory requirements

for filing a refund suit. See 26 U.S.C.A. § 7422 (2012).

        The IRS eventually conveyed the property by quitclaim deed to Hoting in 2007,

and Hoting later conveyed the property to Strand in July 2009.                  In late 2010, Everhart

filed a petition for trespass to try title, see TEX. PROP. CODE ANN. § 22.001 (West 2000), in

        1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for
it. See TEX. R. APP. 47.4.
        2
            The lien stemmed from Samuel and Esther Watsons’s prior federal income tax liabilities.

                                                     2
Bee County district court alleging that the IRS’s seizure and sale of the property violated

Texas law and title should thus remain in Everhart’s name rather than in Strand’s.

Strand answered Everhart’s suit and filed a plea to the jurisdiction.

       After an evidentiary hearing, the trial court granted Strand’s plea to the

jurisdiction, and, on Strand’s motion, later modified its order to sanction Everhart

$10,000.00 in attorney’s fees. Everhart appealed.

                    II.     STRAND’S PLEA TO THE JURISDICTION

       In his first issue, Everhart submits that the trial court erred in granting Strand’s

plea to the jurisdiction.

A.     Applicable Law and Standard of Review

       A trial court draws its power to decide a case from its subject-matter jurisdiction,

and an absence of subject-matter jurisdiction may be challenged by a plea to the

jurisdiction.   See Bland Ind. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000).

The purpose of a plea to the jurisdiction is to defeat a cause of action “without regard to

whether the claims asserted have merit.”     Id. at 554.

       The question of whether a court has subject-matter jurisdiction is a question of law

that is reviewed de novo.     Tex. Dep’t. of Parks and Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004).      When deciding on a plea to the jurisdiction, we—like the trial

court—may look beyond the pleadings and consider evidence relevant to jurisdiction in

order to resolve the issues raised. See Miranda, 133 S.W.3d at 227 (citing Bland, 34

S.W.3d at 555).       If the evidence presented creates a question of fact regarding

jurisdiction, then the trial court cannot grant the plea and should allow the issue to be

decided by the fact finder.   See Miranda, 133 S.W.3d at 228.     However, “if the relevant

                                              3
evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial

court rules on the plea to the jurisdiction as a matter of law.”   Id. This review “mirrors”

that of a summary judgment.      Id. Therefore, when we review a plea to the jurisdiction,

we “take as true all evidence favorable to the nonmovant and indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor.”        Id.

B.     Discussion

       Strand argued to the trial court, and reasserts on appeal, that Everhart lacked

standing to bring its trespass-to-try-title suit because Everhart lacked a justiciable

interest in the property. We agree.

       “Standing is a pre-requisite to subject-matter jurisdiction,” Bland, 34 S.W.3d at

553, and we focus on the question of “who may bring an action.”                 M.D. Anderson

Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001). For a party to have a justiciable

interest to establish standing, there must be (1) a “distinct injury to the plaintiff;” and (2)

“a real controversy between the parties” which will be decided by the judicial declaration

sought.   Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001) (citing Tex. Workers’ Comp.

Comm’n v. Garcia, 893 S.W.2d 504, 517–18 (Tex. 1995)).                   A trespass to try title

adjudicates real property rights, see Ely v. Briley, 959 S.W.2d 723, 727 (Tex.

App.—Austin 1998, no pet.), and a “plaintiff in an action in trespass to try title must

recover, if at all, on the strength of his or her own title and may not rely on the weakness

of the defendant's title.”   United Sav. Ass’n. of Tex. v. Villanueva, 878 S.W.2d 619, 622

(Tex. App—Corpus Christi 1994, no pet.).

                                              4
        Here, Everhart alleged in its first amended petition that Strand entered onto its

land based upon an insufficient deed acquired through an unlawful seizure.                      To counter,

Strand introduced the following evidence to the trial court:

        (1) Everhart owned the property at the time the IRS filed a notice of federal
            tax lien in April 2006 at the Bee County real property records, see 26
            U.S.C.A. § 6321 (2012);

        (2) In October 2006, the IRS issued a levy and notice of seizure of the
            property pursuant to the April 2006 lien, see 26 U.S.C.A. § 6331 (2012);

        (3) The IRS sold the property by public auction to Hoting for $200,000.00 in
            March 2007 and conveyed a quitclaim deed of the property to Hoting in
            October 2007, see 26 U.S.C.A. §§ 6335, 6338 (2012); [and]

        (4) Hoting granted to Strand a warranty deed to the property in July 2009.

        Examining these facts in a light favorable to Everhart, we conclude that Everhart

did not have standing to maintain its suit because even assuming, without deciding, that

Everhart experienced an actual injury by having its property seized, Everhart failed to

show that a real controversy existed between it and Strand that could be resolved

through a trespass to try title suit.           See Brown, 53 S.W.3d at 305.                Our review of

Everhart’s pleadings, as well as the evidence put forth in the record, indicates that any

controversy that may exist with regard to the method and procedure followed in the

property’s seizure and sale directly involves the IRS, not Strand.3 Therefore, Everhart’s

lack of standing in the underlying suit deprived the trial court of subject-matter

jurisdiction.    See Bland, 34 S.W.3d at 553; M.D. Anderson Cancer Ctr. 52 S.W.3d at

708.

        We conclude that the trial court properly granted Strand’s plea to the jurisdiction
        3
          We note that the record includes Everhart’s previous filings which challenged the IRS’s lien and
subsequent seizure of the property. The challenges were filed in state court, later removed to federal
court, and eventually dismissed for want of jurisdiction because Everhart failed to file a refund suit with the
IRS as a statutory pre-requisite. See 26 U.S.C.A. § 7422 (2012).

                                                      5
and overrule Everhart’s first issue.

                               III.     SANCTIONS ORDER

       In his second issue, Everhart asserts that the trial court abused its discretion in

awarding sanctions in favor of Strand.

       Everhart argues that “in light of the [analysis from issue one], sanctions were

improper and were not within the Court’s discretion to grant.” This single-sentence

contention insufficiently briefs the issue.       See TEX. R. APP. P. 38.1(i) (requiring

appellant’s brief to “contain a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record).    Accordingly, without considering

the merits of the issue, we conclude that it has been inadequately briefed and therefore

waived.   See id.; Kansas City S. v. Port of Corpus Christi Auth. of Nueces County, 305

S.W.3d 296, 303 (Tex. App.—Corpus Christi 2009, pet. denied).

       Everhart’s second issue is overruled.

                                  IV.      CONCLUSION

       The trial court’s judgment is affirmed.

                                                           __________________________
                                                           GINA M. BENAVIDES,
                                                           Justice

Delivered and filed the
12th day of July, 2012.

                                              6


NO. 07-09-0090-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 20, 2009

______________________________

IN RE BRYN DUFFY, M.D., AND SUSANNE MATTSON-DUFFY,

INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN,

GUSTAF DUFFY AND HENRIK DUFFY, RELATORS

_________________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Relators Bryn Duffy, M.D. and Susanne Mattson-Duffy, individually and on behalf of their minor children, Gustaf Duffy and Henrik Duffy, seek a writ of mandamus directing the trial court to sustain their pending plea to its jurisdiction and dismiss the underlying case without prejudice.  For the reasons that follow, we will deny relators’ petition.

Background

On September 12, 2008, relators filed an original petition in the 99th District Court of Lubbock County alleging witness tampering, commercial bribery, breach of fiduciary duty, and civil conspiracy by real party in interest, Texas Medical Liability Trust (“TMLT”).  Without being served, TMLT filed a responsive pleading.
(footnote: 1)

Relators filed a notice of non-suit on October 14.
(footnote: 2)  But on October 16, a visiting judge signed an order that dismissed the case for want of prosecution.  By order signed November 25, the case was transferred to the 237th District Court of Lubbock County.  In an order signed February 6, 2009, the judge of the 237th
 District Court withdrew the October 16 dismissal order.  Relators filed a plea to the jurisdiction and motion to dismiss on March 17.  On March 19, relators filed their petition in this court seeking a writ of mandamus.
(footnote: 3)

Analysis

Relators seek this court’s writ of mandamus “directing the 237th District Court to promptly enter an Order of Dismissal Without Prejudice for Lack of Jurisdiction and take no further action on the case.”  Relators predicate their request on an argument that the plenary power of the trial court expired thirty days after the October 16 dismissal order.

Mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy by appeal.
Walker v. Packer,
827 S.W.2d 833, 839-40 (Tex. 1992);
see

In re Prudential Ins. Co. of Am.,
148 S.W.3d 124, 135-36 (Tex. 2004) (explicating adequate remedy by appeal).  By their plea and motion, relators have asked the trial court to determine its jurisdiction.  But the trial court has not ruled on their plea and motion, which had been pending only two days when relators filed in this court their petition for mandamus, containing the same arguments as those made to the trial court.  Thus, relators have not come to this court complaining of an order by the trial court.

A court may abuse its discretion by failing to execute a ministerial task for which no discretion attaches, such as refusing to conduct a hearing or rule on a properly pending motion.
See Eli Lilly and Co. v. Marshall,
829 S.W.2d 157, 158 (Tex. 1992).  A trial court, however, has a reasonable time to perform such a duty.
 In re Blakeney,
254 S.W.3d 659, 661 (Tex.App.–Texarkana 2008, orig. proceeding);
 Ex parte Bates,
65 S.W.3d 133, 135 (Tex.App.–Amarillo 2001, orig. proceeding).
 At this stage of the proceedings in the trial court a hearing and ruling would not be expected since the motion to dismiss was served on March 18 and the petition filed in this court on March 19.
See
 Tex. R. Civ. P. 21 (
a motion and notice of hearing “shall be served upon all other parties not less than three days before the time specified for the hearing unless otherwise provided by these rules or shortened by the court”).  Relators have not shown a clear abuse of discretion in the trial court’s failure to rule on a motion so recently filed.
Cf. In re Gonzales,
No. 07-06-0324-CV, 2006 WL 2588696, at *1, 2006 Tex. App. Lexis 8057, at *3, (Tex.App.–Amarillo Sept. 6, 2006, orig. proceeding) (mem. op.) (pendency of motion for three months not unreasonable delay).

But relators do not merely ask us to direct the trial court to rule; they ask that we direct its ruling.
  We have repeatedly held that we may not direct a trial court’s decision on a matter on which it has not ruled.
See, e.g.,
In re Minnfee,
No. 07-09-0005-CV, 2009 WL 127851, at *1, 2009 Tex. App. Lexis 332, at *1-2 (Tex.App.–Amarillo Jan. 16, 2009, orig. proceeding) (per curiam)
;
In re Rey,
No. 07-02-0104-CV, 2002 WL 350473, at *1, 2002 Tex. App. Lexis 1673, at *1-2 (Tex.App.–Amarillo Mar. 6, 2002, orig. proceeding) (per curiam) (not designated for publication).

 Accord In re Blakeney,
254 S.W.3d at 661;
In re Castle Tex. Prod. Ltd. P’ship,
189 S.W.3d 400, 403 (Tex.App.–Tyler 2006, orig. proceeding);
In re Ramirez,
994 S.W.2d 682, 684 (Tex.App.–San Antonio 1998, orig. proceeding).

 That holding is applicable to relator’s request.

Conclusion

Finding relators have not demonstrated the trial court has committed an abuse of its discretion or failed in performance of a ministerial duty, we need not consider whether they have shown they have no adequate remedy by appeal.  Accordingly, relators’ petition for writ of mandamus is denied.

James T. Campbell

         Justice

FOOTNOTES
1: TMLT’s responsive pleading was entitled Defendant Texas Medical Liability Trust’s Motion to Consolidate, Original Answer and Counterclaim to Plaintiffs’ Original Petition.  The mandamus record indicates the parties disagree whether TMLT asserted a counterclaim that survived the trial court’s October 16 dismissal order.  We express no opinion on this question.

2: Relators aver they mistakenly e-filed their suit in Lubbock County rather than Travis County.  They further aver that the suit was filed in Travis County on September 19, 2008, where it is presently abated pending resolution of the proceedings in Lubbock County.

3: Relators accompanied their petition for writ of mandamus with a motion for temporary relief, asking that we stay a hearing the 237th
 District Court scheduled for March 23, 2009, on motions filed by TMLT.  We denied the temporary relief.


704 F.Supp. 213 (1988)
Shirley BOOTH, Plaintiff,
v.
The BIRMINGHAM NEWS COMPANY, Defendant.
Civ. A. No. CV87-PT-0802-S.
United States District Court, N.D. Alabama, S.D.
January 11, 1988.
Ralph Bolen and A. Wilson Webb, Birmingham, Ala., for plaintiff.
Hubert A. Grisson, Jr., Michael L. Hall and Robert S. Vance, Jr., Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, Ala., for defendant.

MEMORANDUM OPINION
PROPST, District Judge.
This cause came on to be heard on the defendant's Motion for Directed Verdict after plaintiff had rested.
This court previously denied defendant's motion for summary judgment because plaintiff had made some suggestion that she would be able to establish some inference as to the third element of a retaliation claim enunciated in Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325, 1328 (5th Cir.1980). The plaintiff's suggested evidence was that although defendant had purportedly failed to reassign plaintiff to the Hoover area because of customer complaints, it had, in the past, not acted on such complaints. While the "evidence" offered in opposition to the motion for summary judgment may not have been adequate or even admissible or *214 in the form subject to consideration, the court gave the benefit of the doubt to the plaintiff. At the trial, however, plaintiff offered none of this evidence.
After plaintiff first conditionally rested, the court allowed her to re-open the evidence. Although the court had not then researched the issue, the court sensed that merely offering evidence of the first two Whatley elements was not sufficient to establish a prima facie case. Research proved this "sense" to be on target.
The following are a series of quotes from controlling and persuasive cases.[1]
In Dickerson v. Metropolitan Dade County, 659 F.2d 574, 580-81 (5th Cir. Unit B 1981), the court stated:
To establish a violation of section 704(a), the plaintiff must meet the requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Gupta v. East Texas State University, 654 F.2d 411, 414 (5th Cir.1981); Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325, 1327-28 (5th Cir.1980). First, the complainant in a Title VII action bears the initial burden of establishing a prima facie case of retaliatory conduct.
* * * * * *
To prove a prima facie case under section 704(a) the Title VII plaintiff must establish by a preponderance of the evidence that he engaged in an activity protected by Title VII; (2) that an adverse employment action occurred; and (3) that there was a causal connection between the participation in protected activity and the adverse employment action. Smalley v. City of Eatonville, 640 F.2d 765, 769 (5th Cir.1981); Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d at 1328.
* * * * * *
There is no dispute that Dickerson established the first two elements of a prima facie case of retaliatory firing. He filed a complaint with the EEOC in 1972, amending it in 1976 and 1977, and he was discharged from employment. After a thorough examination of the record, however, we are convinced that the plaintiff failed to establish the requisite causal link between the complaints and his discharge. Dickerson adduced no evidence to suggest a causal connection except for proof of a disharmonious relationship with Gancher and the fact of discharge four and one-half years after he filed his original complaint with the EEOC. Rather, the evidence demonstrated that DERM fired Dickerson because of excess absenteeism, poor work relations with the laboratory staff, and inadequate work.
[2](Emphasis added).
In De Anda v. St. Joseph Hospital, 671 F.2d 850 (5th Cir.1982) citing earlier 5th Circuit cases, the court said, inter alia:
In demonstrating her contentions, De Anda had the initial burden of establishing a prima facie case of retaliatory conduct.
671 F.2d at 856.
* * * * * *
Whether in establishing a prima facie case of retaliation, including that the employee was fired because of her activity (causation), the plaintiff must show the protected activity is the sole reason for the employer's action or only one of several reasons (some of which are legitimate) for the action is unclear from the law of this circuit. In the initial determination of a prima facie case, especially in light of the obligation of the employer to rebut such a case by an articulation of a legitimate nondiscriminatory reason and the subsequent burden of plaintiff to prove pretext, it is possible plaintiff need not prove such participation was the sole factor in the employer's action, but need only introduce enough evidence, direct or indirect to show a causal link, i.e., that without some explanation from the *215 defendant it is more likely than not "that such actions were `based on a discriminatory criterion illegal under the Act.'" Furnco Construction Corp. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978)
(Citation omitted). (Emphasis added).
671 F.2d at 857 n. 12.
In Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.1985), the court stated:
In a retaliatory discharge case under § 704(a), where there is no direct evidence of retaliation, we have held that a plaintiff may make a prima facie case of retaliation by proving:
(1) that there was a statutorily protected participation, (2) that an adverse employment action occurred, and (3) that there was a causal link between the participation and the adverse employment action.

Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325, 1328 (5th Cir., Unit B, 1980).
We do not construe the "causal link" in the Whatley formula to be the sort of logical connection that would justify a prescription that the protected participation in fact prompted the adverse action. Such a connection would rise to the level of direct evidence of discrimination, shifting the burden of persuasion to the defendant. Rather, we construe the "causal link" element to require merely that the plaintiff establish that the protected activity and the adverse action were not wholly unrelated.
[3]
In Doyal v. Marsh, 777 F.2d 1526, 1534 (11th Cir.1985), the court stated:
In order to establish a prima facie case of a retaliatory discharge, a plaintiff must establish (1) statutorily protected expression, (2) an adverse employment action, and (3) a casual link between the protected expression and the adverse claim. Lindsey v. Mississippi Research and Development Center, 652 F.2d 488, 491 (5th Cir. Aug. 3, 1981).
The Court noted that the trial court had erred in applying the standards of Sorrells v. Veterans Adm., 576 F.Supp. 1254, 1262 (S.D.Ohio 1983) which plaintiff here has argued to the court (particularly Sorrells (4)).
In Donnellon v. Fruehauf Corporation, 794 F.2d 598, 600-01 (11th Cir.1986), the Court stated:
Proof of retaliation is governed by the framework announced in McDonnell Douglas Corp. v. Green. Initially, the plaintiff must present prima facie proof of retaliation. "To establish a prima facie case of retaliation, [the plaintiff] must show (1) that he has engaged in statutorily protected activity; (2) that the employer has taken an adverse employment action; and (3) a causal connection exists between the two." The employer must rebut the prima facie case with a legitimate, nondiscriminatory reason for its actions. If the defendant carries this burden of production, then the court must inquire whether the stated reason is merely pretextual.
(Footnote omitted). (Emphasis added).
Donnellon suggests that "The Short period of time, however, between the filing of the discrimination complaint and plaintiff's discharge [one month] belies any assertion by the defendant that the plaintiff failed to prove causation. The plaintiff carried her initial burden." 794 F.2d at 601 (footnote omitted). If form is exalted over substance, this language might lead one to believe that the expiration of a short time alone can create an inference of a causal link. In Donnellon, however, there was no indicated intervening factor between the charge of discrimination and discharge. Here there was a settlement, and an oral and written objection from customers opposing the proposed assignment which plaintiff complains of not receiving.[4] Defendant *216 did not control the timing.[5] If timing alone, considered in vacuo, is sufficient to establish Whatley (3) under all circumstances, a plaintiff's burden of production would indeed be light unless the action were delayed for a number of years.[6] The evidence as presented during plaintiff's case indicates that "timing" was not a significant factor and it created no reasonable inference in this case. The obvious time for customers to object to an assignment is when the assignment is about to be made.[7] If the evidence is examined in light of Judge Randall's statement in De Anda that "[is it] more likely than not `that such actions were' based on a discriminatory criterion illegal under the Act," it becomes apparent that plaintiff's case does not pass muster. The evidence that (1) defendant settled a discrimination claim;[8] (2) early on decided to assign plaintiff to Hoover accounts; (3) received complaints from customers opposing the assignment; and (4) considered the fact that plaintiff has previously objected to an assignment and insisted on the objections being put in writing, are all entirely consistent with a pure business decision with no inference of a causal link.[9]
Admittedly, if all it takes to establish Whatley (3) is to offer proof that the alleged adverse action was taken some six to seven months after the protected action or its settlement, this court may have erred. If, however, the "timing" must be considered only as one factor among the total circumstances, the court is of the opinion that its decision was correct.[10] If a timing element alone, without regard to its real significance under the circumstances, is to be mechanistically deemed to raise an inference which must be rebutted, it will likely make the decision of this court and other *217 courts much easier in the future.[11]
DONE and ORDERED.
NOTES
[1]  While the cases cited related to Title VII claims, the same principle would obviously be applicable to an ADEA retaliation claim.
[2]  Although Dickerson was apparently tried to a conclusion, the court refers to plaintiff's failure to establish a prima facie case.
[3]  While the court cannot fully understand what evidence is necessary to establish that Whatley (1) and Whatley (2) were not "wholly unrelated," the court is satisfied that merely proving (1) and (2) are not sufficient. See discussion of evidence infra.
[4]  In Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir.1980) cited in Donnellon in connection with the "timing" issue, the court stated: "It is a strong case. The evidence shows that Munson initially called Womack in upon learning of the lawsuit, before Womack had made any admission. At that meeting, Munson told Womack that he wanted him to leave because his continued employment in the prosecutor's office was an embarrassment. Within five days of this discussion, Womack was suspended; within twenty days, he was fired." (Emphasis added). The trial court had held that the timing justified an inference of retaliatory motive. 619 F.2d at 1296, note 6. The real issue is whether there is a reasonable inference under the circumstances. Here the initial charges didn't result in a request for resignation, suspension, or discharge. The initial charge was "settled" after a conciliation effort. The "timing" arose out of the need to comply in some fashion with the settlement agreement. It did not arise "out of the blue."
[5]  Arguably a stronger inference of retaliation could be created by a subtle delay between the protected action and the alleged adverse action.
[6]  The significance of requiring that plaintiffs be required to initially demonstrate some reasonable inference of retaliation is illustrated by this case. At one time, plaintiff listed some 650 witnesses which she "may call." This was later significantly reduced, but it suggests the extent to which such cases may mount based upon minimal evidence. Without even a reasonable inference initially raised by plaintiff, the defendant could have been put to additional days of trial even though plaintiff raised no reasonable inference of retaliation under the circumstances, but apparently relied solely on the fact that the decision was made shortly after the "settlement." The settlement required the decision. If plaintiff had 650 potential witnesses, surely one of them could have offered at least prima facie evidence of (3).
[7]  Plaintiff admitted to the court, on question, that she did not have "100% proof, "that defendants' decision maker(s) connived with the complaining customers. Plaintiff did not suggest any such proof.
[8]  Plaintiff has acknowledged that, technically, defendant would have complied with the settlement agreement by assigning her anywhere in the south zone, which it did.
[9]  Plaintiff has suggested, that Townsend's involvement in both the settlement and the subsequent "adverse" action creates some inference of retaliation. It would be more usual than not that employment decisions made within a short time would all have the participation of the same supervisor. Further, the action of requiring the complaints to be in writing is indicative of precaution under the circumstances, but not discrimination.
[10]  The fact that the assignment decision was made at an agreed upon time substantially dilutes, if not totally refutes, the "timeliness" issue. The action taken was taken at an agreed upon time. While the circumstances surrounding the decision, if proof had been offered, may have created a reasonable inference of causal link, the timing itself, being agreed upon, could not do so.
[11]  Although the court is relatively satisfied that merely assigning the plaintiff to the "south zone" as agreed was not sufficient in and of itself to defeat a claim of retaliation, the court has not reconsidered that issue for the purposes of this motion. While the court has assumed, arguendo, that plaintiff has offered sufficient evidence of Whatley (2), the court has not focused on that issue.


537 U.S. 1037
MARTINEZ-LAREDO, AKA MARTINEZv.UNITED STATES.
No. 02-6853.
Supreme Court of United States.
November 18, 2002.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

2
C. A. 5th Cir. Certiorari denied. Reported below: 45 Fed. Appx. 326.


NO. 07-06-0185-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

OCTOBER 16, 2007

______________________________

JEREMY LeCLEAR, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 242ND  DISTRICT COURT OF SWISHER COUNTY;

NO. B965-0508; HONORABLE ED SELF, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

	Appellant, Jeremy LeClear, was convicted by a jury of hindering the apprehension of
a convicted felon, Tina Clayton, also known as Tina LeClear, and sentenced to five years
imprisonment and fined $2,500.  Appellant contends (1) the evidence was factually
insufficient to support the conviction, and the trial court erred in (2) admitting certain
evidence, (3) not submitting to the jury a lesser included offense charge, and (4) denying his
motion for mistrial.  We affirm.
Background

	Tina LeClear was arrested, charged, and convicted in Curry County, New Mexico, of
the offense of possession of a controlled substance, a felony, and possession of a controlled
substance, a misdemeanor.  On August 12, 2004, she failed to appear for sentencing on
those charges and a bench warrant was issued by the Ninth Judicial District Court located
in Clovis, Curry County, New Mexico, for her arrest.  The bench warrant indicated that the
State of New Mexico would extradite.
	On July 6, 2005, the Swisher County Sheriff's Office sent a teletype to the Curry
County Sheriff's Office to confirm that the warrant for the arrest of Tina LeClear was valid
and active.  The Curry County Sheriff's Office returned a teletype confirming that the warrant
was valid and that the State of New Mexico would still extradite.  Subsequently, the Curry
County Sheriff's Office faxed a copy of the bench warrant to the Swisher County Sheriff's
Office.
	After receiving the teletypes and bench warrant, Chief Deputy Benavidez of the
Swisher County Sheriff's Office went to Appellant's residence for the purpose of executing
the bench warrant.  When he arrived at the residence, he observed that the ground was
muddy due to an early morning rain.  He also observed recent tire tracks made by an
automobile traveling from the front of the residence to the rear of the residence.
	Benavidez approached the residence and knocked on the front door.  He waited
several minutes and received no response.  He then went around to the rear of the
residence and knocked on the back door.  He could hear music coming from a radio inside
the house.  He observed a parked vehicle with two sets of footprints imprinted in the mud.
One set of footprints exited the vehicle from the driver's side, and the other set of footprints
exited from the passenger side.  One set of footprints was bigger than the other, and both
sets of footprints led to the back porch.  There were no footprints leading away from the back
porch.  Receiving no response, Benavidez returned to his patrol car, waited further and then
drove one-half mile up the road where he pulled over in a position where he could observe
the residence.  He then called for backup.
	Deputy Tucker arrived and the two deputies pulled into the driveway where they were
met by Appellant.  Appellant had exited the house through the front door and appeared
nervous.  Benavidez informed Appellant that a felony bench warrant out of Curry County,
New Mexico had been issued for Tina LeClear's arrest.  Asked if he knew of her
whereabouts, Appellant replied that he had not seen Tina for two years.
	Benavidez then asked Appellant if he would allow the deputies to search his house
to verify that Tina was not there.  Appellant responded that the house was locked and he did
not have keys to enter.  Appellant was holding a set of keys.  Benavidez asked where the
keys to the house were, and Appellant responded that the residence was his mother's
house.  Appellant then asked if he could re-enter the house to call his mother.  The deputies
agreed and Appellant re-entered the residence using the keys he was holding in his hand.
	After fifteen to twenty minutes, Appellant exited the front door and gave the deputies
permission to search the house.  The deputies failed to find Tina in the house, exited the
residence, and then conducted a search of a shed and barn.  She was not located in either
building.  Benavidez then placed a call seeking assistance from Garry Walsmith, an
undercover officer for the Department of Public Safety.
	Walsmith arrived accompanied by DPS Sergeant Bobby Tyler.  Walsmith asked
Appellant if Tina was in the residence, and Appellant responded that he had not seen her
for six weeks and that she was in Chicago.  Walsmith asked Appellant if he would consent
to them searching the house, and Appellant consented.
	Walsmith and Tyler entered the residence.  When they entered the master bedroom,
they observed a closet.  When they entered the closet, the DPS officers observed a pile of
shoes placed in one corner, and a pile of clothes in the other corner.  They removed the
clothes and shoes, lifted the carpet, and found an entry leading to a crawlspace underneath
the house.  Tyler looked into the crawlspace and observed Tina LeClear approximately ten
feet from the entryway.  Walsmith further testified that it was not possible for any person who
had entered the crawlspace to have closed the wooden cover and then piled the clothes and
shoes atop the carpet concealing the entryway.  He also testified that he had looked
underneath the house with a flashlight and did not observe any other entry or exit point for
the crawlspace.

Issue One

 Appellant contends the State's evidence was factually insufficient to establish the
elements of the felony offense of hindering apprehension or prosecution under § 38.05 of
the Texas Penal Code.  Specifically, Appellant asserts the State made no showing that Tina
LeClear's arrest was for an "offense" against the laws of the State of Texas or the State of
New Mexico as contemplated by § 38.05.  Appellant further argues that the State failed to
establish that the person harbored or concealed was under arrest for, charged with, or
convicted of an offense classified as a felony.  We disagree.
	When conducting a factual sufficiency review, we examine all the evidence in a
neutral light and determine whether the jury was rationally justified in finding guilt beyond a
reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004), overruled
in part by Watson v. State, 204 S.W.3d 404, 415-17 (Tex.Crim.App. 2006).  In performing
a factual sufficiency review, we are to give deference to the factfinder's determinations if
supported by the record.  Watson, 204 S.W.3d at 417.  We cannot reverse a conviction
unless we find some objective basis in the record that demonstrates that the great weight
and preponderance of the evidence contradicts the jury's verdict.  Id.  The criminal verdict
will be set aside "only if the evidence is so weak that the verdict is clearly wrong and
manifestly unjust, or the contrary evidence so strong that the standard of proof beyond a
reasonable doubt could not have been met."  Garza v. State, 213 S.W.3d 338, 343
(Tex.Crim.App. 2007).  In other words, we cannot conclude that Appellant's conviction is
"clearly wrong" or "manifestly unjust" simply because we disagree with the jury's verdict.
Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).  Additionally, an appellate opinion
addressing factual sufficiency must include a discussion of the most important evidence that
the appellant claims undermines the jury's verdict.   Sims v. State, 99 S.W.3d 600, 603
(Tex.Crim.App. 2003); Roberts v. State, 221 S.W.3d 659, 665 (Tex.Crim.App. 2007).
 As it pertains to the indictment in this case, the offense of hindering apprehension or
prosecution is defined as follows:
	(a)	A person commits an offense if, with the intent to hinder the
arrest, prosecution, conviction, or punishment of another for an
offense . . . he:  (1) harbors or conceals the other; . . . .

*   *   *

	(c)	An offense under this section is a Class A misdemeanor, except
that  the offense is a felony of the third degree if the person who
is harbored, concealed, . . . is under arrest for, charged with, or
convicted of a felony . . . and the person charged under this
section knew that the person they harbored, concealed, . . . is
under arrest for, charged with, or convicted of a felony. . . .

Tex. Penal Code Ann. § 38.05 (Vernon 2003). (1)
  The indictment in this case alleged, in
relevant part, that Appellant did "harbor or conceal Tina LeClear a/k/a Tina Clayton, and the
[Appellant] knew that the said Tina LeClear a/k/a Tina Clayton was charged with a felony,
namely, Possession of Controlled Substance, . . . ."    Thus, to satisfy its burden, the State
was required to establish that (1) Appellant, (2) with intent to hinder the arrest, prosecution,
conviction or punishment of Tina LeClear for an offense, (3) harbored or concealed her.
Furthermore, to satisfy its burden of proving a felony offense, the State was required to
additionally establish that Appellant knew Tina LeClear was under arrest for, charged with,
or convicted of an offense classified as a felony.
	Appellant's attack is three-fold.  First, Appellant contends the State failed to show that
the arrest of Tina LeClear was for "an offense" because Tina had already been found guilty
of the offense of possession of a controlled substance. (2)  Next, Appellant contends the State
failed to prove that "failure to appear" for sentencing was an offense.  Finally, Appellant
contends the State failed to prove that "failure to appear" is a felony offense under the law
applicable to her arrest, to-wit: New Mexico law.
	Relying upon the authority of Key v. State, 800 S.W.2d 229 (Tex.App.-Tyler 1990, no
pet.), Appellant contends that because Tina LeClear had already been convicted of
possession of a controlled substance, failure to appear for sentencing did not constitute "an
offense"; therefore, the State failed to prove an essential element of hindering apprehension.
We disagree.  The State introduced evidence that Tina was wanted on a bench warrant for
failure to appear for sentencing.  When a person is arrested for failure to appear for
sentencing, for purposes of § 38.05, apprehension is for the same offense for which that
person was previously convicted.  King v. State, 76 S.W.3d 659, 662 (Tex.App.-Houston
[14th Dist.] 2002, pet. ref'd).
	Tina LeClear's arrest was pursuant to a bench warrant which was not issued with
respect to the commission of the new offense of failure to appear; but was, instead, issued
incident to the same cause numbers and pursuant to the original proceedings pending in
Cause Nos. D-905-CR-0200200580 and D-905-CR-0200400075  for possession of a
controlled substance, a felony, and possession of a controlled substance, a misdemeanor.
The evidence is sufficient to show that Tina LeClear was arrested for "an offense" and from
that evidence the jury could have reasonably found that the essential elements of hindering
apprehension were established beyond a reasonable doubt.  Thus, from a review of the most
important and relevant evidence discussed hereinabove, we cannot conclude under Watson,
that Appellant's conviction was "clearly wrong" or "manifestly unjust."  Issue one is overruled.Issue Two
	Appellant's second issue argues the trial court erred by overruling his hearsay
objection to State's Exhibits 1, 2, 3, a series of teletypes between the Swisher County
Sheriff's Office and the Curry County Sheriff's Office.  We disagree.
	We review a trial court's decision to admit or exclude evidence for abuse of discretion;
Page v. State, 213 S.W.3d 332, 337 (Tex.Crim.App. 2006), and "[a]ppellate courts will
uphold a trial court's ruling on admissibility of evidence as long as the trial court's ruling was
at least within the zone of reasonable disagreement."  Id.  See Hernandez v. State, 205
S.W.3d 555, 558 (Tex.App.--Amarillo 2006, pet. ref'd).
	At trial, Benavidez testified that he recognized the teletypes as confirmation that there
was a valid warrant pending for Tina LeClear's arrest out of Curry County, New Mexico.  He
also testified the teletypes were true and correct copies and were kept in the regular course
of business as a law enforcement officer.  On its face, Benavidez's testimony supplied the
predicate for admission of the teletypes pursuant to Rule 803(6) of the Texas Rules of
Evidence.
	Appellant's objection is that Benavidez's testimony is deficient because he is not a
record custodian, i.e. does not keep the records, is not a records clerk, or has anything to
do with the records.  In Melendez v. State, 194 S.W.3d 641, 644 (Tex.App.--Houston [14th
Dist.] 2006, pet. ref'd), the Court stated:
	[T]he predicate for the business records exception to the hearsay rule may be
established either by the custodian of the records or another qualified witness.
Tex. R. Evid. 803(6).  Rule 803(6) does not require that the witness be the
person who made the record or even be employed by the organization that
made or maintained the record, and appellant cites no authority imposing any
such requirement.

	Benavidez supplied the necessary predicate for admission of the teletypes and
Appellant has offered no evidence to show either that Benavidez was not a qualified witness
or his testimony was not trustworthy.  There simply is no requirement under Rule 803(6) that
Benavidez be a record custodian or person in charge of keeping the record.  Thus we find
no error in admitting the exhibits.
	Alternatively, if the evidence was improperly admitted, the error was cured through
Benavidez's unobjected to testimony relating to the events that transpired on the morning
of July 6, 2005, and the subsequent unopposed admission of the bench warrant.  Error in
the admission of evidence is cured where the same evidence comes in elsewhere without
objection, either before of after the complained-of ruling.  Lane v. State, 151 S.W.3d 188,
192-93 (Tex.Crim.App. 2004).  See Murphy v. State, 229 S.W.3d 334, 343 (Tex.App.--Amarillo 2006, pet. ref'd).   Issue two is overruled.
Issue Three
	Appellant contends the trial court erred by failing to charge the jury on the lesser-
included offense of hindering apprehension, a misdemeanor pursuant to § 38.05(c).
Specifically, Appellant contends he was entitled to a charge on the lesser-included offense
because the State failed to present any specific evidence to establish whether Tina LeClear's
failure to appear was a felony or misdemeanor under New Mexico law.  We disagree.
	 Under the Texas Code of Criminal Procedure, an offense is a lesser-included offense
if it is established by proof of the same or less than all the facts required to establish the
commission of the offense charged.  Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006).
A defendant is entitled to a lesser-included offense jury charge if: (1) the requested charge
is a lesser-included offense of the offense charged, and (2) there is some evidence that if
the defendant is guilty, he is guilty only of the lesser offense.  Guzman v. State, 188 S.W.3d
185, 188 (Tex.Crim.App. 2006) (emphasis added).  The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense.  McKinney v. State,
207 S.W.3d 366, 370 (Tex.Crim.App. 2006).
	The first prong of this test requires that we compare the elements of the two offenses
to determine if the requested charge is a lesser-included offense of the offense charged.
The elements of hindering apprehension or prosecution contained in  § 38.05(a) must be
proven whether conviction is sought for a Class A misdemeanor or a felony of the third
degree.  See § 38.05(a) & (c).  To raise the offense from a misdemeanor to a felony, the
State must additionally prove that (1) the person harbored or concealed is under arrest for,
charged with, or convicted of a felony, and (2) the accused knew the person harbored or
concealed was under arrest for, charged with, or convicted of a felony.  § 38.05(c).  Thus,
because the difference between the offense as charged and the lesser offense charge
requested by Appellant is established by proof of the same or less than all the facts required
to establish the commission of the offense charged, the Class A misdemeanor offense of
hindering apprehension or prosecution is a  lesser-included offense of the felony offense of
hindering apprehension or prosecution.
	The second prong of the test then requires that we determine whether there is some
evidence that would permit a jury to rationally find, if Appellant is guilty, he is guilty only of
the lesser offense.  As discussed hereinabove, the record is replete with evidence that
Benavidez and Tucker arrested Tina LeClear pursuant to a warrant that issued out of Curry
County, New Mexico, incident to the original offense of felony possession of a controlled
substance.  Furthermore, the undisputed evidence establishes that Appellant was told that
Tina LeClear was a fugitive incident to a charge, arrest, or conviction of a felony offense.
	Appellant has not identified, and we cannot find any evidence adduced at trial that
would indicate that Appellant did not know that Tina LeClear was being sought in connection
with a felony warrant issued incident to a charge, arrest, or conviction of a felony offense.
Thus, Appellant has failed to establish that the lesser-included offense is a valid rational
alternative to the offense charged, and the trial court did not err by refusing the instruction
on the lesser-included offense.  See Powell v. State, 206 S.W.3d 142-43 (Tex.App.-Waco
2006, pet. ref'd).  Appellant's third issue is overruled.Issue Four
	By his fourth and final issue, Appellant contends the trial court erred in denying
Appellant's motion for mistrial.  In support, Appellant contends that, during the punishment
hearing, the State improperly attempted to inject that he had a prior felony conviction
because he was not making an application for probation.  We disagree.
	During the closing statement on punishment by the State, the following occurred:
	MR. HOCKER: Finally, you will notice that probation is not an option in this
case.  And the law in the State of Texas is that in order to be eligible for
probation, you have to be able to establish that you've never been convicted
of a felony in this state, any other state -

	MR. MCKINNEY: I object that this argument is not relevant before this jury.

	THE COURT: Sustained.

	MR. MCKINNEY: I'd ask for an instruction in that regard, Your Honor.

	THE COURT: All right.  Ladies and gentlemen, you will disregard that
argument.

	MR. MCKINNEY: I'd ask the Court to grant a motion - move for mistrial -
because that - I don't believe that instruction would cure that error.

	THE COURT: Denied.

	MR. HOCKER: What I'm saying to you, ladies and gentlemen, is that probation
is not an option in this case.  It is simply going to be a penitentiary time
sentence.

	MR. MCKINNEY: He's arguing behind the Court's ruling now.

	THE COURT: Sustained.

	MCKINNEY: May I have an instruction?

	THE COURT: You have the instruction.  You will disregard that argument.
Counsel, proceed to the next argument.

	MCKINNEY: I'd like to have a mistrial at this time.

	THE COURT: Denied.

	The issue before this Court is whether the trial court's refusal to grant the mistrial
constituted an abuse of discretion.  See Hawkins v. State, 135 S.W.3d 72, 76 (Tex.Crim.App.
2004).   To support such a finding by this Court, the jury argument must be extreme or
manifestly improper, or inject new and harmful facts into evidence to constitute reversible
error.  Shannon v. State, 942 S.W.2d 591, 597-98 (Tex.Crim.App. 1996).  In most cases, if
error occurs, either a withdrawal of the question or an instruction to disregard will cure any
error committed; id., and only in extreme circumstances, where the prejudice is incurable,
will a mistrial be required.  Hawkins, 135 S.W.3d at 77.  With these standards in mind, the
Court will apply the test tailored for punishment proceedings and balance three factors: (1)
the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty
of the punishment assessed absent the misconduct (likelihood of the same punishment
being assessed).  Id.
	The prosecutor's argument was inappropriate but not egregious.  In both instances,
the prosecutor correctly stated the law, i.e., probation was not a sentencing option for the
jury.  In addition, any inference that may have been drawn by the jury from the prosecutor's
statement that a prior felony conviction negates the possibility for probation was not
reversible error because the prosecutor had already given the jury a complete description
of Appellant's extraneous offenses without objection.  Furthermore, curative action was taken
by the court with two immediate instructions to disregard.  Finally, Appellant's sentence of
five years imprisonment and a $2500 fine was well within the statutory limits.  That Appellant
repeatedly lied to the arresting officers regarding when he had last seen Tina LeClear and
her whereabouts while surreptitiously concealing her in the residence's crawlspace
adequately explains the sentence handed down by the jury in this case.  Accordingly, we
conclude the trial court did not abuse its discretion in denying the request for a mistrial and
overrule Appellant's fourth issue.Conclusion
	Consequently, having overruled Appellant's four issues, we affirm the trial court's
judgment.
								Patrick A. Pirtle
								      Justice

Do not publish.

1. Because the Texas Penal Code does not define the term "offense"; see Tex. Penal Code
Ann. § 1.07 (Vernon 2003), the term must be defined by common usage unless the word has
acquired a technical or particular meaning.  Tex. Gov't Code Ann.  § 311.011 (Vernon 2005).  See
also Tex. Penal Code Ann. § 1.05(b) (Vernon 2003).  The common definition of "offense" is an
"infraction of the law"; Merriam-Webster's Collegiate Dictionary p. 861 (11th Ed. 2003), and an offense
may be designated either as a felony or misdemeanor.  18 Tex. Jur. 3d § 1254 (2001).  In fact, a
violation of an "offense" under § 38.05, may constitute a misdemeanor or felony depending on
whether the person harbored or concealed is under arrest for, charged with, or convicted of a felony.
2. Appellant's brief contends the State failed to establish an offense because Tina
LeClear had already been found guilty of the charge of possession of a controlled substance;
whereas, Appellant's oral arguments focused on the new offense of failure to appear.


                               SECOND DIVISION
                                ANDREWS, P. J.,
                             MCFADDEN and RAY, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/

                                                                    February 2, 2015

In the Court of Appeals of Georgia
 A14A2266. GEORGIA DEPARTMENT OF HUMAN SERVICES
     et al. v. DOUGHERTY COUNTY et al.

      RAY, Judge.

      Dougherty County, Georgia, and its sheriff, Kevin Sproul, (the “plaintiffs”)

filed a complaint in the Superior Court of Dougherty County against the Georgia

Department of Human Services and the Division of Child Support Services (the

“defendants”) seeking to recover statutory service of process fees for civil actions that

the defendants had initiated in that court. The defendants filed an answer by special

appearance and simultaneously moved to dismiss the complaint on various grounds,

including improper venue. The trial court denied the motion to dismiss and issued a

certificate of immediate review. The defendants now appeal. For the reasons

explained below, we reverse the trial court’s ruling on the issue of venue, vacate the
remaining portions of the trial court’s order, and remand the case with direction that

the case be transferred to the Superior Court of Fulton County for further proceedings

consistent with this opinion.

      1. The defendants contend that the trial court erred in denying their motion to

dismiss on the basis of improper venue. We agree.

      In this case, the plaintiffs allege that the defendants have failed to comply with

subsections (b) (1) and (g) of OCGA § 15-16-21, which requires the party who files

a civil action to pay the sheriff of that county a fee for serving a copy of process. As

the plaintiffs’ claim is against governmental agencies of the State of Georgia and

because the legislature has not carved out any venue exception for such a claim, we

find that the proper venue in this case lies in the county where the defendants reside

pursuant to Art. VI, Sec. II, Par. VI of the Georgia Constitution of 1983.

      Although the defendants maintain offices throughout the State of Georgia, their

principal offices are located in Fulton County. In making a determination of venue

based solely on the “residence” of a governmental department or agency, where there

is no applicable constitutional or statutory provision to establish venue elsewhere, we

have held that “it can hardly be denied that Fulton County, the site of the State

Capitol and seat of government as well as location of the principal offices of the

                                           2
[defendants], is an appropriate venue.” (Citation omitted.) Hoffman v. Dept. of

Corrections, 218 Ga. App. 363, 363 (460 SE2d 882) (1995).

      In its ruling on venue, the trial court relied, in part, on State Highway Dept. v.

Parker, 75 Ga. App. 237 (43 SE2d 172) (1947), for the proposition that any division

of state government that is present throughout the state “could be sued in any county

of Georgia.” Id. at 244. However, the trial court’s reliance on Parker is misplaced. In

that case, the issue was whether Parker could bring a cause of action directly against

the State Highway Department for damages occurring on a highway, when a statute

enacted in 1933 provided that the only way the Highway Department could become

liable for a tort was if the county had been named as the defendant and the county

brought the Highway Department into the case to defend the claim. Id. at 238-242.

In Parker, we noted that a statute enacted in 1943 allowed the plaintiffs to sue the

Highway Department directly for a tort and that such a claim could be brought in any

county in Georgia wherein the tort cause of action arose.1 Id. at 244-245. Parker is

inapplicable here because the instant case does not involve a tort claim.2

      1
       Prior to the 1943 statute, such claims could only be brought in the county of
residence of a member of the State Highway Board. Id. at 244.
      2
        Our legislature has since enacted OCGA § 50-21-28, which provides, in
pertinent part, that “[a]ll tort actions against the [S]tate . . . shall be brought in the

                                            3
      For the above reasons, the trial court erred in finding that venue was proper in

Dougherty County and in denying the defendants’ motion to dismiss on that basis.

      2. As venue did not lie in Dougherty County, the trial court did not have the

authority to rule on the other grounds raised in the defendants’ motion to dismiss. See

Koo Pil Chung v. Hair Trend USA, Inc., 322 Ga. App. 429, 432 (745 SE2d 681)

(2013) (“A trial court without venue lacks authority to issue an order or judgment,

and any such order or judgment is void”) (citation omitted). Accord Coastal

Transport, Inc. v. Tillery, 270 Ga. App. 135, 140 (3) (605 SE2d 865) (2004).

Therefore, the remaining portions of the trial court’s order are vacated.

      In their brief on the motion to dismiss, the defendants specified that proper

venue lies in Fulton County and they alternatively asked that the case be transferred

there. When it is determined that venue is improper, the appropriate response to a

motion to dismiss is to transfer the case to the proper venue. Coastal Transport, Inc.,

supra. Accordingly, we remand the case to the trial court with direction that it transfer

this case to the Superior Court of Fulton County to address the merits of the

defendants’ motion to dismiss.

state or superior court of the county wherein the loss occurred[.]”

                                           4
      3. Based on our holding in Divisions 1 and 2, we need not address the

defendants’ remaining enumerations of error.

      Judgment reversed in part and vacated in part, and case remanded with

direction. Andrews, P. J., and McFadden, J., concur.

                                        5