American Home Products Corporation and Wyeth-Ayerst Laboratories, a division of American Home Products Corporation, Petitioners

Fawn C. Clark, Sylvia Jacobson, Anna Kraus, Sharlet Laws, Nancy Webster, Donna Welch, Delia Zeeh, Carol Bodily, Mary Jo Hall, and Shonna Bush, Respondents

Justice Enoch, joined by Chief Justice Phillips, concurring.

I join the Court's opinion and judgment because the legal reasoning is correct and, therefore, the judgment is required. I write separately to express my concern about the trial court's role in this result.

By legislative enactment, if improper venue is the question, there is no interlocutory appeal. ⁽¹⁾ Nor is mandamus available, absent truly extraordinary circumstances, ⁽²⁾ because an appeal is available once trial has concluded, and improper venue is automatically reversible error. ⁽³⁾ This statutory scheme reflects a carefully crafted legislative compromise between plaintiffs' and defendants' conflicting interests: defendants cannot delay a trial through an interlocutory appeal, but a plaintiff who secures a trial in an improper venue faces reversal after that trial. ⁽⁴⁾ In 1995, the Legislature carved out the narrow exception for joinder decisions that the Court examines today, but, as the Court correctly determines, this exception does not permit an interlocutory appeal for venue rulings simply because they are related to joinder. ⁽⁵⁾ To rule as the dissent would, while bolstering the legislative response to Polaris Investment Management Corp. v. Abascal, ⁽⁶⁾ essentially would undo the careful compromise reached on venue. But as this case demonstrates, potential mischief is abundant - a trial court, actually addressing joinder, can insulate its order from appellate scrutiny simply by holding that each plaintiff has independently established venue, even though such a holding on the record presented is clearly wrong.

The plaintiffs' pleadings here are obtuse, perhaps intentionally so, with respect to who is suing whom for what. An example is this excerpt:

42. Plaintiffs bring this cause of action [Negligent misrepresentation] against all defendants, including the doctor defendants. . . .

Yet only one doctor is named in the pleadings as a defendant, and only one of the eleven plaintiffs is alleged to have been treated by that doctor.

Having explored the pleadings, it is evident to me that only one plaintiff had a claim against the one resident defendant, the doctor. Thus, venue is independently appropriate in Johnson County only as to that one plaintiff. ⁽⁷⁾ In fact, in opposing the other defendants' efforts to have the remaining plaintiffs' claims severed and transferred to another county, the remaining plaintiffs argued only that venue was proper because joinder with the one plaintiff's action was proper. It therefore baffles me why the trial court would sign an order concluding that venue was established independently as to each plaintiff.

This action not only baffles me, it troubles me greatly. To begin with, it seems to me that joinder of the claims in this case may arguably be proper. Had the order rested on that ground, appellate review would be immediately available and the issues could be quickly and appropriately resolved. But the trial court opted instead for a controversial decision, which by depriving a party of the opportunity for appellate review could undermine the appearance of impartiality so critical to the parties' confidence in and acceptance of the court's authority.

In the end, as the record thus far demonstrates, venue likely will not be independently established as to each of these plaintiffs. And because improper venue is mandatorily reversible, the trial of this case will likely be a waste of time. ⁽⁸⁾ Nevertheless, I am compelled to conclude, as the Court does, that the court of appeals correctly dismissed American Home's appeal for want of jurisdiction.

______________________________

Craig T. Enoch

Justice

Opinion delivered: December 21, 2000

1. Tex. Civ. Prac. & Rem. Code § 15.064(a).

2. See In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999); Polaris Inv. Mgmt. Corp. v. Abascal, 892 S.W.2d 860, 862 (Tex. 1995).

3. Tex. Civ. Prac. & Rem. Code § 15.064(b).

4. See Price, New Texas Venue Statute: Legislative History, 15 St. Mary's L. J. 855, 875-878 (1984); see also Wilson v. Texas Parks & Wildlife Dep't, 886 S.W.2d 259, 262 (Tex. 1994).

5. Tex. Civ. Prac. & Rem. Code § 15.003(c), added by Acts 1995, 74^th Leg., ch. 138, § 1.

6. 892 S.W.2d 860 (Tex. 1995).

7. See id. § 15.002(a).

8. Id. § 15.064(b).