Javier RUIZ, Petitioner, v. CONOCO, INC., Respondent, 868 S.W.2d 752

OPINION ON REHEARING HECHT, Justice. The motion for rehearing of Conoco, Inc. is granted, and our prior opinion is withdrawn. This is now the opinion of the Court.

This case presents four principal questions: (1) is limitations tolled on a cause of action of a person of unsound mind during the pendency of a lawsuit brought on his behalf? (2) does the involuntary dismissal of an action for want of prosecution while a motion to transfer venue to another county is pending fix venue in that other county? (3) is appellate review of a venue determination limited to whether the trial court abused its discretion in ruling on the motion to transfer, or does it extend to whether the venue issue was in fact properly decided based upon the entire record in the trial court? and (4) for a foreign corporation to be sued in a county where it has an agent or representative, must that person have broad discretionary authority to act for the corporation?

The trial court held that this action is not barred by limitations, and that venue was proper in Starr County. The court of appeals affirmed as to limitations but reversed as to venue. 818 S.W.2d 118 (1991). We affirm. I Javier Ruiz, a resident of Hidalgo County, sustained severe and permanent head injuries in Webb County while working for Cameron Iron Works, Inc. on an oil well owned by Conoco, Inc. Ruiz and his wife filed suit in Harris County against Cameron, which immediately joined Conoco as a third-party defendant. Ruiz and his wife later sued Co-noco in Zapata County.

Both suits were dismissed, the former for discovery abuse and the latter for want of prosecution. Thereafter, suit was filed in Hidalgo County for an adjudication that Ruiz was mentally incompetent, no such action having previously been filed. Ruiz was adjudged incompetent from the date of his accident, and his wife was appointed guardian of his estate and person. Ruiz then sued Conoco in Starr County through his wife as his newly appointed guardian. The present appeal arises out of this third lawsuit. Conoco moved for

summary judgment on the grounds that the Starr County action is barred by limitations.

The dates of the events just described, important to the limitations issue, are as follows: 1/24/84 Ruiz injured 1/13/86 Ruiz sued Cameron in Harris County eleven days before the expiration of two years from the date of his accident 1/26/87 Ruiz sued Conoco in Zapata County more than three years after his accident 4/21/87 Zapata County suit dismissed after it had been pending less than three months 4/29/88 Harris County suit dismissed after it had been pending more than twenty-five months 1/6/89 Ruiz adjudicated mentally incompetent from the date of his accident 9/22/89 Ruiz sued Conoco in Starr County through his newly appointed guardian The trial court denied Conoco’s motion for

summary judgment, holding that Ruiz’ legal disability tolled the running of limitations. Conoco also moved to transfer venue of Ruiz’ action from Starr County to Harris County. Conoco is a Delaware corporation with its principal office in Harris County. In the Zapata County suit, Conoco moved to transfer venue to Harris County, and that motion remained pending when the action was dismissed for want of prosecution. Co-noco contends that the pendency of its motion to transfer at the time of dismissal fixed venue in Harris County.

Conoco also contends that venue was improper in Starr County because it had no “agency or representative” there. The trial court rejected both contentions and denied Conoco’s motion. Midway through the trial the parties reached an agreement with the trial court’s approval pursuant to which the evidence was closed, the jury was discharged, the trial court rendered judgment against Conoco for $4.5 million, and Conoco paid Ruiz’ wife, children and attorneys $450,000.

Conoco did not agree to the judgment but simply did not object to its rendition, preserving its right of appeal, but agreeing to limit that appeal to two issues, limitations and venue. The parties expressly contemplated that if Conoco ultimately prevailed on either issue, the Starr County judgment would be reversed; that if it prevailed on the limitations issue, judgment would be rendered that Ruiz recover nothing; and that if Conoco prevailed on the venue issue, the case would be remanded and transferred to a district court in Harris County for further proceedings.

The court of appeals held that Ruiz’ suit was not barred by limitations, but that venue was not proper in Starr County. Consequently, the court of appeals reversed and remanded, ordering that the case be transferred to Harris County. 818 S.W.2d 118. Both Ruiz and Conoco appeal. II By prescription of the applicable statute. of limitations, Ruiz’ action must be brought within two years of the date it accrued. Tex.Civ.PRAC. & Rem.Code § 16.003 (1986).

Since Ruiz’ action accrued on the date of his injury, and the present action was not filed until well over five years later, the action is barred unless the running of the limitations period was tolled. Ruiz claims that the limitations period in

section 16.003 was tolled by his mental incompetency according to the provisions of

section 16.001 of the same subehapter, which states in pertinent part: (

a) For the purposes of this subchapter, a person is under a legal disability if the person is: (1) younger than 18 years of age, regardless of whether the person is married; or (2) of unsound mind. (

b) If a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in a limitations period. Conoco concedes that Ruiz was under a legal disability — mental incompetency — from the date of his accident, but argues that limitations should have been tolled only during periods when Ruiz did not have access to the courts to assert his rights. Specifically, Co-noco argues that limitations was not tolled while the Harris County and Zapata County suits were pending, a period exceeding two years.

Thus, Conoco contends, Ruiz’ action is barred by limitations. Texas courts have had only limited opportunities to consider the effect of the tolling provision now codified as

section 16.001. Its general purpose has been stated as follows: [T]o protect a legally disabled party who has no access to the courts, and to insure that his right to bring suit will not be precluded by the running of a limitations statute prior to the removal of his disability. Johnson v. McLean, 630 S.W.2d 790, 793 (Tex.App.—Houston [1st Dist.] 1982, no writ) (emphasis added); see also Smith v. Erhard, 715 S.W.2d 707, 708 (Tex.App.-Austin 1986, writ ref'd n.r.e.); Adler v. Beverly Hills Hosp., 594 S.W.2d 153, 158 (Tex.Civ.App.-Dallas 1980, no writ).

Conoco focuses on the “no access to the courts” language of Johnson, arguing that Ruiz did in fact have such access and therefore the purpose for tolling limitations was served. We do not construe the tolling provision so narrowly. In Johnson, a prisoner sued his former attorney but did not exercise due diligence in serving him with process. The trial court held that Johnson’s action was barred by limitations. Johnson argued that the tolling provision relieved him of the requirement of due diligence in prosecuting and pursuing his claim as long as he was incarcerated.

At the time, imprisonment was included as a legal disability under the statute. The court of appeals agreed with the trial court, holding that “inasmuch as appellant timely filed his lawsuit during his period of legal disability, the protective provisions of [the tolling statute] do not apply.” 630 S.W.2d at 793 (emphasis added). The reasoning in Johnson — that access in fact to the courts suspends a legal disability — has not been utilized in cases involving minors. See Greathouse v. Fort Worth & Denver City Ry., 65 S.W.2d 762, 765 (Tex.Comm’n App.1933, holding approved); Hopkins v.

Spring Indep.Sch.Dist., 706 S.W.2d 325, 326 (Tex.App.-Houston [14th Dist] 1986), aff'd, 736 S.W.2d 617 (Tex.1987); Galveston, H. & S.A. Ry. v. Washington, 25 Tex.Civ.App. 600, 63 S.W. 538 (1901, no writ). We have compared the legal disabilities of minority status and mental incapacity: It is impossible to avoid the analogy between the situation of the child plaintiff ... and the arguably incompetent plaintiff in this case.

Traditionally the interests of minors, incompetents, and other helpless persons are viewed in law as substantially similar, and both the substantive law and the rules of procedure accord them comparable treatment. In many respects, mentally incompetent persons present a more compelling case for legal protection. They are frequently less communicative, more vulnerable and dependent than children. ... The mentally incompetent are less likely than children to have someone intimately interested in their welfare and inclined to act in their behalf. Tinkle v.

Henderson, 730 S.W.2d 163, 166 (Tex.App.-Tyler 1987, writ ref'd). Access to the courts does not alone provide a legally incapacitated person a viable opportunity to protect his legal rights. The disability of a person of unsound mind is not only the lack of access to the courts, but also the inability to participate in, control, or even understand the progression and disposition of their lawsuit.

Whatever validity may remain in Johnson as it applies to prisoners, the purpose and scope of the tolling provision, as applied to minors and persons of unsound mind, extends beyond merely ensuring their access to the courts. See O’Brien v. Massachusetts Bay Transp. Auth., 405 Mass. 439, 541 N.E.2d 334, 337 (1989) (“[I]t is plain that the disabilities to which the Legislature is referring are the disabilities of minority or mental incapacity themselves, not the disability to bring suit.”); Sahf v. Lake Havasu City Ass’n for Retarded & Handicapped, 150 Ariz. 50, 721 P.2d 1177, 1182 (Ct.App.1986); Paavola v. St.

Joseph Hosp. Corp., 119 Mich.App. 10, 325 N.W.2d 609, 611 (1982); Wolf v. United States, 10 F.Supp. 899, 900 (S.D.N.Y.1935) (“The view is taken that the Legislature had in mind, not merely the inability to sue, but also the difficulties of the incompetent in giving information and in testifying.”). For these reasons, we conclude that the mere commencement of a lawsuit by, or on behalf of, a legally incapacitated individual is, considered alone, insufficient to deny the protection of the tolling provision. In reaching this conclusion, we follow what we believe to be the well-established majority rule.

As noted in Luchini v. Harsany, 98 Or.App. 217, 779 P.2d 1053, 1056 (1989): It is the established rule in the majority of jurisdictions deciding the issue that the mere commencement of litigation has no effect on a tolling statute- The majority continues to hold that the extension created for minors, prisoners and the mentally handicapped is not terminated by the commencement of litigation by the representative. See Van Buskirk v. Todd, 269 Cal.App.2d 680, 75 Cal.Rptr. 280, 286 (1969), quoting M.C.

Dransfield, Annotation, Appointment of Guardian for Incompetent or for Infant as Affecting Running of Statute of Limitations Against Ward, 86 A.L.R.2d 965, 976 (1962) (“[I]f ... [the guardian ad litem,] having instituted an action within the statutory period, discontinues it, the rights of the infant are not prejudiced thereby, and he may still take advantage of his disability, the action not being barred until the lapse of the statutory period after he becomes of age.”); Tzolov v.

International Jet Leasing, Inc., 232 Cal.App.3d 117, 283 Cal.Rptr. 314, 317-18 (1991) (“By virtue of Tzolov’s incompetence the limitation period has not run, notwithstanding appointment of a guardian ad litem and the filing and subsequent dismissal of the first action.”); Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 770 P.2d 182, 186 (1989); Jean E. Maess, Annotation, Tolling of State Statute of Limitations in favor of One Commencing Action Despite Existing Disability, 30 A.L.R.4th 1092, 1093 (1984). See also Holley v. Mandate Realty Corp., 121 A.D.2d 202, 503 N.Y.S.2d 350, 352 (1986); Smith v.

Bordelove, 63 Mich.App. 384, 234 N.W.2d 535, 537 (1975); Carr v. Allied Aviation Serv. Corp., 40 A.D.2d 608, 335 N.Y.S.2d 914, 915 (1972). We are aware of “[t]he possibility that in a case such as this a limitation period may remain open for the lifetime of the plain-tiff_” Tzolov, 283 Cal.Rptr. at 317. However, this possibility does not dictate a different result: The tolling statute reflects a considered legislative judgment that in enumerated circumstances the strong policy in favor of prompt disposition of disputes must give way to the need to protect a plaintiff who is unable to protect himself or herself.

That need will continue so long as the plaintiff remains incompetent. Id. See Young, 770 P.2d at 187; O’Brien, 541 N.E.2d at 338; Sahf, 721 P.2d at 1182; Paavola, 325 N.W.2d at 611 (“a contrary holding would constitute unjustifiable tampering with the significant public policy clearly reflected in ... [the tolling provision concerning] the protection and preservation of the substantive rights of mentally incompetent persons”). This does not mean that an action commenced by, or on behalf of, a legally disabled individual can never be given preclusive effect. But we do not face such an issue here.

Ill Conoco argues that venue was improper in Starr County because the dismissal of the Zapata County suit for want of prosecution while its motion to transfer venue to Harris County was pending fixed venue in Harris County. We disagree. Under the old plea of privilege practice that existed before the venue statute and the rules were amended in 1983, a so-called “res judicata” rule was applied concerning venue. This rule stated that if a plaintiff dismissed a case by nonsuit while a plea of privilege was pending, venue was fixed in the county named in the plea. See Royal Petroleum Corp. v.

McCallum, 134 Tex. 643, 135 S.W.2d 958, 967 (1940); Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222, 224 (1943). The rule was not really one of res judicata; rather, the dismissal was deemed an admission of the merit of the plea of privilege. Id. We need not decide whether a similar rule is still applicable under the current venue statute and rules because there was no voluntary nonsuit in this instance. One cannot consider that a party whose action is involuntarily dismissed for want of prosecution has conceded the merits of pending motions.

When the suit is dismissed for want of prosecution while the motion to transfer venue is pending, it is not effective to fix venue in the county named in the motion to transfer venue. Consequently, we conclude that dismissal of Ruiz’ Zapata County suit for want of prosecution while Conoco’s motion to transfer venue was pending did not “fix” venue in Harris County. IV Before considering the denial of Co-noco’s motion to transfer venue based upon Conoco’s “agency or representative” in Starr County, we must first determine the appropriate standard for appellate review of such a trial court determination.

The 1983 revisions in Texas venue practice have resulted in some confusion concerning the appropriate standard of appellate review of venue determinations. One court has held that appellate courts should review venue determinations by a preponderance of the evidence standard. See Texas City Refining v. Conoco, Inc., 767 S.W.2d 183, 185 (Tex.App.-Houston [14th Dist.] 1989, writ denied). Others have limited review of venue determinations to the evidence before the trial court at the venue hearing. See Cooks v.

City of Gladewater, 808 S.W.2d 710, 715-16 (Tex.App.-Tyler 1991, no writ) (“our task here is to review the venue evidence before this court and determine whether appellant carried his burden to establish a prima facie case that venue was proper”); Kimmell v. Leoffler, 791 S.W.2d 648, 653 (Tex.App.-San Antonio 1990, writ denied) (“The district court properly determined, on the basis of the pleadings and affidavits before it, that venue should be transferred”); Flores v.

Arrieta, 790 S.W.2d 75, 77 (Tex.App.-San Antonio 1990, writ denied) (“appellant has failed in her burden of showing the trial court erred in granting the change of venue”); Lewis v. Exxon Co., U.S.A., 786 S.W.2d 724, 728 (Tex.App.-El Paso 1989, writ denied). Still others have not articulated a standard of review. See Humphrey v. May, 804 S.W.2d 328, 330 (Tex.App.-Austin 1991, writ denied); Miller v. Kendall, 804 S.W.2d 933, 943 (Tex.App.-Houston [1st Dist.] 1990, no writ); Kansas City Southern Ry. v. Carter, 778 S.W.2d 911, 915 (Tex.App.-Texarkana 1989, writ denied); Gonzalez v.

Nielson, 770 S.W.2d 99, 101-02 (Tex.App.-Corpus Christi 1989, writ denied); Cox Eng’g v. Funston Mach. & Supply, 749 S.W.2d 508, 511-12 (Tex.App.-Fort Worth 1988, no writ). The standard of appellate review is governed by Tbx.Civ.PRAc. & Rem.Code § 15.-064(b), which states: On appeal from the trial on the merits, if venue was improper it shall in no event be harmless error. In determining whether venue was or was not proper, the appellate court shall consider the entire record, including the trial on the merits. See Dan R. Price, New Texas Venue Statute: Legislative History, 15 St. Mary’s L.J. 855, 878-79 (1984).

The procedure mandated by this statute is fundamentally flawed because it allows appellate review of venue on a basis different from that on which it was decided. In deciding a motion to transfer venue, the trial court is required by Rule 87, Tex.R.Civ.

P., to take as true those facts of which prima facie proof is made by the party with the burden of such proof; yet in reviewing the trial court’s decision, an appellate court must reverse (there cannot be harmless error) if other evidence in the record, even evidence adduced after venue was determined, destroys the prima facie proof on which the trial court relied. Prima facie proof is not subject to rebuttal, cross-examination, impeachment or even disproof. The evidence as a whole may well show that prima facie proof was misleading or wrong.

But while the wisdom of the statute may be challenged, there is no misunderstanding its plain language: an appellate court is obliged to conduct an independent review of the entire record to determine whether venue was proper in the ultimate county of suit. See Price, supra, at 878-79. This review should be conducted like any other review of a trial court’s fact findings and legal rulings, except that the evidence need not be reviewed for factual sufficiency.

If there is probative evidence to support the trial court’s determination, even if the preponderance of the evidence is to the contrary, we believe the appellate court should defer to the trial court. A remand to reconsider the issue, which is the relief ordinarily afforded for factual insufficiency of the evidence, would only increase the expense and delay of litigation in order to resolve an issue which, though important, is unrelated to the merits.

Moreover, it exacerbates the difficulties already present in the rule if the appellate court decides, based on all the evidence, that the case should be remanded for a redetermination of venue, based on prima facie proof. (Would a second trial be required?) The statute does not mandate factual sufficiency review, and we believe it is neither necessary nor wise. Therefore, if there is any probative evidence in the entire record, including trial on the merits, that venue was proper in the county where judgment was rendered, the appellate court must uphold the trial court’s determination.

If there is no such evidence, the judgment must be reversed and the case remanded to the trial court. The error cannot be harmless, according to the statute. If there is any probative evidence that venue was proper in the county to which transfer was sought, the appellate court should instruct the trial court to transfer the case to that county. Only if there is no probative evidence that venue was proper either in the county of suit or in the county to which transfer was sought should the appellate court remand the case to the trial court to conduct further proceedings on the issue of venue.

This is one instance in which remand cannot be avoided. Rule 87(3)(d), Tex.R.Civ. P., contemplates that additional proof may be ordered in connection with a motion to transfer if neither party makes the required showing at first. In the unusual instance where there is no probative evidence in the record that venue is proper anywhere, a remand is unavoidable. The issue for us, then, is whether there is any probative evidence in the record to support the trial court’s determination that venue was proper in Starr County.

As in any other situation, we view the record in the light most favorable to the trial court’s ruling. We do not defer, however, to the trial court’s application of the law. Y Having determined the standard of review, we turn to the question whether venue was improper in Starr County because Conoco had no “agency or representative” there.

The only basis on which Ruiz asserts that venue was proper in Starr County is Tex.Civ.PRAC. & Rem.Code § 15.037, which states in pertinent part: “Foreign corporations ... not incorporated by the laws of this state, and doing business in this state, may be sued in any county in which ... the company may have an agency or representative. ...” We considered a similar provision in Milligan v. Southern Express, Inc., 151 Tex. 315, 250 S.W.2d 194 (1952). In that case the issue was whether a motor carrier corporation could be sued in a county in which it conducted business through an independent contractor.

The statute allowed suit against a corporation in the county in which the cause of action arose “provided such corporation ... has an agency or representative in such county_” Tex.Rev.Civ.Stat. art. 1995, subdivision 23 (repealed 1983). The issue we addressed was whether an “agency or representative” for purposes of venue included all persons for whose conduct a corporation might be liable, or only those persons who possess broader power and discretion to act on behalf of the corporation.

In concluding that only the latter category of persons was intended by the statute, we reasoned: the presence in the county of a mere servant, for example, a salaried employee to clean out dirty trailers, does not create there an agency for venue purposes, even though respondeat superior would obviously apply.

Conversely, the more or less permanent possession by a resident of the county of a broad power of attorney of the defendant might well make such a person an “agency or representative” even though his high position necessarily involved powers of discretion far beyond those of a servant and therefore similar to those of an independent contractor.... [W]e are dealing here not at all with liability of a principal for tortious conduct of the agent in the county of suit but simply with the matter of whether such an “agency or representative” there exists.

It cannot be doubted that these words considered alone have several different legal meanings, and there is no indication [in the venue statute] that agency in the sense of responsibility of the principal for tortious conduct of the agent was intended.

Rather, in our opinion, the statute refers to a situation in which the business of the defendant is, in a more or less regular and permanent form, actually conducted in the county of suit, or one in which a party possessing broad powers from the defendant resides in the county, the one instance being that of “agency5’ and the other of “representative.” 250 S.W.2d at 198 (emphasis added). Thus, venue against a corporation may be predicated upon the presence in a county of either an agency — a more or less regular and permanent business operation — or a representative with broad powers to act for the corporation.

As we held in Milligan, however, an ordinary employee is neither an agency nor a representative, even though the employer corporation may be liable for the employee’s tortious conduct. The missing element in an ordinary employee, essential for both types of persons in the venue statute, is possession of broad power and discretion to act for the corporation.

See 3 William DoRSáneo III, Texas Litigation Guide § 61.03[2][b], at 61-35 (1992) (“It is clear that an agent or representative must be shown to have discretionary power”); 2 McDonald Texas Civil PRACTICE § 6:20, at 48 (1992) (each term “connotes some discretionary power”); Clarence Guittard & John Tyler, Revision of the Texas Venus Statute: A Reform Long Overdue, 32 BayloR L.Rev. 563, 572 (1980) (“The test seems to be whether the ‘agency or representative’ has broad discretionary power to act for the corporation”). In this case the evidence is undisputed.

At the time venue was determined, Conoco had no principal business operation in Starr County. It kept an office there from which it oversaw the operation and maintenance of some 50 wells in the Rincon Field. Conoco had five permanent and one part-time employee in Starr County. The only employee who Ruiz argues possessed any discretion at all in the conduct of Conoco’s affairs was the production foreman, who, at the time his deposition was taken, lived in Hidalgo County and only worked in Starr County.

The sole discretionary power the foreman possessed was to authorize the purchase of parts and services in an amount not to exceed $500 from a supplier preapproved by his superiors. Most preapproved suppliers had standing, “blanket” contracts with Conoco governing provision of parts and services. The production foreman did not, as a matter of law, have the degree of discretion required to establish venue of Ruiz’ action in Starr County. While he did possess a small measure of discretion, he lacked all of the authority of the independent contractor we considered in Milligan.

Indeed, if venue could be predicated on the presence in a county of an employee like the production foreman here, many corporations would face suit in Texas counties far removed from any connection -with the litigation. Here, for example, Ruiz, a resident of Hidalgo County, was injured in Webb County while working on a well owned by Conoco, which has its principal office in Harris County. Starr County has nothing whatever to do with this litigation.

When the trial court asked Ruiz’ counsel whether he was forum shopping by filing suit in Starr County, he replied that he was, but only for the purpose of going to trial faster than he would in Harris County. Whatever counsel’s motives may have been, there is no basis for venue in Starr County. There is evidence that venue was proper in Harris County, since Conoco had its principal office there. Accordingly, the court of appeals was correct in reversing the judgment of the trial court and remanding the ease ■with directions that it be transferred to Harris County for further proceedings.

For the reasons explained, the judgment of the court of appeals is Affirmed. Concurring and dissenting opinion by HIGHTOWER, J., joined by DOGGETT, GAMMAGE and SPECTOR, JJ. . We note that this agreement does not moot an appeal because a real dispute remains between the litigants. We allowed an appeal in similar circumstances in Cain, Brogden & Cain, Inc. v. Local Union No. 47, 155 Tex. 304, 285 S.W.2d 942 (1956). . Imprisonment was deleted from the definition of legal disability in 1987. Act of June 19, 1987, 70th Leg., ch. 1049, § 56, 1987 Tex.Gen.Laws 3539.