Alcus Fortenberry
This morning the Texas Supreme Court will hear oral arguments in a venue dispute arising from a workers’ compensation case brought by a former player for the Dallas Cowboys.
Great Divide Insurance Company v. Alcus Reshod Fortenberry (No. 21-1047) arose from an appeal for judicial review of a decision of a Division of Workers’ Compensation adopting the hearing officer’s denial of Fortenberry’s claim. Following a jury trial, the trial court set aside the DWC panel’s decision and entered a judgment awarding Fortenberry temporary income benefits.
Great Divide, the workers’ compensation carrier, appealed. The Dallas Court of Appeals reversed and remanded to the trial court for further proceedings on the appropriate venue for the case. Fortenberry signed a three-year deal with the Cowboys in May 2015. He injured his knee at the team’s California training camp in August and was placed on injured reserve. The Cowboys released him the following year, but paid him injury protection payments for 2016 and 2017, the final year of his contract. Fortenberry filed a claim for workers’ compensation benefits, which Gret Divide denied. After the dispute resolution and administrative hearing process at DWC, the appeals panel ruled that Fortenberry did not have a compensable injury.
Fortenberry sought judicial review in Dallas County district court. He asserted that venue was proper in Dallas because he was a resident of Dallas County at the time of his injury. The insurer, however, filed a motion to transfer venue, arguing that Fortenberry was a resident of Mississippi at the time of his injury and that venue in Travis County, where Great Divide had a representative, was proper. Because Great Divide objected to Plaintiff’s choice of venue, Fortenberry had the burden to present prima facie proof that venue could be maintained in Dallas County. His “proof” consisted of an affidavit claiming an address in Irving, which turned out to be a Residence Inn that the Cowboys used to temporarily house players without residences in the local area. The court of appeals found that this affidavit did not qualify as prima facie proof “because it is unsupported by facts showing that he maintained that residence in Dallas County on the date of his injury in California.” Fortenberry further “failed to present prima facie proof to satisfy the residency requirements for venue purposes,” which require “(1) a fixed place of abode within the possession of the party, (2) occupied or intended to be occupied consistently over a substantial period of time, and (3) which is permanent rather than temporary” (citations omitted). In fact, Fortenberry produced no evidence of when or for how long he actually stayed at the hotel, which in any event could not constitute a “fixed abode.”
Fortenberry argued alternatively that his contract with the Cowboys specified Dallas County required the dispute to be adjudicated there and that Great Divide had a principal office in Irving. The court didn’t go for either of these arguments, as Great Divide’s Irving office did not contain any corporate decision-makers, just agents and representatives. By the same token, however, Great Divide could not establish venue in Travis County just because it designated a law firm in Austin as its statutorily required representative to the DWC. Because the law firm only served as Great Divide’s agent for notice and filing workers’ compensation-related documents with the agency, it did not meet the test for a principal office.
The court concluded that since neither party could establish proper venue, it had to send the case back to the trial court for further proceedings on the venue issue. For that reason, the court did not reach Great Divide’s other issues, which challenged the jury’s findings, the sufficiency of the evidence, the damages, and the trial court’s evidentiary rulings. Clearly, you don’t see many cases in which neither side could establish proper venue. If the case had gone back to the trial court as the court of appeals ordered, one wonders what kind of additional venue-related facts could be adduced that would make things any clearer. Keep in mind that this case went all the way through trial to judgment, which hypothetically will have to happen again if the trial court erred in its venue ruling. Perhaps SCOTX doesn’t think that’s a very good result in terms of the efficient administration of justice. At any rate, we’ll find out.
