Clear Diamond, Inc. and Kyle Wartenbee// Rebeca Zapata, Individually and as Representative of the Estate of Flavio Zapata, Estela Zapata, and Sergio Zapata Montoya v. Rebecca Zapata, Individually and as Representative of the Estate of Flavio Zapata // Cross-Appellee, Clear Diamond, Inc. and Kyle Wartenbee

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-20-00057-CV

Appellants, Clear Diamond, Inc. and Kyle Wartenbee //
Cross-Appellants, Rebeca Zapata, individually and as representative of the
Estate of Flavio Zapata; Estela Zapata; and Sergio Zapata Montoya

v.

Appellee, Rebecca Zapata, Individually and as Representative of the
Estate of Flavio Zapata // Cross-Appellees, Clear Diamond, Inc. and Kyle Wartenbee

FROM THE 452ND DISTRICT COURT OF MCCULLOCH COUNTY
NO. 2019013, THE HONORABLE ROBERT R. HOFMANN, JUDGE PRESIDING

MEMORANDUM OPINION

Clear Diamond, Inc. and Kyle Wartenbee (collectively, the Plaintiffs) appeal from

the trial court’s order denying their Texas Citizens Participation Act (TCPA) motion, which

sought dismissal of a motion for sanctions filed by Rebecca Zapata. See Tex. Civ. Prac. & Rem.

Code §§ 27.001-011. Rebecca Zapata, Estela Zapata, and Sergio Zapata Montoya (collectively,

the Zapatas) cross-appeal from the trial court’s order denying their motions to transfer venue.1

Because we conclude that Rebecca met her burden under the TCPA to establish a prima facie

case and that the Plaintiffs met their burden to establish that venue is proper in the county in

which they filed suit, we affirm the trial court’s orders.

1
Because several of the parties share the same last name of Zapata, for clarity we will
refer to them by their first names when referring to any of them individually.
 BACKGROUND

The dispute underlying this interlocutory appeal and cross-appeal arises from a

collision that occurred in Crockett County between two tractor-trailers, one operated by Flavio

Zapata and the other operated by Wartenbee. When the collision occurred, Wartenbee’s tractor-

trailer was carrying a tanker filled with liquified natural gas, and the two tractor-trailers ignited

upon impact. Flavio died as a result of the collision.

The Plaintiffs filed suit against the Zapatas in McCulloch County, asserting

claims for general negligence and for negligent entrustment, hiring, training, and supervision.

The Plaintiffs allege that the tractor-trailer operated by Flavio was owned by his widow, Rebecca,

along with other family members, Estela and Sergio, and that the collision occurred because

Flavio disregarded a stop sign located at an intersection as Wartenbee entered the intersection.

According to the Plaintiffs’ allegations, Wartenbee sustained personal injuries, and the tractor-

trailer operated by Wartenbee and its cargo, owned by Clear Diamond, were destroyed.

In addition, the Plaintiffs named Lonesome Dove Logistics, LLC as a defendant

in their suit. The Plaintiffs allege that Clear Diamond contracted with Lonesome Dove to

dispatch a driver to transport the tanker, that Lonesome Dove dispatched Wartenbee to conduct

the transport, and that Lonesome Dove was negligent in dispatching Wartenbee in dangerous

weather conditions. The Plaintiffs allege that venue is proper in McCulloch County because

McCulloch County is the county of the principal office of Lonesome Dove and because

their claims against the Zapatas “aris[e] out of the same transaction, occurrence, or series of

transactions.” See id. §§ 15.002(a), .005.

In response to the suit, Rebecca filed a motion to transfer venue, asserting that

McCulloch County is not a county of proper venue and requesting that the trial court transfer the

2
suit to Webb County, where her late husband’s estate is being administered. See id. § 15.031.

Specifically, Rebecca argues in her motion to transfer venue that the Plaintiffs cannot rely on

Lonesome Dove’s principal office to establish venue in McCulloch County because “Clear

Diamond, Inc. and Lonesome Dove Logistics, LLC are one entity for the purpose of venue” and

a “plaintiff cannot sue in the county of its own residence.” Ten days later, Estela Zapata and

Sergio Zapata Montoya filed their own motion to transfer venue, similarly asserting that venue is

improper in McCulloch County because Clear Diamond and Lonesome Dove “are essentially

one entity for purposes of the wreck.” 2 The Plaintiffs and Lonesome Dove filed responses to the

motions to transfer venue, disputing the Zapatas’ assertion that Clear Diamond and Lonesome

Dove are, in effect, one plaintiff.

After limited discovery, Rebecca filed a motion for sanctions against the Plaintiffs,

contending that Clear Diamond sued Lonesome Dove for the sole purpose of “manufactur[ing]

venue in McCulloch County” and that “the sole basis of [Clear Diamond’s] venue facts against

Lonesome Dove is the false claim that Chris Green (Clear Diamond’s own foreman) was acting

as an agent for Lonesome Dove” when he dispatched Wartenbee. Rebecca requests that the trial

court “strike the offending and frivolous claims against Lonesome Dove, and transfer this case

to Webb County, Texas.” In response, the Plaintiffs filed a motion to dismiss the motion for

sanctions, pursuant to the TCPA.

On January 14, 2020, following a hearing, the trial court signed orders denying

the Plaintiffs’ TCPA motion to dismiss and denying the Zapatas’ motions to transfer venue. The

2
In the alternative, the Zapatas requested a transfer of venue due to “inconvenience and
in the interest of justice,” under Section 15.002(b). See Tex. Civ. Prac. & Rem. Code § 15.002(b).
On appeal, the Zapatas do not contend that the trial court erred in denying their motions to
transfer venue on that ground. See id. § 15.002(c) (decision to grant or deny transfer under
Section 15.002(b) is not grounds for appeal).
3
Plaintiffs filed a notice of appeal from the trial court’s denial of their TCPA motion to dismiss.

See id § 51.014(a)(12) (allowing for interlocutory appeal from order denying TCPA motion to

dismiss). The Zapatas filed a notice of cross-appeal from the trial court’s denial of their motions

to transfer venue. See id. § 15.003(a).

DISCUSSION

I. Appeal of the trial court’s denial of the Plaintiffs’ TCPA motion to dismiss

In four issues, the Plaintiffs assert that the trial court erred in denying their TCPA

motion to dismiss.3 Because it informs our analysis of the issues, we begin by summarizing the

relevant statutory provisions.

TCPA Legal Framework

The Legislature enacted the TCPA to “encourage and safeguard the constitutional

rights of persons to petition, speak freely, associate freely, and otherwise participate in government

to the maximum extent permitted by law and, at the same time, protect the rights of a person to

file meritorious lawsuits for demonstrable injury.” In re Panchakarla, 602 S.W.3d 536, 538

(Tex. 2020) (orig. proceeding) (per curiam) (quoting Tex. Civ. Prac. & Rem. Code § 27.002).

To achieve this balance, the TCPA allows for the “expedited consideration of any suit that

appears to stifle the defendant’s communication on a matter of public concern.” Id. (quoting

In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding)). This expedited consideration

3
The Legislature most recently amended the TCPA in 2019, and the amended version of
the statute applies to actions filed on or after September 1, 2019.3 See Act of May 17, 2019, 86th
Leg., R.S., ch. 378, 2019 Tex. Gen. Laws 684 (codified at Tex. Civ. Prac. & Rem. Code
§§ 27.001, .003, .005-.007, .0075, .009-.010). Because the lawsuit underlying this appeal was
filed before September 1, 2019, the amendments do not apply, and all citations to the TCPA in
this opinion are to the former version of the statute. See Creative Oil & Gas, LLC v. Lona Hills
Ranch, LLC, 591 S.W.3d 127, 129 (Tex. 2019).
4
is accomplished through a motion-to-dismiss procedure, which is initiated when a party files “a

motion to dismiss the legal action.” See Tex. Civ. Prac. & Rem. Code § 27.003.

A ruling on a TCPA motion to dismiss involves a “three-step decisional process.”

Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 132 (Tex. 2019). Under

the first step, the party moving for dismissal must show by a preponderance of the evidence that

the TCPA applies to the “legal action” that is the subject of the motion to dismiss. See Tex. Civ.

Prac. & Rem. Code §§ 27.003(a), .005(b); see In re Lipsky, 460 S.W.3d at 586-87 (stating that

movant must show by preponderance of evidence that nonmovant’s claim is based on, relates to,

or in response to movant’s exercise of right of free speech, right to petition, right of association).

If the movant satisfies that burden, then under the second step, the burden shifts to the

nonmovant to establish “by clear and specific evidence a prima facie case for each essential

element of the claim in question.” Tex. Civ. Prac. & Rem. Code § 27.005(c). Alternatively,

the nonmovant can avoid its burden of demonstrating a prima facie case entirely by showing

that one of the TCPA’s exemptions applies. See id. § 27.010(a)(3); Morrison v. Profanchik,

578 S.W.3d 676, 680 (Tex. App.—Austin 2019, no pet.) (explaining that “[i]f an action falls

under a TCPA exemption, the TCPA does not apply and may not be used to dismiss the action”).

Finally, if the TCPA applies and the nonmovant party satisfies its burden of presenting a

prima facie case, the burden shifts back to the movant to establish by a preponderance of the

evidence each essential element of a valid defense to the nonmovant’s claim. Tex. Civ. Prac. &

Rem. Code § 27.005(d).

In determining whether a legal action should be dismissed under the TCPA, the

court must consider “the pleadings and supporting and opposing affidavits stating the facts on

which the liability or defense is based.” Id. § 27.006(a). We review a trial court’s ruling on a

5
motion to dismiss, including whether each party has carried its respective burden, by applying a

de novo standard of review. Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 887 (Tex. App.—

Austin 2018, pet. denied).

Here, although the trial court did not specify the reason for its decision to deny the

Plaintiffs’ TCPA motion to dismiss, in this appeal, the Plaintiffs have challenged all potential

grounds raised below. That is, the Plaintiffs argue that the trial court erred in denying their

TCPA motion to dismiss because they met their burden to demonstrate that the TCPA applies to

Rebecca’s motion for sanctions and because Rebecca failed to meet her burden to establish a

prima facie case for sanctions or, alternatively, that one of the TCPA’s exemptions applies.

Prima Facie Case

Although the parties dispute whether the TCPA applies to Rebecca’s motion for

sanctions, including whether the motion falls under the TCPA’s bodily-injury exemption, we will

assume without deciding that the TCPA applies and consider whether Rebecca failed to carry

her burden of “establish[ing] by clear and specific evidence a prima facie case for each essential

element of her claim.”

A prima facie case “refers to evidence sufficient as a matter of law to establish a

given fact if it is not rebutted or contradicted.” In re Lipsky, 460 S.W.3d at 590. “It is the

‘minimum quantum of evidence necessary to support a rational inference that the allegation of

fact is true.’” Id. (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex.

2004) (orig. proceeding) (per curiam)). Although the trial court may consider pleadings as

evidence under the TCPA, see Tex. Civ. Prac. & Rem. Code § 27.006(a), Serafine v. Blunt,

466 S.W.3d 352, 357 (Tex. App.—Austin 2015, no pet.), and the nonmovant may satisfy its

6
prima facie burden using circumstantial evidence, the Act does require more than “mere notice

pleading,” In re Lipsky, 460 S.W.3d at 590-91. Consequently, “clear and specific evidence”

means that “the plaintiff must provide enough detail to show the factual basis for its claim.”

Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017). In determining whether the nonmovant

has met this burden, the court views the evidence in the light most favorable to the nonmovant.

Warner Bros. Entm’t, Inc. v. Jones, 538 S.W.3d 781, 801 (Tex. App.—Austin 2017), aff’d,

611 S.W.3d 1 (Tex. 2020).

Rebecca moved for sanctions against the Plaintiffs for filing groundless or

frivolous pleadings under Chapter 10 of the Civil Practice and Remedies Code and Rule 13 of

the Rules of Civil Procedure. To prevail on her motion for sanctions, Rebecca must show that

(1) the Plaintiffs’ pleading was brought for an improper purpose; (2) there were no grounds for

the legal arguments advanced; or (3) the allegations and factual contentions lack any evidentiary

support. See Tex. Civ. Prac. & Rem. Code § 10.001; Tex. R. Civ. P. 13. To make this

determination, the trial court must objectively ask whether the Plaintiffs and their counsel made a

reasonable inquiry into the legal and factual basis of the claim at the time the suit was filed. See

Lake Travis Indep. Sch. Dist. v. Lovelace, 243 S.W.3d 244, 254 (Tex. App.—Austin 2007, no pet.).

In her motion for sanctions, Rebecca alleges that the Plaintiffs falsely claimed that

Chris Green was acting as an agent for Lonesome Dove when he dispatched Wartenbee during

dangerous conditions and that this allegation was made for the improper purpose of

“manufacturing” venue in McCulloch County, a county where venue otherwise would not exist

in this case. In addition, Rebecca alleges that Lonesome Dove’s sole owner and employee,

Kelly Green, has no knowledge of the dispatch or the accident and that Chris Green was acting

on behalf of Clear Diamond and not Lonesome Dove when he dispatched Wartenbee.

7
 In support of her response to the Plaintiffs’ TCPA motion, Rebecca attached

excerpts from Kelly Green’s deposition and Wartenbee’s deposition. In her deposition, Kelly

Green testified that Chris Green is her husband but that she is Lonesome Dove’s sole owner and

only employee. Kelly Green also stated that she is “primarily responsible for operating

Lonesome Dove” and that “if Lonesome Dove had any activity in relation to [Wartenbee’s]

load, [she] would be the one who would have known about it.” In his deposition testimony,

Wartenbee stated that he was operating under the authority and license of MK Gas, which he

understood to be the same company as Clear Diamond, when he transported the liquified gas;

that Chris Green was also transporting under the authority of MK Gas; and that Chris Green

gave Wartenbee the dispatch instructions that led to the collision with Flavio. Finally, Rebecca

attached documents showing that Chris Green works as “the natural gas liquids foreman” for

MK Gas, and that, according to Secretary of State filings, Clear Diamond operates under the

assumed name “MK Transport.”

We conclude that Rebecca’s factual allegations and evidence, if uncontradicted,

are sufficient to support sanctions against Lonesome Dove.4 More specifically, we conclude that

the factual allegations and the evidence, viewed in the light most favorable to Rebecca, suggest

4
The Plaintiffs contest the allegations made by Rebecca in her motion for sanctions. In
their appellants’ brief, the Plaintiffs outline evidence presented to the trial court that, in their
view, supports their claim that Chris Green was acting as an agent for Lonesome Dove when he
dispatched Wartenbee. However, this evidence does not conclusively negate Rebecca’s claim
that the suit against Lonesome Dove is groundless, and we are not tasked with deciding who
should ultimately prevail on the motion for sanctions. See Low v. Henry, 221 S.W.3d 609, 614
(Tex. 2007) (imposition of sanctions reviewed for abuse of discretion). Instead, we must view
the evidence in the light most favorable to Rebecca to determine whether she established a
prima facie case to prevent her motion for sanctions from being dismissed. See Dyke v. Hall,
No. 03-18-00457-CV, 2019 Tex. App. LEXIS 9136, at *16 n.4 (Tex. App.—Austin Oct. 17,
2019, no pet.) (mem. op.). Applying that standard, we conclude that Rebecca met that burden.

8
that Chris Green was acting as an agent for Clear Diamond and not Lonesome Dove when he

dispatched Wartenbee and that a reasonable investigation by Clear Diamond would have

revealed this fact.5 In addition, we conclude that the allegations and the evidence are sufficient

to support a rational inference that the Plaintiffs made these allegations against Lonesome

Dove for the improper purpose of establishing venue in McCulloch County. See In re Lipsky,

460 S.W.3d at 590.

Assuming without deciding that the Plaintiffs met their burden to establish that

the TCPA applies to Rebecca’s motion for sanctions and that Rebecca failed to show that an

exemption applies, we conclude that Rebecca met her burden of establishing a prima facie case

for sanctions. Consequently, we overrule the Plaintiffs’ third issue on appeal. Because we can

uphold the trial court’s denial of the Plaintiffs’ TCPA motion to dismiss on this ground alone, we

need not decide the Plaintiffs’ remaining issues, including their contentions that the TCPA

applies to the motion for sanctions because it constitutes a “legal action” filed in response to their

exercise of the right to petition and that Rebecca failed to establish a TCPA exemption. See Tex.

R. App. P. 47.1.

5
Rebecca also moved for sanctions on the ground that Clear Diamond asserted a claim
for indemnity against Lonesome Dove and that, as a matter of law, there is no indemnity
agreement between Lonesome Dove and Clear Diamond. When Rebecca filed her motion for
sanctions, however, the Plaintiffs had already filed an amended petition that removed the
indemnity claim from their suit, and they did not rely on that abandoned indemnity claim in
arguing that venue is proper in McCulloch County. Nevertheless, Rebecca argues that the
indemnity claim was frivolous and thus still sanctionable, despite the fact that Clear Diamond
is no longer pursuing the claim. Because we conclude that Rebecca has met her TCPA burden
without considering this ground, we need not decide this issue.
9
II. Cross-appeal of the trial court’s denial of the Zapatas’ motions to transfer venue

On cross-appeal, the Zapatas assert that the trial court erred in denying their

motions to transfer venue. As a preliminary matter, we consider the Plaintiffs’ assertion that we

lack appellate jurisdiction to review the merits of the trial court’s venue determination.

Appellate Jurisdiction

The Plaintiffs argue that we lack jurisdiction over this cross-appeal for two

reasons. Specifically, the Plaintiffs argue that we lack appellate jurisdiction because the trial

court’s order denying the Zapatas’ motions to transfer venue is not an appealable order and

because the Zapatas’ notice of appeal was untimely.

Interlocutory orders generally are not appealable. See Lehmann v. Har-Con

Corp., 39 S.W.3d 191, 195 (Tex. 2001) (“[T]he general rule . . . is that an appeal may only be

taken from a final judgment.”). Consequently, as a general rule, a party may only appeal a ruling

on a motion to transfer venue once a final judgment is signed. Tex. Civ. Prac. & Rem. Code

§ 15.064(a). However, Section 15.003 of the Civil Practice and Remedies Code provides a limited

right to an interlocutory appeal from certain venue rulings. Tex. Civ. Prac. & Rem. Code § 15.003.

Under Section 15.003, “each plaintiff must, independently of every other plaintiff,

establish proper venue.” Id. § 15.003(a). If a plaintiff cannot independently establish venue,

that plaintiff’s portion must be transferred . . . , unless the plaintiff can demonstrate that he

satisfies the four criteria set out in subsection (a), not at issue in this case.6 Id. If the trial court

6
Specifically, the plaintiff must establish that (1) joinder of that plaintiff or intervention
in the suit by that plaintiff is proper under the Texas Rules of Civil Procedure, (2) maintaining
venue as to that plaintiff in the county of suit does not unfairly prejudice another party to the suit,
(3) there is an essential need to have that plaintiff’s claim tried in the county in which the suit
is pending, and (4) the county in which the suit is pending is a fair and convenient venue for
10
determines that a plaintiff did or did not independently establish proper venue or, alternatively,

that the plaintiff did or did not establish the four criteria, “[a]n interlocutory appeal may be

taken.” Id. § 15.003(b). In a suit with multiple plaintiffs, a trial court’s ruling that venue is

proper in a particular county for all plaintiffs “is necessarily a determination that every plaintiff

‘independently establish[ed] proper venue’ within the meaning of section 15.003(b)(1).” Union

Pac. R.R. v. Stouffer, 420 S.W.3d 233, 237 (Tex. App.—Dallas 2013, pet. dism’d) (citing Tex.

Civ. Prac. & Rem. Code § 15.003(a)); see Jackson v. Jackson, No. 02-15-00102-CV, 2016 Tex.

App. LEXIS 10444, at *9 (Tex. App.—Fort Worth Sept. 22, 2016, pet. denied) (mem. op.) (“In a

multiple-plaintiff case, every order on a motion to transfer venue will necessarily determine

whether each plaintiff did or did not independently establish proper venue.”); Shamoun &

Norman, LLP v. Yarto Int’l Grp., LP, 398 S.W.3d 272, 287 n.18 (Tex. App.—Corpus Christi

2012, pet. dism’d) (concluding that “interlocutory appeals are available for venue determinations

in any case involving multiple plaintiffs”); see also Siemens Corp. v. Bartek, No. 03-04-00613-

CV, 2006 Tex. App. LEXIS 3533, at *11 (Tex. App.—Austin Apr. 28, 2006, no pet.) (mem. op.)

(reviewing interlocutory venue order in multiple-plaintiff case, citing Section 15.003 but without

analyzing appellate jurisdiction). Because the suit underlying this cross-appeal involves multiple

plaintiffs, we conclude that we have jurisdiction under Section 15.003(b) to consider a timely

filed appeal from the trial court’s venue determination.

Next, we consider the Plaintiffs’ alternative argument that we lack jurisdiction

over the cross-appeal because the Zapatas’ notice of cross-appeal was untimely. See Tex. R.

App. P. 26.1(b) (stating that in accelerated appeal, notice of appeal must be filed within twenty

that plaintiff and all persons against whom the suit is brought. Tex. Civ. Prac. & Rem. Code
§ 15.003(a).
11
days after date that appealable judgment or order is signed); id. R. 28.1 (providing that appeals

from interlocutory orders are accelerated); see Whisenhunt v. Lippincott, 474 S.W.3d 30, 46-47

(Tex. App.—Texarkana 2015, no pet.) (dismissing cross-appeal after concluding that notice

of interlocutory cross-appeal of order was untimely as calculated from date order was signed);

see also In re K.A.F., 160 S.W.3d 923, 925 (Tex. 2005) (“[T]he language of rule 26.1(b) is

clear and contains no exceptions to the twenty-day deadline.”). The Plaintiffs point out that on

September 19, 2019, the trial court signed an order (1) denying Rebecca’s motion to transfer

venue to the extent the motion requested a transfer under the general venue provision, and

(2) “carr[ying] forward for hearing . . . Defendant’s Motion to Transfer Venue Paragraph IV

relating to Texas Civil Practice and Remedies Code Section 15.002(b).” The Plaintiffs reason

that because the issues raised by the Zapatas in their cross-appeal concern only whether the trial

court’s venue determination was proper under the general venue provision, Section 15.002(a),

the deadline for the Zapatas to file their notice of cross-appeal was twenty days from the day the

September 2019 order was signed, which was October 9, 2019, and that their notice was not filed

until January 2020.

We disagree with the Plaintiffs’ contention that the trial court’s September 2019

order was immediately appealable. In its September 2019 order, the trial court specifically

refrained from disposing of one of the two grounds for transferring venue raised by Rebecca in

her motion to transfer. Because the trial court could have later decided to grant Rebecca’s

motion to transfer on that undisposed ground, we cannot, as a practical matter, conclude that she

should have immediately appealed the September 2019 partial ruling. Moreover, the September

2019 order does not dispose of any part of the motion to transfer venue filed by Estela Zapata

and Sergio Zapata, who are also cross-appellants and raise the same issues on appeal. On

12
January 14, 2020, the trial court signed an order denying, in full, both the motions to transfer

venue. The Zapatas filed their notice of cross-appeal within twenty days of that date, making

their cross-appeal timely. We conclude that we have jurisdiction to consider the merits of the

Zapatas’ cross-appeal.

Merits of the Venue Challenge

In general, a plaintiff is allowed to choose venue first, and that venue choice will

not be disturbed as long as the suit is initially filed in a county of proper venue. Union Pac. R.R.,

420 S.W.3d at 239; Siemens, 2006 Tex. App. LEXIS 3533, at *12-13; see In re Masonite,

997 S.W.2d 194, 197 (Tex. 1999) (orig. proceeding) (“The plaintiff has the first choice to fix

venue in a proper county; this the plaintiff does by filing the suit in the county of his choice.”).

The defendant, however, may challenge that venue choice, and a court must “transfer an action

to another county of proper venue if . . . the county in which the action is pending is not a proper

county.” In re Team Rocket, L.P., 256 S.W.3d 257, 260 (Tex. 2008) (orig. proceeding) (quoting

Tex. Civ. Prac. & Rem. Code § 15.063(1)); see Tex. R. Civ. P. 86 (motion to transfer venue).

All venue facts properly pleaded by the plaintiff shall be taken as true unless

specifically denied by the defendant. Tex. R. Civ. P. 87(3)(a). If a defendant specifically denies

the pleaded venue facts, the plaintiff must present prima facie proof of its venue facts. Id. The

court must decide the challenge based on the pleadings and affidavits submitted by the parties.

Id. A plaintiff satisfies its burden of presenting prima facie proof when the venue facts are

properly pleaded and an affidavit, and any duly proved attachments to the affidavit, are filed

fully and specifically setting forth the facts supporting such a pleading. Id. If the plaintiff fails

to meet its burden, the trial court must transfer venue to the county specified in the defendant’s

13
motion if the defendant has presented prima facie evidence that the county requested is a proper

venue. Pellegrini v. Six Pines Expl., LLC, No. 03-18-00774-CV, 2019 Tex. App. LEXIS 10133,

at *6 (Tex. App.—Austin Nov. 22, 2019, no pet.) (mem. op.) (citing In re Masonite, 997 S.W.2d

at 197).

In an interlocutory appeal from a trial court’s ruling on venue, we “determine

whether the trial court’s order is proper based on an independent determination from the record

and not under either an abuse of discretion or substantial evidence standard.” Id. (citing Tex.

Civ. Prac. & Rem. Code § 15.003(c)(1)). If the record contains any probative evidence

supporting venue in the county of suit, a transfer is improper even if the preponderance of the

evidence is to the contrary. Id.

In this case, the Plaintiffs assert that venue is proper in McCulloch County based

on the general venue provisions found in Section 15.002. Subsection(a) of Section 15.002 states,

in relevant part:

(a) Except as otherwise provided by this subchapter or Subchapter B or C, all
lawsuits shall be brought:

(1) in the county in which all or a substantial part of the events or
omissions giving rise to the claim occurred; [or]

(2) in the county of the defendant’s principal office in this state, if the
defendant is not a natural person.

Tex. Civ. Prac. & Rem. Code § 15.002(a).

As previously discussed, the Plaintiffs pleaded that venue is proper in McCulloch

County because (1) under Section 15.002(a), McCulloch County is the county of the principal

office of Lonesome Dove, see id., and (2) under Section 15.005, venue is also proper in

McCulloch County as to the Zapatas because their claims against those defendants “aris[e] out of

14
the same transaction, occurrence, or series of transactions,” see id. § 15.005 (“In a suit in which

the plaintiff has established proper venue against a defendant, the court also has venue of all

defendants in all claims or actions arising out of the same transaction, occurrence, or series

of transactions or occurrences.”). In addition, the Plaintiffs and Lonesome Dove each filed a

response to the motions to transfer venue, denying the Zapatas’ allegations that Clear Diamond

and Lonesome Dove are the same entity. In support of their response, the Plaintiffs attached an

affidavit by Heath McBride, President of Clear Diamond, in which he states that “Clear Diamond

and Lonesome Dove are not and have never been one entity; and neither [McBride] nor Clear

Diamond has ever owned any financial interest in Lonesome Dove.” Similarly, Lonesome Dove

attached an affidavit from its owner and employee, Kelly Green, stating that Lonesome Dove is

a limited liability company, in the business of “handling the logistics for different truck

companies,” with its principal place of business in McCulloch County.

On appeal, the Zapatas assert that the trial court erred in denying their motions to

transfer venue because the Plaintiffs failed to provide probative evidence to support their venue

choice. Specifically, the Zapatas argue that (1) “[the Plaintiffs] failed to support their venue choice

with probative evidence of [Lonesome Dove’s] negligence,” and (2) “[t]he Zapatas provided

conclusive evidence negating the probative evidence, if any, provided by the Plaintiffs to support

their venue choice.” According to the Zapatas, “the only disputed questions relevant to whether

Lonesome Dove’s place of business in McCulloch County provides a valid basis for venue is

whether Chris Green (Kelly Green’s husband) dispatched Wartenbee on Lonesome Dove’s

behalf such that Lonesome Dove could be liable for his actions; and, if so, whether he did so

in a negligent manner.”

15
 The Zapatas’ venue argument is, in effect, that the Plaintiffs cannot establish

venue because they have not and cannot present evidence of a viable negligence claim against

Lonesome Dove. The rules of procedure prescribe the scope of the trial court’s consideration

when ruling on a motion to transfer venue. In re Reynolds, 369 S.W.3d 638, 648 (Tex. App.—

Tyler 2012, no pet.); see Tex. R. Civ. P. 86, 87. One significant limitation provided by those

rules is that the trial court may not inquire into the merits of a cause of action. In re Reynolds,

369 S.W.3d at 648. Rule 87, in relevant part, states:

[N]o party shall ever be required for venue purposes to support prima facie proof
the existence of a cause of action or part thereof, and at the hearing the pleadings
of the parties shall be taken as conclusive on this issue of existence of a cause
of action.

Tex. R. Civ. P. 87(3)(a) (emphasis added). Contrary to the Zapatas’ assertion, the Plaintiffs were

not obligated to support their venue choice with prima facie proof as to the merits of their

underlying negligence claims against Lonesome Dove or any other defendant.

Because it was unchallenged, we take as true the Plaintiffs’ allegation that

Lonesome Dove’s principal place of business is located in McCulloch County. See id. Based on

this undisputed venue fact, which is also supported by affidavits, we conclude that the Plaintiffs

met their burden to establish that their suit is maintainable against Lonesome Dove in McCulloch

County under the general venue provision. Further, by application of Section 15.005, the Plaintiffs

also established that venue is proper in McCulloch County as to the Zapatas. The trial court

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did not err in denying the motions to transfer venue.7 The Zapatas’ issues on cross-appeal

are overruled.

CONCLUSION

Having concluded that the trial court did not err in denying the Plaintiffs’ TCPA

motion to dismiss or the Zapatas’ motions to transfer venue, we affirm the orders of the trial court.

__________________________________________
Chari L. Kelly, Justice

Before Chief Justice Byrne, Justices Baker and Kelly

Affirmed

Filed: August 13, 2021

7
Many of the Zapatas’ arguments in their cross-appeal overlap with arguments made by
Rebecca in her motion for sanctions, specifically, that the Plaintiffs asserted groundless claims
against Lonesome Dove for the purpose of establishing venue. Although we have concluded that
Rebecca established a prima facie case for sanctions, as previously discussed, we express no
opinion on the ultimate issue of whether sanctions are warranted in this case or whether transfer
of the case to Webb County would be an appropriate sanction.
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