Justice Gina Benavides
Justice Jaime Tijerina
3HM Trucking, LLC, Michael Jerome Wright, Prestinge Gunnite, Inc., Jesus Maria Rosales, III, Tri-National, Inc. v. Joann Carr Elizondo, et al. (No. 13-23-00135-CV; March 21, 2024) arose from a fatality accident involving two commercial trucks in Dallas County that killed Ernesto Elizondo, a passenger in the truck driven by Rosales. The Elizondos filed wrongful death and survivor claims against both drivers and their employers in Hidalgo County based on Rosales’s county of residence. Rosales, an employee of Tri-National, filed a cross-petition against 3HM asserting various theories of negligence and that venue was proper in Hidalgo County. Two weeks later Rosales changed his mind and, together with his employer, filed a motion to transfer venue to Tarrant County in which Rosales claimed that he resided in Cameron County with his wife. After a hearing in which the parties offered conflicting evidence, the trial court denied the motion to transfer. Defendants, including Rosales, filed an interlocutory appeal.
In an opinion by Justice Benavides, the court of appeals affirmed. The court first ruled that Rosales waived his objection to venue because he did not file it before or concurrently with a plea, pleading, or motion (other than a special appearance) as required by TRCP Rule 86.1. Turning to the other defendants, the court determined that Plaintiffs produced prima facie evidence to establish venue in Hidalgo County, based on the address listed on Rosales’s driver’s license and on the one Rosales gave to police and listed on the accident report. The question then became whether Defendants “destroyed” the prima facie proof by rebuttal evidence. Their rebuttal evidence consisted of Rosales’s and his wife’s affidavits that they moved to Cameron County six months before the accident and a corresponding address on Rosales’s medical record. Since Rosales contradicted himself as to his place of residence more than once and in his own cross-petition, the court concluded that it could not consider Rosales’s rebuttal evidence as destroying Plaintiffs’ prima facie case. Justice Tijerina filed a dissent, in which he simply disagreed with the majority’s analysis of the evidence. He did not address the waiver issue.
