Daniel Kearns v. Ron Heller & Business Air Inc.

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

DANIEL KEARNS, § No. 08-23-00300-CV

Appellant, § Appeal from the

v. § 57th Judicial District Court

RON HELLER and BUSINESS AIR, INC., § of Bexar County, Texas

Appellees. § (TC# 2023CI14065)

MEMORANDUM OPINION1

In this appeal we decide whether the underlying lawsuit should proceed in either Bexar or

Travis County. Ron Heller and Business Air, Inc., Appellees here, filed suit against Appellant

Daniel Kearns, in Bexar County. Kearns moved to transfer venue to Travis County. After the trial

court denied the motion, Kearns filed this interlocutory appeal asserting that venue is proper only

in Travis County. We disagree and affirm the trial court’s order allowing the case to proceed in

Bexar County.

1 The appeal was transferred to this Court from the Fourth Court of Appeals pursuant to a Texas Supreme Court docket equalization order. Accordingly, we apply the Fourth Court of Appeals’ precedent to the extent it conflicts with our own. See Tex. R. App. P. 41.3. BACKGROUND Based on the Appellees’ pleaded allegations, in 2023 Kearns and Heller actively discussed

creating an air charter business. The proposed deal would require purchasing an existing entity—

Business Air, Inc.—and with the use of its “charter certificate,” incorporate it into a new entity.

Kearns was to be employed by the new entity and contribute his knowledge of the industry and

business contacts. Specifically, the new business required a pool of aircraft owners who would

permit the new entity to manage their aircraft. Heller claims that Kearns represented he already

had such a book of business. Heller was to provide the initial funding.

Before all the final terms were agreed, Heller purchased all the common stock in Business

Air for $450,000. But the business relationship between the two men then soured. A draft “term

sheet” outlining their arrangement was never approved. And Heller contends that without any final

agreement, Kearns represented to others that he is the CEO, the president, and owner of Business

Air and “has the absolute authority to act on behalf of the entity.”

Heller and Business Air, Inc. (collectively, the Appellees) sued Kearns in Bexar County.

In their Original Petition, Appellees asked the trial court to determine the validity and construction

of various documents that Kearns claimed memorialized a contract between Kearns and Business

Air and/or Heller. More specifically, Appellees ask the court to declare that the series of email and

other negotiations never resulted in an agreement, partnership, or obligation to employ Kearns.

The Original Petition also sought a temporary restraining order (which was never issued) and

injunctive relief against Kearns, that would restrain him from holding himself out as CEO,

president, or an employee of Business Air, or take other specific actions on behalf of that entity.

Kearns responded with a motion to transfer venue to Travis County based on three grounds.

First, he asserted that § 65.023(a) of the Texas Civil Practice & Remedies Code fixes mandatory

2 venue for injunctive relief at the defendant’s county of residence—for Kearns that meant Travis

County. Second, he asserted even setting aside the mandatory venue issue, Appellees failed to

establish a prima facie case that a substantial part of the events or omissions giving rise to this

claim occurred in Bexar County. Given that failing, he asserted that, under § 15.002(a)(2) of the

Civil Practice & Remedies Code, Travis County was the proper venue because it was his county

of residence.

After Kearns moved to transfer venue, but before any hearing, Appellees filed a First

Amended Petition. In this petition, Appellees alleged facts they believed established a prima facie

case for venue in Bexar County and requested the same declaratory relief as in their Original

Petition. Heller added a claim for fraudulent misrepresentation and inducement. But both

Appellees dropped any claim for injunctive relief.

Appellees also filed a response to Kearns’s motion to transfer venue, which included

Heller’s affidavit describing the “when and where” of various meetings and conversations that he

and Kearns had while negotiating over the potential new venture. That affidavit attached various

records intended to corroborate the events described in the affidavit. Kearns objected to Heller’s

affidavit and its exhibits. Following a hearing, the trial court denied the motion to transfer venue

without stating its reasons for doing so. The trial court did not rule on Kearns’s objections to

Heller’s affidavit. This interlocutory appeal ensued.2

2 Ordinarily, interlocutory appeals are not permitted from a trial court’s venue determination. Tex. R. Civ. P. 87(6). However, when a venue determination involves multiple plaintiffs, Tex. Civ. Prac. & Rem. Code Ann. § 15.003(b). allows for an interlocutory appeal.

3 APPLICABLE LAW & STANDARD OF REVIEW A. General venue rules

The general venue statute provides, with exceptions not applicable here, that “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 defendant’s residence at the time the

cause of action accrued if defendant is a natural person[.]” Tex. Civ. Prac. & Rem. Code Ann.

§ 15.002(a)(1–2). But “if an action is governed by a statute prescribing mandatory venue, the

action ‘shall be brought in the county required by that statute.’” Fortenberry v. Great Divide Ins.

Co., 664 S.W.3d 807, 811 (Tex. 2023) (quoting Tex. Civ. Prac. Rem. Code Ann. § 15.016). As

applicable here, one such mandatory venue statute requires that “a writ of injunction against a

party who is a resident of this state shall be tried in a district or county court in the county in which

the party is domiciled.” Tex. Civ. Prac. & Rem. Code Ann. § 65.023(a).

“The initial choice of venue is left to the plaintiff, who first decides venue by filing an

original petition.” Fortenberry, 664 S.W.3d at 811. If a defendant properly challenges venue, the

plaintiff carries the burden to present prima facie proof that venue is maintainable in the county of

suit, and the defendant has the burden to prove venue is maintainable in the county to which

transfer is sought. Id.; see Tex. R. Civ. P. 87(2)(a) (stating burdens). The trial court “shall

determine the venue of a suit based on the facts existing at the time the cause of action that is the

basis of the suit accrued.” Tex. Civ. Prac. & Rem. Code Ann. § 15.006. A plaintiff’s venue facts

will be taken as true unless specifically denied by an adverse party. Tex. R. Civ. P. 87(3)(a).

“Prima facie proof is made 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 pleading.” Id. A plaintiff’s prima facie proof is not subject to rebuttal, cross-

4 examination, impeachment, or disproof. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993).

If the plaintiff proves venue facts that support venue, the trial court must maintain the lawsuit in

the county where suit was filed unless the motion to transfer is based on an established ground of

mandatory venue. Tex. R. Civ. P. 87(3)(c). If the plaintiff fails to meet this burden, the trial court

must transfer the lawsuit to another specified county of proper venue. In re Masonite Corp., 997

S.W.2d 194, 197 (Tex. 1999) (orig. proceeding); Tex. Civ. Prac. & Rem. Code Ann. § 15.063.

B. Venue in multi-plaintiff suits

In a suit in which there is more than one plaintiff, “each plaintiff must, independently of

every other plaintiff, establish proper venue.” Tex. Civ. Prac. & Rem. Code Ann. § 15.003(a). That

provision provides special rules in multi-plaintiff suits:

(a) In a suit in which there is more than one plaintiff, whether the plaintiffs are included by joinder, by intervention, because the lawsuit was begun by more than one plaintiff, or otherwise, each plaintiff must, independently of every other plaintiff, establish proper venue. If a plaintiff cannot independently establish proper venue, that plaintiff’s part of the suit, including all of that plaintiff’s claims and causes of action, must be transferred to a county of proper venue or dismissed, as is appropriate, unless that plaintiff, independently of every other plaintiff, establishes 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 that plaintiff and all persons against whom the suit is brought.

Id. § 15.003(a).3

3 The exception embodied by the four factors in § 15.003(a)–(b) allow for a broader range of proofs, including rebuttal evidence that the defendant may offer. Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 603 (Tex. 1999).

5 Section 15.003 also modifies our standard of review. In an interlocutory appeal from a

venue determination involving multiple plaintiffs, a “court of appeals shall . . . 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[.]” Tex. Civ. Prac. & Rem.

Code Ann. § 15.003(c)(1). Further, “[i]n determining whether venue was or was not proper, the

appellate court shall consider the entire record, including the trial on the merits.” Id. § 15.064(b).

Thus our review in an interlocutory appeal of a venue determination is de novo. Surgitek, Bristol-

Myers Corp. v. Abel, 997 S.W.2d 598, 603 (Tex. 1999); Sustainable Texas Oyster Res. Mgmt.

L.L.C. v. Hannah Reef, Inc., 491 S.W.3d 96, 105–07 (Tex. App.—Houston [1st Dist.] 2016, pet.

denied).

ISSUES ON APPEAL

Kearns’s statement of the issues as required by Tex. R. App. P. 38.1(f) identifies one global

issue: whether the trial court erred in concluding that Heller and Business Air independently

established venue in Bexar County. The sub-issues set out on that page of his brief all challenge

the significance of Appellees withdrawing their claim for a TRO and injunctive relief in the First

Amended Petition. The argument section of Kearns’s brief, however, raises other challenges

related to the admissibility of evidence, and whether a substantial part of each plaintiff’s claims

arose in Bexar County. We attempt to identify and address each of these arguments.4

Appellants’ response to the motion to transfer venue did not argue that the exception applies, and the exception does not appear to have been argued below, so we do not consider it here. 4 “Appellate briefs are to be construed reasonably, yet liberally, so that the right to appellate review is not lost by waiver.” Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam). Accordingly, an appellant can preserve error “in the body of their appellate brief,” even if it is not separately listed in the notice of appeal or presented as an issue in the brief. Id. at 586; see also Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 162 (Tex. 2012) (considering issue raised by “fair reading” of brief, even if not separately and specifically present in the issues listed in appellate brief).

6 AMENDMENT OF THE PETITION NEGATES MANDATORY VENUE We first consider Kearns’s argument that based on the injunctive relief sought, a mandatory

venue provision requires the case to be heard in Travis County. The argument urges that we must

consider not only the Amended Petition but the Original Petition as well. And if we do so, Kearns

says that the injunctive relief in the Original Petition triggers the mandatory venue provision in

§ 65.023(a). Appellees do not dispute that Travis County—where Kearns resides—was initially

the place of mandatory venue when they requested injunctive relief in their Original Petition. But

Appellees withdrew their request for injunctive relief when they filed their Amended Petition. As

a result, Appellees contend that the mandatory venue statute no longer applies.

A. Kearns’s argument that the original petition must be considered

Kearns’s argument that we must still consider the Original Petition’s injunction count, and

the mandatory venue provision that the injunction count triggers, side steps several principles.

First, a plaintiff may freely amend its petition at least seven days before the venue hearing. Nabors

Loffland Drilling Co. v. Martinez, 894 S.W.2d 70, 73 (Tex. App.—San Antonio 1995, writ denied)

(disagreeing with argument that allowing plaintiff to amend petition to raise new cause of action

for venue purposes allows plaintiff to circumvent venue law); see Tex. R. Civ. P. 62–64 (rules

governing amended instruments). Second, an amended instrument—in this case an amended

petition—takes the place of the substituted instrument. See Tex. R. Civ. P. 65 (“Unless the

substituted instrument shall be set aside on exceptions, the instrument for which it is substituted

shall no longer be regarded as a part of the pleading in the record of the cause [subject to exceptions

not at issue here]”); Mensa-Wilmot v. Smith Int’l, Inc., 312 S.W.3d 771, 779 (Tex. App.—Houston

[1st Dist.] 2009, no pet.) (“A proper amended pleading supersedes and replaces prior pleadings.”).

7 And finally, when an amended petition is timely filed, the amended pleading is the live and only

pleading properly before the court at a hearing on a motion to transfer venue. Watson v. City of

Odessa, 893 S.W.2d 197, 200 (Tex. App.—El Paso 1995, writ denied) (holding that first amended

petition supplanted original petition and court was bound to consider only last pleading); see also

Cincinnati Ins. Co. v. Villanueva, No. 04-20-00389-CV, 2022 WL 608962, at *2 (Tex. App.—

San Antonio Mar. 2, 2022, pet. denied) (mem. op.) (“The trial court must base its venue

determination on the last pleading that was timely filed.”). The legislature has allowed the plaintiff

some control over venue by dictating the relief they seek. In re Cont’l Airlines, Inc., 988 S.W.2d

733, 737 (Tex. 1998) (“The venue statutes give plaintiffs some degree of choice over where to file

their suit.”). Our procedural rules also give a plaintiff the ability to add or subtract claims through

amended pleadings. Therefore, although § 15.003 commands that we must examine the entire

record, we find no support for using that provision to resurrect a superseded pleading.

B. Nature of the relief sought

We next consider Kearns’s argument that the mandatory venue statute still applies because

the relief sought by Appellees in their Amended Petition is injunctive in nature. Kearns urges that

we look past to what he terms artful pleading, to find that even the amended pleading seeks

injunctive relief.

Section 65.023(a) provides for mandatory venue only when a plaintiff’s pleadings establish

the relief sought is purely or primarily injunctive. In re Fox River Real Est. Holdings, Inc., 596

S.W.3d 759, 765 (Tex. 2020) (orig. proceeding). “In this context, ‘primary’ necessarily means first

in order of rank or importance.” Id. Section 65.023(a) does not apply if the requested injunctive

relief is merely ancillary to other relief sought or is not the dominant purpose or central focus of

the lawsuit. Id. (recognizing “Legislature did not intend for the tail to wag the dog”). To determine

8 the dominant purpose of Appellees’ lawsuit, we employ a commonsense examination of the

substance of their claims for relief as stated in their Amended Petition. See id. “[T]he true nature

of the lawsuit depends on the facts alleged in the petition, the rights asserted, and the relief sought.”

Airvantage, LLC v. TBAN Properties #£1, L.T.D., 269 S.W.3d 254, 258 (Tex. App.—Dallas 2008,

no pet.).

These stated principles come from a series of cases where a plaintiff’s petition sought

injunctive relief alongside other traditional claims. See, e.g., In re Fox River Real Estate, 596

S.W.3d at 765 (“The crux of this dispute is whether Fox River ‘primarily’ seeks injunctive relief

despite pleading for significant damages, attorney’s fees, declaratory relief, and other equitable

relief, including a constructive trust.”); In re Cont’l Airlines, 988 S.W.2d at 736 (suit for

declaratory and injunctive relief over rights to fly into Love Field); In re Daniel, No. 12–06–

00232–CV, 2006 WL 2361350, at *2 (Tex. App.—Tyler Aug. 16, 2006, orig. proceeding) (mem.

op.) (suit seeking injunction to enforce noncompete and nondisclosure agreement along with

declaratory judgment to declare the rights, duties, and legal relations between former employer

and employee); In re FPWP GP LLC, No. 05-16-01145-CV, 2017 WL 461355, at *1 (Tex. App.—

Dallas Jan. 25, 2017, no pet.) (mem. op.) (suit between partners regarding dispute over which party

was partnership’s general partner, and which sought declaratory and injunctive relief).

Accordingly, the cases discuss as between the injunctive and declaratory relief claims, which is

dominant. See In re FPWP GP LLC, 2017 WL 461355, at *2–4 (collecting and discussing cases

in this genre).

But Kearns asks us to take those cases one step further by characterizing Appellees’

declaratory relief claim as injunctive, even though there is no injunctive relief expressly asked for

in the amended petition. This ask is a bridge too far. It is one thing to decide as between several

9 pleaded claims which is predominate, and whether one is a mere shade or phase of another. It is

quite another to recharacterize a claim that seeks no injunctive relief as one for an injunction. See

In re Cont’l Airlines, 988 S.W.2d 733, 737 (Tex. 1998) (“As Fort Worth asserts, its pleadings do

not ask for and would not support a permanent injunction. . . . We cannot reform Fort Worth’s

requests for relief to reflect the relators’ suspicions.”).

No doubt, venue determinations are dictated by “the substance of the claim, not its form.”

In re Kerr, 293 S.W.3d 353, 356 (Tex. App.—Beaumont 2009, orig. proceeding) (per curiam)

(collecting cases). So in Renwar Oil Corp. v. Lancaster, the Texas Supreme Court explained that

the nature of the suit is determined from the facts alleged in the plaintiff’s petition, the rights

asserted, and the relief sought. 276 S.W.2d 774, 775 (Tex. 1955). A court should look to “the heart

of the controversy,” and to “the controlling issue.” Id. at 776. In that way, a mandatory venue

provision may not be evaded merely by artful pleading. In re Kerr, 293 S.W.3d at 358. Even

applying that rubric would not justify reclassifying the Amended Petition as one for injunctive

relief.

In the Amended Petition, Heller alleged Kearns made material misrepresentations about

the book of aviation business that he could transfer to the new venture. According to the pleadings,

those representations induced Heller to purchase the stock in Business Air. The pleading further

alleges that Kearns had neither a book of business nor the intent to transfer the work to Business

Air. Heller further alleges that “Kearns knew Heller was ignorant of the falsity of this information

and that [Heller] did not have an equal opportunity to discover the truth.” Finally, Heller alleged

he reasonably relied on these material representations when he acquired Business Air and he was

injured as a direct and proximate result of Kearns’s fraud. In his prayer for relief, Heller requested

actual damages and exemplary damages, as well as attorney’s fees and other costs.

10 We conclude that nothing about the fraudulent misrepresentation and inducement claim

reveals an attempt to evade the mandatory venue statute by artful pleading. Heller alleges that he

spent $450,000 to buy a company based on representations that he claims were false and that

induced him to make the expenditure. Nor is the fraud pleading a disguised claim for injunctive

relief.

In Appellees declaratory relief claim, they allege that no agreement was ever reached that

would allow Kearns to claim an ownership interest in, or the right to control Business Air, nor a

right to a position in the company. Kearns also contends this request for a declaratory judgment is

akin to an injunction. In that regard, Kearns directs us to In re FPWP GP LLC, a suit to resolve a

dispute among the partners concerning “(1) their rights in and obligations to the partnership, (2)

which partnership agreement govern[ed] their relationship, and (3) which entity [was] the

partnership’s general partner.” 2017 WL 461355, at *1. The plaintiff sought both injunctive and

declaratory relief. Id. In deciding whether the relief sought was purely or primarily injunctive, the

Dallas court discounted the declaratory-judgment action because it was a different means to the

same end. But that suit still involved an “end” which included voiding actions taken by a putative

partner and prohibiting that partner from taking certain actions. Id. That relief is not sought in this

suit, which leaves only the specter that if declaratory relief is granted, then injunctive relief might

someday follow. “However, that can be said of any case.” In re Cont’l Airlines, 988 S.W.2d at

736. “The mere possibility that a defendant will disobey the final judgment of a court, causing it

to resort to enforce its judgment through injunction, does not transform the suit into an injunction

suit under section § 65.023(a).” Id. at 736–37. The declaratory judgment relief seeks the answer to

real questions: who owns and controls Business Air, Inc. and what obligations, if any, does it owe

to Kearns. Those questions would require answers independent of injunctive relief. Therefore, we

11 disagree with Kearns’s contention that Appellees are merely recasting their request for a

declaratory judgment to avoid the mandatory venue statute.

We conclude the mandatory venue statute no longer applies, and so the sole question is

whether “a substantial part of the events or omissions” giving rise to Appellees’ claims occurred

in Bexar County. See Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a)(1).

VENUE WHERE A SUBSTANTIAL PART OF THE EVENTS GIVING RISE TO THE CLAIM OCCURRED Appellees’ Amended Petition requested two forms of relief. Heller and Business Air sought

a declaratory judgment establishing: that no agreement between Heller and Kearns or between

Business Air and Kearns exists; there is no partnership between Heller and Kearns or between

Business Air and Kearns; Heller and Business Air have no contractual obligation to pay or employ

Kearns; and to declare the rights, legal status, and other legal relations of Kearns and Heller with

respect to Business Air or otherwise arising from their communications about a potential business

venture.

Heller raised his own claim for fraudulent misrepresentation and inducement under which

he sought actual damages and exemplary damages. We consider each plaintiff’s claims in turn.

A. Heller’s claims

(1) Fraudulent misrepresentation and inducement claim.

On appeal, Kearns asserts that there is no link between the essential elements of Heller’s

fraud claim and Bexar County. To prevail on a fraud claim, a plaintiff must prove:

(1) the defendant made a material misrepresentation; (2) the defendant knew the representation was false or made the representation recklessly without any knowledge of its truth; (3) the defendant made the representation with the intent that the other party would act on that representation or intended to induce the party’s reliance on the representation; and (4) the plaintiff suffered an injury by actively and justifiably relying on that representation.

12 Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 217 (Tex. 2011). These same elements

must be established in a fraudulent inducement claim. Haase v. Glazner, 62 S.W.3d 795, 798–99

(Tex. 2001).5

Heller’s affidavit provides some evidence of the following events: Kearns and Heller first

met in Bexar County in July 2021 and Kearns approached Heller about acquiring Business Air in

May 2023. In June 2023, Kearns emailed an invitation to Heller to attend a video conference about

the purchase. Heller received the email while in Bexar County and participated in the video

conference from Bexar County. The potential purchase also was discussed over the telephone and

via emails while Heller was in Bexar County. According to Heller, Kearns represented to him that

Kearns had “a well-developed book of aviation business that he would disclose and contribute to

the proposed venture.” Heller stated Kearns’s alleged book of business was “a material part of the

proposed deal and induced [him] to purchase Business Air” and he purchased Business Air in

reliance on Kearns’s promise that he would disclose and transfer his book of business to Business

Air. Heller alleged these representations were material to him because he did not believe the

business would succeed without an existing book of aircraft owners that would allow Business Air

to manage their private aircraft. Heller said he received Kearns’s representations during the

teleconference that he participated in from Bexar County, their face-to-face meeting in Bexar

5 On appeal, Kearns asserts the existence of a contract is an element of a fraud claim and the existence of a contract moots Appellees’ entire lawsuit. But a plaintiff need not prove the merits of its cause of action at the venue stage. Tex. R. Civ. P. 87(2)(b) (“It shall not be necessary for a claimant to prove the merits of a cause of action, but the existence of a cause of action, when pleaded properly, shall be taken as established as alleged by the pleadings.”); see also KW Const. v. Stephens & Sons Concrete Contractors, Inc., 165 S.W.3d 874, 882–83 (Tex. App.—Texarkana 2005, pet. denied) (holding “events or omissions pertaining to two elements of . . . breach of contract claim [were] sufficient to qualify as a ‘substantial part’ of the plaintiff’s claim and sufficiently connect the claim to Lamar County”) (emphasis added); Clear Diamond, Inc. v. Zapata, No. 03-20-00057-CV, 2021 WL 3572725, at *8 (Tex. App.— Austin Aug. 13, 2021, no pet.) (mem. op.) (“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.”).

13 County, during telephone calls in Bexar County, and via emails he received and read in Bexar

County.

“Texas courts have stated that the receipt of telephone calls and letters in a particular county

weighs in favor of a finding that venue is appropriate in that county.” Siemens Corp. v. Bartek,

No. 03-04-00613-CV, 2006 WL 1126219, at *6–7 (Tex. App.—Austin Apr. 28, 2006, no pet.)

(mem. op.) (the plaintiffs received representations about retention bonuses in Travis County by

email, letter, and telephone); see also KW Const. v. Stephens & Sons Concrete Contractors, Inc.,

165 S.W.3d 874, 882–83 (Tex. App.—Texarkana 2005, pet. denied) (finding venue proper in

county based on a phone call and a mailed check to that county that “connect[ed]” the defendants’

actions to two elements of breach of contract); Massey v. Columbus State Bank, 35 S.W.3d 697,

700 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (although court ruled venue issue was

waived, it noted venue was proper because case filed in county in which all or substantial part of

events giving rise to lawsuit occurred, including bank’s receipt of harassing phone calls and letters

from Massey); Colonial Cnty. Mut. Ins. Co. v. Valdez, 30 S.W.3d 514, 527 (Tex. App.—Corpus

Christi 2000, no pet.) (court concluded venue proper in Cameron County, in part, because Colonial

mailed letters to Valdez in Cameron County concerning claim and Valdez’s responses were mailed

from Cameron County; and alleged misrepresentations were made in Cameron County).

When a plaintiff relies on making represenations to satisfy venue, those represenations

must relate to an essential element of the claim. Double Diamond-Delaware, Inc. v. Alfonso, 487

S.W.3d 265, 275 (Tex. App.—Corpus Christi 2016, no pet.) (concluding that while represenations

were made in certain county, none related to an essential element of the particular claim asserted).

The represenataions that Heller relies on meet that test. They relate to the existance of a book of

14 business that Heller claims was essential to his decision to buy the stock in Business Air, and that

absent those represenations, he would not have purchased the business.

(2) Declaratory relief

Heller’s declaratory relief claim focuses on who owns Business Air, and what obligations

it may owe to Kearns. Based on the pleaded allegations, there is no finalized written contract

between Kearns and Heller. Instead, any contract (and thus ownership of or duties owed by

Business Air) would be shown, if at all, through a series of communications that could be pieced

together to show a definitive offer and acceptance. And the gist of the declaratory relief claim is

the absence of any offer giving Kearns rights in Business Air that Heller accepted. Heller’s

affidavit attests that many of the communications between the parties occurred in Bexar County.

Even at that, an essential premise of his claim is the absence of either an offer or acceptance. So if

a firm offer originated in Travis County and was transmitted to Bexar County, Heller would likely

need to show the absence of an acceptance made in Bexar County—which is what his affidavit

describes. We conclude the events alleged to have occurred in Bexar County constitute a

substantial part of the events giving rise to Heller’s declartory relief.

B. Request for declaratory judgment by Business Air

An action for declaratory judgment is governed by the general venue rules for civil actions.

See Bonham State Bank v. Beadle, 907 S.W.2d 465, 471 (Tex. 1995). Focusing on the requirement

that each plaintiff must show venue, Kearns first attacks whether Business Air met that burden.

His three-pronged attack first includes Kearns’s claims that the declaratory relief that Business Air

sought is primarily injunctive—a claim we reject as discussed above. But he offers two other

arguments. He claims that Business Air presented no evidence at all, because the only evidence it

filed was through Heller’s affidavit which claims Heller is its corporate representative. Kearns

15 challenges that assertion in the affidavit. Next, Kearns contends that Business Air has no

connection to Bexar County, as the company is based in Montgomery County. We address those

two claims in turn.

(1) Heller’s affidavit

Appellees attached Heller’s affidavit to their response which itself attached copies of

various emails between Kearns and Heller and others. Before the trial court, Kearns filed an

objection in which his sole complaint was that “Heller’s sham affidavit consisting of conclusory

statements and factually impossible and inconsistent allegations does not amount to evidence that

Bexar County is the proper venue.” The trial court never ruled on that objection. Kearns did not

raise any objections before the trial court regarding the other documents attached to Appellees’

response.

An objection that an affidavit is conclusory is an objection to the affidavit’s substance

which does not require a ruling by the trial court, and which may be raised for the first time on

appeal. See Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 166 (Tex. 2018) (per curiam) (stating

that defects in the substance of an affidavit may be raised for the first time on appeal, but defects

in the form of an affidavit must be objected to and ruled on in the trial court or they are waived);

Trejo v. Laredo Nat’l Bank, 185 S.W.3d 43, 51 n.9 (Tex. App.—San Antonio 2005, no pet.)

(same). On appeal, however, Kearns does not challenge Heller’s affidavit as being conclusory. So

we do not address that complaint.

Instead, for the first time on appeal, Kearns’s objects that the affidavit fails to show that

Heller may act as an agent of Busniess Air, and thus speak for the company.6 Kearns develops

6 The affidavit recites: “I own 100% of the common stock of Business Air, Inc. I am a custodian of its records and by virtue of my duties and responsibilities am familiar with the manner in which the records and its affiliated entities are

16 two threads for that claim. First, even if Heller owns 100% of Business Air’s common stock, that

does not show he is an officer or authorized to speak for the corporation. Second, Heller’s

statement in the affidavit that he is the custodian of records and statements about his duties are

“deficient as a matter of law” to demonstrate he was authorized to act on behalf of Business Air.

Kearns also complains, for the first time on appeal, that the attachments to Heller’s affidavit are

not competent evidence as business records.

But we need not address the merits of these complaints because, because even if Heller has

not established at the venue stage that he has authority to speak on Business Air’s behalf, the

substance of his affidavit contains undisputed facts that underlie Appellees’ argument that venue

is proper in Bexar County. Each plaintiff must indeed “independently of every other plaintiff,

establish proper venue.” Tex. Civ. Prac. & Rem. Code Ann. § 15.003(a). But that requirement does

not also mean that each plaintiff must file its own affidavit and exhibits, nor preclude one plaintiff

from citing to record evidence offered by another plaintiff. Section 15.003 in fact commands that

we must include the entire record in our review. So even if we consider Heller’s affidavit only as

his own recollection of events, nothing precludes Businss Air from relying on the same affidavit

to establish facts supporting its own venue argument. Stated otherwise, Kearns does not show why

the venue evidence of one plaintiff (Heller) cannot be considered by the court for use by another

plaintiff (here, Business Air). We do so and reject Kearns’s argument, even if true, that because

no authorized representative of Business Air signed an affidavit, its claims must be transferred.

created and maintained. As part of my duties to Business Air, Inc., I regularly conduct business conversations and make business decisions in San Antonio, Texas.”

17 (2) Business Air’s connection to Bexar County

Heller’s affidavit recites that as part of his duties to Business Air, Inc., he regularly

conducted business conversations and made business decisions in San Antonio, Texas. He avers

that “[s]ince acquiring ownership of Business Air, Inc., I have managed it primarily from San

Antonio and, to a small extent, from Houston.” He pays employee salaries from San Antonio, as

he does for airplane and engine repairs. And as set out above, the essense of the declaratory

judgment claim is that the several emails and other communicaitons exchanged between Heller

and Kearns, both before and after Heller purchased Business Air’s stock, do not establish Kearns’s

right of ownerhip or control of Business Air. Many of those communications were made in Bexar

County or received there. These assertions are enough to show that a substantial part of Business

Air’s claim arose in Bexar County.

We therefore conclude that the trial court did not err in refusing to transfer venue for

Business Air’s claims.

CONCLUSION Having determined the mandatory venue statute no longer applies and each Appellee

established proper venue in Bexar County, we overrule Kearns’s single issue on appeal (and its

subparts as noted above) and affirm the trial court’s Order Denying Defendant’s Motion to

Transfer Venue.

JEFF ALLEY, Chief Justice

June 18, 2024

Before Alley, C.J., Palafox and Soto, JJ.