NUMBER 13-22-00520-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
TEXAS TRUCK CENTERS, INC., Appellant,
v.
BRIAN BASS, Appellee.
ON APPEAL FROM THE COUNTY COURT AT LAW OF WALKER COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Peña Memorandum Opinion by Justice Peña
Appellant Texas Truck Centers, Inc. (Texas Truck) appeals the trial court’s order
denying its motion to transfer venue in a suit filed by appellee Brian Bass. In two issues, which we treat as one, Texas Truck argues that the trial court erred in denying its motion
to transfer venue from Walker County to Brazos County. We reverse and remand. 1
I. BACKGROUND
According to his petition, Bass purchased six fuel injectors from Texas Truck for
installation in the engine of his flatbed truck. The purchase occurred at Texas Truck’s
location in Brazos County. Bass brought the fuel injectors to North Texas Heavy
Equipment Repair, Inc. in Walker County for installation. During installation, a mechanic
discovered that the injectors were over-fueling, causing the engine’s cylinders to leak.
The mechanic ultimately reassembled the engine, using the same fuel injectors
purchased at Texas Truck. Later, the mechanic test drove the truck for six miles, when
he heard a loud “pop” from the engine. Upon inspection, the mechanic learned that one
of the fuel injectors failed, which caused irreparable damage to the engine. Bass sued
Texas Truck in Walker County for breach of contract and breach of the implied warranty
of merchantability, alleging that Texas Truck supplied faulty fuel injectors. North Texas
Heavy Equipment Repair, Inc. intervened in the suit and sued Bass for breach of contract
and quantum meruit. 2
Later, Texas Truck filed a motion to transfer venue and, subject thereto, an original
answer. In its motion, Texas Truck argued that venue was not proper in Walker County
because the purchase of fuel injectors occurred in Brazos County. Texas Truck
maintained that the case should be transferred to Brazos County. 3 Texas Truck supported
1 This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
2 North Texas Heavy Equipment Repair, Inc. is not a party to this appeal.
3 In the trial court, Texas Truck alternatively requested transfer to Harris County, where its principal
place of business is located. On appeal, it only requests transfer to Brazos County.
2 the motion with the affidavit of its general manager Wayne McCoy and a parts invoice
documenting the purchase. Texas Truck’s evidence shows that Bass paid cash for the
fuel injectors at its Brazos County location.
Bass filed a response to the motion to transfer venue, arguing that a substantial
part of the events underlying his claims occurred in Walker County, where the fuel
injectors were installed and ultimately failed.
Texas Truck later filed an amended motion to transfer venue and a supplement
thereto, specifically denying Bass’s pleaded venue facts. See Smith v. Smith, 541 S.W.3d
251, 256–57 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“[A]n amended motion to
transfer venue that is filed before the trial court rules on a timely original motion relates
back to the original motion.”). Texas Truck maintained that the contract’s formation,
performance, and alleged breach occurred in Brazos County and that no substantial part
of Bass’s claims occurred in Walker County.
Following a hearing, the trial court denied Texas Truck’s motion to transfer venue.
This interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.003.
II. DISCUSSION
A. Standard of Review & Applicable Law
Venue may be proper under general, mandatory, or permissive venue rules.
Perryman v. Spartan Tex. Six Capital Partners, Ltd., 546 S.W.3d 110, 130 (Tex. 2018).
In general, plaintiffs are allowed to choose venue first, and the plaintiff’s choice cannot be
disturbed as long as suit is initially filed in a county of proper venue. Wilson v. Tex. Parks
& Wildlife Dep’t, 886 S.W.2d 259, 260 (Tex. 1994); Shamoun & Norman, LLP v. Yarto Int’l
Grp., 398 S.W.3d 272, 287 (Tex. App.—Corpus Christi–Edinburg 2012, pet. dism’d).
3 Venue questions are to be decided 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 trial court must consider all venue facts pleaded by the plaintiff as true unless they are
specifically denied by an adverse party. TEX. R. CIV. P. 87(3)(a). Once an adverse party
specifically denies venue facts, the plaintiff must then respond with prima facie proof of
those facts. Id. “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. If the plaintiff satisfies its burden, then
the trial court must maintain venue in the plaintiff’s chosen county unless a mandatory
venue provision applies or the defendant brings forth conclusive evidence that “destroys”
the plaintiff’s prima facie proof. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993);
Shamoun & Norman, 398 S.W.3d at 288; see TEX. R. CIV. P. 87(3)(c). But, if the plaintiff
fails to discharge its burden, the right to choose a proper venue passes to the defendant,
who must then prove that venue is proper in the defendant’s chosen county. In re Mo.
Pac. Ry. Co., 998 S.W.2d 212, 216 (Tex. 1999); see TEX. CIV. PRAC. & REM. CODE ANN.
§ 15.063(1).
“Proper venue” means: (1) the mandatory venue as provided by statute; or (2) if
there is no mandatory venue, the venue provided under the general venue statute or the
permissive venue provisions of subchapter C of civil practice and remedies code chapter
15. TEX. CIV. PRAC. & REM. CODE ANN. § 15.001(b). Under the general venue statute, 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;
4 (2) in the county of defendant’s residence at the time the cause of action accrued if defendant is a natural person;
(3) in the county of the defendant’s principal office in this state, if the defendant is not a natural person; or
(4) if Subdivisions (1), (2), and (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action.
Id. § 15.002(a).
Because this is an interlocutory appeal from a multi-plaintiff case, we review the
trial court’s venue ruling “based on an independent determination from the record and not
under either an abuse of discretion or substantial evidence standard.” Id. § 15.003(c)(1).
B. Analysis
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NUMBER 13-22-00520-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
TEXAS TRUCK CENTERS, INC., Appellant,
v.
BRIAN BASS, Appellee.
ON APPEAL FROM THE COUNTY COURT AT LAW OF WALKER COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Peña Memorandum Opinion by Justice Peña
Appellant Texas Truck Centers, Inc. (Texas Truck) appeals the trial court’s order
denying its motion to transfer venue in a suit filed by appellee Brian Bass. In two issues, which we treat as one, Texas Truck argues that the trial court erred in denying its motion
to transfer venue from Walker County to Brazos County. We reverse and remand. 1
I. BACKGROUND
According to his petition, Bass purchased six fuel injectors from Texas Truck for
installation in the engine of his flatbed truck. The purchase occurred at Texas Truck’s
location in Brazos County. Bass brought the fuel injectors to North Texas Heavy
Equipment Repair, Inc. in Walker County for installation. During installation, a mechanic
discovered that the injectors were over-fueling, causing the engine’s cylinders to leak.
The mechanic ultimately reassembled the engine, using the same fuel injectors
purchased at Texas Truck. Later, the mechanic test drove the truck for six miles, when
he heard a loud “pop” from the engine. Upon inspection, the mechanic learned that one
of the fuel injectors failed, which caused irreparable damage to the engine. Bass sued
Texas Truck in Walker County for breach of contract and breach of the implied warranty
of merchantability, alleging that Texas Truck supplied faulty fuel injectors. North Texas
Heavy Equipment Repair, Inc. intervened in the suit and sued Bass for breach of contract
and quantum meruit. 2
Later, Texas Truck filed a motion to transfer venue and, subject thereto, an original
answer. In its motion, Texas Truck argued that venue was not proper in Walker County
because the purchase of fuel injectors occurred in Brazos County. Texas Truck
maintained that the case should be transferred to Brazos County. 3 Texas Truck supported
1 This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
2 North Texas Heavy Equipment Repair, Inc. is not a party to this appeal.
3 In the trial court, Texas Truck alternatively requested transfer to Harris County, where its principal
place of business is located. On appeal, it only requests transfer to Brazos County.
2 the motion with the affidavit of its general manager Wayne McCoy and a parts invoice
documenting the purchase. Texas Truck’s evidence shows that Bass paid cash for the
fuel injectors at its Brazos County location.
Bass filed a response to the motion to transfer venue, arguing that a substantial
part of the events underlying his claims occurred in Walker County, where the fuel
injectors were installed and ultimately failed.
Texas Truck later filed an amended motion to transfer venue and a supplement
thereto, specifically denying Bass’s pleaded venue facts. See Smith v. Smith, 541 S.W.3d
251, 256–57 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“[A]n amended motion to
transfer venue that is filed before the trial court rules on a timely original motion relates
back to the original motion.”). Texas Truck maintained that the contract’s formation,
performance, and alleged breach occurred in Brazos County and that no substantial part
of Bass’s claims occurred in Walker County.
Following a hearing, the trial court denied Texas Truck’s motion to transfer venue.
This interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.003.
II. DISCUSSION
A. Standard of Review & Applicable Law
Venue may be proper under general, mandatory, or permissive venue rules.
Perryman v. Spartan Tex. Six Capital Partners, Ltd., 546 S.W.3d 110, 130 (Tex. 2018).
In general, plaintiffs are allowed to choose venue first, and the plaintiff’s choice cannot be
disturbed as long as suit is initially filed in a county of proper venue. Wilson v. Tex. Parks
& Wildlife Dep’t, 886 S.W.2d 259, 260 (Tex. 1994); Shamoun & Norman, LLP v. Yarto Int’l
Grp., 398 S.W.3d 272, 287 (Tex. App.—Corpus Christi–Edinburg 2012, pet. dism’d).
3 Venue questions are to be decided 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 trial court must consider all venue facts pleaded by the plaintiff as true unless they are
specifically denied by an adverse party. TEX. R. CIV. P. 87(3)(a). Once an adverse party
specifically denies venue facts, the plaintiff must then respond with prima facie proof of
those facts. Id. “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. If the plaintiff satisfies its burden, then
the trial court must maintain venue in the plaintiff’s chosen county unless a mandatory
venue provision applies or the defendant brings forth conclusive evidence that “destroys”
the plaintiff’s prima facie proof. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993);
Shamoun & Norman, 398 S.W.3d at 288; see TEX. R. CIV. P. 87(3)(c). But, if the plaintiff
fails to discharge its burden, the right to choose a proper venue passes to the defendant,
who must then prove that venue is proper in the defendant’s chosen county. In re Mo.
Pac. Ry. Co., 998 S.W.2d 212, 216 (Tex. 1999); see TEX. CIV. PRAC. & REM. CODE ANN.
§ 15.063(1).
“Proper venue” means: (1) the mandatory venue as provided by statute; or (2) if
there is no mandatory venue, the venue provided under the general venue statute or the
permissive venue provisions of subchapter C of civil practice and remedies code chapter
15. TEX. CIV. PRAC. & REM. CODE ANN. § 15.001(b). Under the general venue statute, 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;
4 (2) in the county of defendant’s residence at the time the cause of action accrued if defendant is a natural person;
(3) in the county of the defendant’s principal office in this state, if the defendant is not a natural person; or
(4) if Subdivisions (1), (2), and (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action.
Id. § 15.002(a).
Because this is an interlocutory appeal from a multi-plaintiff case, we review the
trial court’s venue ruling “based on an independent determination from the record and not
under either an abuse of discretion or substantial evidence standard.” Id. § 15.003(c)(1).
B. Analysis
Bass claims venue is proper in Walker County under the general venue statute
because that is the county in which “all or a substantial part of the events or omissions
giving rise to the claim occurred.” Id. § 15.002(a)(1). Texas Truck argues that such events
or omissions occurred in Brazos County where the sales transaction for the allegedly
defective fuel injectors occurred and prays for transfer of the case to Brazos County.
1. Walker County
We first note that Texas Truck denied Bass’s pleaded venue facts, thus requiring
Bass to respond with prima facie proof of those facts. See TEX. R. CIV. P. 87(3)(a).
Because Bass did not present any evidence in response to Texas Truck’s motion to
transfer venue, he failed to discharge this burden. See In re Mo. Pac. Ry. Co., 998 S.W.2d
at 216. Despite this failure, Bass argues that venue in Walker County is appropriate due
to judicial economy. We disagree.
Texas Civil Practice and Remedies Code § 15.002(b) provides that “[f]or the
convenience of the parties and witnesses and in the interest of justice, a court may
5 transfer an action from a county of proper venue . . . to any other county of proper venue
on motion of a defendant filed and served concurrently with or before the filing of [its]
answer” provided that the trial court makes certain findings. TEX. CIV. PRAC. & REM. CODE
ANN. § 15.002(b). This section only authorizes a transfer of venue for convenience upon
a defendant’s motion. See id.; Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d
673, 683 (Tex. App.—Austin 2003, no pet.). As the plaintiff in this suit against Texas
Truck, Bass cannot invoke this section. See Chiriboga, 96 S.W.3d at 683 (“The purpose
of [§] 15.002(b) is to change venue, not to serve as a basis to maintain venue in the first
instance. It certainly cannot be a basis for a plaintiff to maintain an action in a county of
improper venue.”).
For the foregoing reasons, we conclude that Bass failed to establish proper venue
in Walker County. See Ruiz, 868 S.W.2d at 757; Shamoun & Norman, 398 S.W.3d at
288. Therefore, we must determine whether Texas Truck presented prima facie evidence
supporting venue in Brazos County. See In re Mo. Pac. Ry. Co., 998 S.W.2d at 216.
2. Brazos County
In examining which county all or a substantial part of the events or omissions giving
rise to a claim occurred, we examine the essential elements of the plaintiff’s claims.
Double Diamond-Delaware, Inc. v. Alfonso, 487 S.W.3d 265, 274 (Tex. App.—Corpus
Christi–Edinburg 2016, no pet.) (citing Chiriboga, 96 S.W.3d at 680). Bass brings claims
for breach of contract and breach of the implied warranty of merchantability. An implied
warranty claim sounds in contract. See JCW Elecs., Inc. v. Garza, 257 S.W.3d 701, 705
(Tex. 2008) (explaining that a breach of implied warranty claim sounds in contract when,
as here, “the damages are purely economic”); Howard Indus., Inc. v. Crown Cork & Seal
6 Co., 403 S.W.3d 347, 352 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“[A]n implied
warranty becomes part of the terms of a contract.”). In venue cases concerning a contract
claim, courts consider “where the contract was made, performed, and breached.” See In
re Red Dot Bldg. Sys., Inc., 504 S.W.3d 320, 323 (Tex. 2016) (orig. proceeding) (listing
cases).
Here, Texas Truck presented evidence that all events concerning the purchase of
the fuel injectors occurred at Texas Truck’s location in Brazos County. The invoice for the
purchase shows that Bass paid cash and received the fuel injectors at this location. There
is no evidence that any part of this transaction occurred in a different venue. In addition,
any breach by Texas Truck occurred upon the delivery of the allegedly defective product
in Brazos County. See Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 896
(Tex. App.—Houston [1st Dist.] 2002, no pet.) (explaining that if a seller fails to make
delivery of a product, a breach of contract occurs, but if the seller makes delivery but the
product is nonconforming a breach of warranty occurs); see also Sunstrand Corp. v. Allied
Tanks Serv., Inc., 653 S.W.2d 311, 314–15 (Tex. App.—San Antonio 1983, writ dism’d)
(explaining in a breach of warranty action regarding the purchase of a truck that “the
breach of warranty, if any, . . . occurred when the truck was sold”).
For these reasons, we conclude that Texas Truck put forth prima facie evidence
that Brazos County is a county of proper venue under Texas Civil Practice and Remedies
Code § 15.002(a). Therefore, we hold that the trial court erred in denying Texas Truck’s
motion to transfer venue to Brazos County. We sustain Texas Truck’s sole issue.
7 III. CONCLUSION
We reverse the trial court’s order denying Texas Truck’s motion to transfer venue
and remand with instructions to transfer the case to Brazos County.
L. ARON PEÑA Jr. Justice
Delivered and filed on the 1st day of August, 2024.