Harding Bars, LLC D/B/A the Aquifer Bar, Bars R US, Inc., and Ramsey White Bars LLC D/B/A Kennedy's Public House v. Kayle McCaskill

OPINION
No. 04-11-00629-CV
HARDING BARS, LLC d/b/a The Aquifer Bar; Ramsey-White Bars, LLC d/b/a Kennedy’s
Public House; and Robert Stinziano;
Appellants
v.
Kaylie MCCASKILL; Martin Viesca and Sandra Viesca, as Legal Heirs and Personal
Representatives of Karla Viesca, Deceased;
Appellees
From the 293rd Judicial District Court, Maverick County, Texas
Trial Court No. 11-01-26198-MCV
Honorable Cynthia L. Muniz, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Marialyn Barnard, Justice
Delivered and Filed: June 13, 2012
DISMISSED FOR LACK OF JURISDICTION
In an opinion and judgment dated February 1, 2012, we dismissed this appeal for want of
jurisdiction. Two of the appellants filed motions for rehearing. We deny the appellants’
motions; however, we withdraw our opinion and judgment of February 1, 2012, and issue this
opinion and judgment in its place. This is an interlocutory appeal from a trial court’s order
04-11-00629-CV
denying appellants’ motions to transfer venue. Appellees contend this appeal should be
dismissed for lack of jurisdiction. We agree and dismiss the appeal for want of jurisdiction.
BACKGROUND
On October 17, 2010, Kaylie McCaskill was a passenger in an automobile driven by
Robert Stinziano. According to McCaskill, Stinziano was intoxicated when he drove on the
wrong side of the road and ran a red light, broadsiding a vehicle driven by Karla Viesca, the
daughter of Martin and Sandra Viesca (“the Viescas”). The accident resulted in Karla’s death
and injuries to McCaskill. Prior to this, McCaskill asserts Stinziano was provided alcohol at the
bars owned by Harding Bars, LLC and Ramsey-White Bars, LLC in Bexar County. The accident
occurred in Bexar County, Texas.
McCaskill filed suit in Maverick County, Texas against Stinziano, the Viescas “as legal
heirs and personal representatives of Karla Viesca, deceased,” Harding Bars, and Ramsey-White
Bars. Her suit claimed negligence on the part of both Stinziano and Karla, but she asserted
actions under the Dram Shop Act against the Bars. At the time of the suit, the Viescas were the
only defendants residing in Maverick County. Stinziano resided in Bexar County and Harding
Bars and Ramsey-White Bars’ principal places of business were located in Bexar County. The
Viescas filed an answer to this lawsuit. The other defendants, Stinziano, Harding Bars, and
Ramsey-White Bars, each filed a motion to transfer venue to Bexar County. Subsequently, the
Viescas “Individually and as Representatives for the Benefit of all Persons Entitled to Recover
for the Wrongful Death of Karla M. Viesca, deceased,” filed a “cross action” in Maverick
County against Stinziano, Harding Bars, and Ramsey-White Bars asserting a survival claim and
a wrongful death claim. The trial court denied the motions to transfer venue to Bexar County.
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04-11-00629-CV
DISCUSSION
On appeal, appellants assert the trial court erred in denying their motions to transfer
venue from Maverick County to Bexar County. However, as a threshold issue, we must first
determine whether this court’s appellate jurisdiction is properly invoked. Appellees argue this
appeal must be dismissed for lack of jurisdiction in accordance with section 15.064 of the Texas
Civil Practice and Remedies Code (“the Code”). See TEX. CIV. PRAC. & REM. CODE ANN.
§ 15.064 (West 2002). In response, appellants argue this court has interlocutory jurisdiction
pursuant to section 15.003(b) and (c) of the Code. See id. § 15.003(b)–(c) (West Supp. 2011).
Generally, interlocutory appeal is unavailable from a trial court’s determination of a
venue question. Id. § 15.064(a) (“The court shall determine venue questions from the pleadings
and affidavits. No interlocutory appeal shall lie from the determination.”). Consequently, a
party normally must wait until a final judgment occurs to appeal an erroneous ruling regarding
venue. Id. § 15.064(b); Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999);
Elec. Data Sys. Corp. v. Pioneer Elecs. (USA) Inc., 68 S.W.3d 254, 257 (Tex. App.—Fort Worth
2002, no pet.).
On the other hand, when a case involves multiple plaintiffs, wherein plaintiffs are
included by joinder, intervention, because the lawsuit was begun by more than one plaintiff, or
otherwise, section 15.003 establishes a limited right of interlocutory appeal to contest a trial
court’s venue determination. TEX. CIV. PRAC. & REM. CODE § 15.003(b)–(c); Abel, 997 S.W.2d
at 601; Elec. Data Sys. Corp., 68 S.W.3d at 257. Subsection (b) of section 15.003 “allows an
interlocutory appeal of a trial court’s determination that (1) a plaintiff did or did not
independently establish proper venue, or (2) a plaintiff that did not independently establish
proper venue did or did not establish the four requirements of subsection (a).” Sw. Bell Tel. Co.
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04-11-00629-CV
v. Superior Payphones, Ltd., No. 13-05-661-CV, 2006 WL 417423, at *2 (Tex. App—Corpus
Christi Feb. 23, 2006, pet. dism’d); see TEX. CIV. PRAC. & REM. CODE § 15.003(b).
Here, appellants argue this court has jurisdiction to hear the interlocutory appeal because
the Viescas were defendants in their representative capacities but were cross-claimants in their
individual capacities. In other words, appellants argue the Viescas’ cross-claim was in effect a
“joinder” as a second set of “plaintiffs” in the original action because individual and
representative capacities are separate and distinct. Appellants contend that an appearance in a
suit in one capacity does not include an appearance in the other capacity unless both capacities
are specifically named in the suit. 1 As a result, appellants contend this court has jurisdiction to
hear the interlocutory appeal under section 15.003. We disagree.
Here, McCaskill’s suit was instituted against the Viescas both as legal heirs and as
personal representatives of Karla Viesca, deceased; the Viescas brought their cross-claim both
individually and as representatives for all persons entitled to recover for Karla’s wrongful death.
There is no dispute the Viescas are the only legal heirs of their deceased daughter, Karla. Thus,
as legal heirs and as individuals, the Viescas are the same persons both defending McCaskill’s
suit and pursuing their own counterclaim.
Additionally, both McCaskill’s and the Viescas’ claims against Stinziano, Harding Bars,
and Ramsey-White Bars are alleged to involve the same series of events. See TEX. R. CIV. P.
97(e) (“A pleading may state as a cross-claim any claim by one party against a co-party arising
1
As support for this argument, appellants rely on Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 518 (Tex.
1984), in which a party appeared in the first lawsuit as next friend of an injured child and, several months later, the
party filed a second action individually, seeking recovery on a claim of loss of consortium. Id. at 519. The
defendant was granted summary judgment on this new action on the grounds that the judgment in the previous case
and the doctrine of res judicata barred recovery by the party individually. Id. The Texas Supreme Court, however,
held that the party had appeared only in a representative capacity in the first action, and that her claims as an
individual could not be subsequently barred in the second action. Id. We believe this case is distinguishable from
the facts in the present case. In Gracia, the party was never a plaintiff in the original lawsuit—she was only in the
original lawsuit as a next friend for her minor child. See id. at 518. In contrast, the Viescas, as legal heirs, were
named defendants in McCaskill’s suit and were not simply representing their daughter.
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out of the transaction or occurrence that is the subject matter either of the original action or of a
counterclaim therein.”); Centerpoint Energy Houston Elec., LLC v. Brunkenhoefer, No. 09-03-
492 CV, 2004 WL 256836, at *3 (Tex. App.—Beaumont Feb. 12, 2004, no pet.). Similarly, the
record does not demonstrate the trial court realigned the parties so as to make McCaskill and the
Viescas multiple plaintiffs.
We conclude the Viescas’ cross-claim did not transform them into “plaintiffs” because
they were sued by McCaskill and brought their cross-claim in the same capacities—individually
as legal heirs and as personal representatives of Karla’s estate. As such, venue for their cross-
claim is established in section 15.062(a) of the Code which reads, “Venue of the main action
shall establish venue of a counterclaim, cross claim, or third-party claim properly joined under
the Texas Rules of Civil Procedure or any applicable statute.” TEX. CIV. PRAC. & REM. CODE
§ 15.062(a). Thus, jurisdiction of this court to hear the interlocutory appeal was not invoked
under section 15.003(c). Accordingly, we hold we do not have jurisdiction over this appeal.
CONCLUSION
Based on the foregoing, we dismiss the appeal for want of jurisdiction.
Sandee Bryan Marion, Justice
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