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Heniff Transporation Systems, LLC v. Mack

Court of Appeals of Texas, Ninth District, Beaumont

October 24, 2019


          Submitted on June 6, 2019

          On Appeal from the 58th District Court Jefferson County, Texas Trial Cause No. A-200, 955

          Before McKeithen, C.J., Kreger and Horton, JJ.


          HOLLIS HORTON Justice

         The Texas long-arm statute authorizes Texas courts to exercise jurisdiction over nonresident defendants in lawsuits if the defendant commits a tort in whole or in part in Texas.[1] Following a hearing on Heniff Transportation Systems, LLC's (Heniff's) special appearance, the trial court found it possessed jurisdiction over Heniff under the Texas long-arm statute. The underlying suit arose following a wreck in Louisiana, which occurred in October 2017. After the collision, the wife and children of the man who was the passenger in a truck involved in the wreck sued Heniff in Jefferson County, Texas.

         Heniff appeals from the trial court's ruling.[2] In four issues, Heniff advances the following arguments:

• The evidence the trial court considered when it denied the special appearance fails to establish any substantial connection between Heniff's conduct in Texas and the wreck;
• The evidence the trial court considered fails to prove Heniff's principal place of business is in Texas;
• The trial court erred by failing to comply with Heniff's request for written findings; and
• The trial court erred by overruling Heniff's objections to the affidavit of Heniff's former assistant manager.

         We conclude the pleadings and evidence authorized the trial court to find the court could exercise jurisdiction over the plaintiffs' claims.


         Heniff is a limited liability company formed in Illinois. The company operates as an interstate motor carrier specializing in hauling liquids in bulk. Headquartered in Illinois, Heniff has facilities and employees in Texas.

         John Mack was the lessor-operator of the tractor involved in the wreck. Mack was fatally injured in the wreck. In July 2017, Mack leased his tractor to Heniff. Under the lease, Mack had the right to hire drivers to assist him in discharging his duties to Heniff. On the trip that ended in the wreck, Mack agreed to Heniff's request to allow Alex Willett, a Heniff employee, to accompany him so Willett could learn how to discharge the type of chemicals Heniff's customers wanted Heniff to deliver to the customer's plant in Florida. After Mack and Willett connected the tanker to Mack's tractor at a chemical plant in Jefferson County, Texas, they left with the tanker for Florida. On the way, Willett rear ended a car traveling on the interstate in front of them. Mack and Willett were both killed in the wreck.

         Zola Mack is Mack's surviving spouse. Less than a month after Mack's death, Zola, individually, on behalf of Mack's estate, and as the next friend of her son, a minor, sued Heniff seeking to recover on their claims that arose from Mack's death.[3] We will refer to Zola in the remainder of the opinion to mean Zola, individually, and in her capacities as the representative of Mack's estate and her minor son's next friend.

         Heniff responded to Zola's suit with a special appearance, which is a dilatory plea defendants use to challenge whether a trial court has jurisdiction over the defendant to decide the merits of a plaintiff's case.[4] In its special appearance, Heniff claimed that the negligence that caused the wreck "would necessarily have occurred in Louisiana."[5] To support its special appearance, Heniff attached an affidavit from its safety director, Leon Lupina. Lupina's affidavit includes the following statements:

• Heniff is an Illinois-based entity whose corporate headquarters are in Illinois;
• Heniff did not own the tractor involved in the collision, but instead, the company leased the tractor involved in the wreck from Mack;
• On the night of October 29, 2017, Mack left a chemical plant in Jefferson County, Texas, to take a load of chemicals to Florida;
• the driver's logs for Mack's truck show the last time Mack's truck was at Heniff's yard was on October 28, 2017;
• Heniff conducts trucking operations from its yard in Jefferson County, Texas; and
• Heniff's operations "in Texas [are not] substantial enough, continuous enough, or systematic enough to justify suit in Texas . . . on causes of action arising from the truck accident that occurred in Louisiana."

         About four months after Heniff filed its special appearance, Mack's other children, Fredericka Mack and John Christopher Mack, intervened as plaintiffs in the suit. Before the hearing on Heniff's special appearance, Zola amended her pleadings several times. Zola's fourth amended petition, her live pleading when the hearing occurred, alleges that Heniff committed a tort (in whole or in part) in Texas.

          Generally, Zola's petition alleges facts which, on their face, assert Heniff committed two torts (in whole or part) in Texas. First, she alleged that Heniff, acting through its employee, Willett, negligently violated Federal Motor Safety Regulations by leaving for Florida when he was suffering from fatigue.[6] Second, she alleged that Heniff negligently violated Federal Motor Safety Regulations by allowing Willett to leave for Florida when it new or should have known he was fatigued.[7] Zola's pleadings also include a conclusory statement, unsupported by any specific facts, asserting the trial court could exercise general jurisdiction over her claims.

         In due course, Zola responded to Heniff's special appearance. In her response, Zola asked the trial court to consider an affidavit she obtained from an individual named Pamela Hayes. In her affidavit, Hayes states that in 2017, she worked as Heniff's assistant manager at its trucking terminal in Jefferson County, Texas. Hayes asserts that as Heniff's assistant manager, she could take drivers carrying loads for Heniff off the road. And Hayes swore she dispatched Mack and Willett "on the run involving the crash." She explained that, before the two men left on the trip that involved the wreck, Mack and Willett had returned from Florida with a tanker they had taken there from Texas because Heniff's customer rejected the load when it arrived. According to Hayes, upon learning that Heniff's customer rejected the tanker, she told Mack to return to Texas, pick up another tanker, and take it to Florida. Hayes' affidavit states Mack followed her instructions.

         Several months before the hearing on Heniff's special appearance, Heniff filed additional exhibits for the trial court to consider in resolving Heniff's challenge to the court's jurisdiction over Heniff in the case. The additional exhibits include a copy of the lease governing Heniff's use of Mack's tractor. Among the terms of the lease is an Illinois forum-selection clause.[8] Heniff, both here and in the trial court, relies on a term in the lease stating it hired Mack as an independent contractor to argue the evidence before the trial court fails to show it committed any torts relevant to Zola's suit in Texas.

         But other terms in the lease that Heniff does not point out are relevant to the trial court's task of deciding whether it could exercise jurisdiction over Heniff to resolve the merits of Zola's claims. First, the lease required Heniff and Mack to comply with federal laws and regulations applicable to motor carriers and truckdrivers. Second, although the lease gave Mack the right to hire drivers, Heniff had the right "to disqualify [drivers Mack hired] from providing" services. Third, while Mack was an independent contractor, the lease gave Heniff the "right to exclusive possession, control and use of [Mack's tractor] for the duration of [the] Agreement." Fourth, the lease gave Heniff the "right to disqualify any vehicle [Mack] used" to perform his obligations. Thus, while the lease describes Mack as an independent contractor, Heniff's rights under the lease allowed it to disqualify Willett from driving Mack's truck. It also allowed Heniff to prevent Mack from using his tractor that day.

         Less than a week before the hearing on Heniff's special appearance, Heniff asked the court to consider more exhibits.[9] The company also filed objections to the affidavit Hayes signed. When the court heard Heniff's special appearance, it overruled Heniff's objections to Hayes' affidavit. After the hearing, the trial court signed an order denying Heniff's special appearance "in all respects." Subsequently, Heniff filed a timely request asking the trial court to provide the parties with written findings supporting its ruling.[10] The trial court, however, never responded to the company's request.

         Heniff's Objections to Hayes' Affidavit

         Standard of Review - Evidentiary Rulings

         For convenience, we address Heniff's fourth issue first. In issue four, Heniff argues the trial court erred by overruling its objections to Pamela Hayes' affidavit. We review rulings admitting evidence over a party's objection under an abuse-of-discretion standard.[11] An abuse of discretion occurs if the trial court acted in an arbitrary or unreasonable manner without reference to the guiding rules or principles that apply to its ruling.[12]


         In its brief, Heniff argues the trial court erred by overruling its objections to Hayes' affidavit because it includes statements that constitute hearsay and contains conclusory, speculative, and vague statements that Hayes asserted without foundation. And Heniff argues the affidavit includes opinions that it claims Hayes was not qualified to express.

         Hayes' affidavit includes the following statements: (1) Hayes dispatched Mack and Willett "on the run involving the crash[;]" (2) Mack and Willett performed the work as instructed; (3) as the assistant manager, Hayes "had the authority to discipline or discharge any driver, if necessary" and take drivers off the road; and (4) Hayes performed her work for Heniff in Jefferson County, Texas. Those statements are neither conclusory, speculative, vague, nor are they opinions offered without foundation.

         Heniff also objected to the statement in Hayes' affidavit that references what she learned about Heniff's investigation into the wreck from Heniff's terminal manager, Justin Talmadge. According to Hayes, Talmadge told her the investigation revealed that Willett "fell asleep." While Heniff argues the statement is inadmissible hearsay and conclusory, we disagree. As Heniff's assistant manager, and the person who dispatched Mack, Hayes held a position with Heniff where she could have learned about the results of Heniff's investigation of the wreck. The source of Hayes' statement, Heniff's terminal manager, is someone the trial court could have found to be a person who would have been informed about the results of Heniff's investigation of the wreck.

         Under the Texas Rules of Evidence, statements made by those employed by the opposing party when still employed are not hearsay when offered against the party for whom the employee worked.[13] Zola offered Talmadge's statement against Heniff, and Talmadge worked for Heniff when he made the statement. Under Rule 801(e)(2)(D), Talmadge's statement was not hearsay because Talmadge's statement is considered a statement of an opposing party that is not included as hearsay under the applicable rule.[14] Because Hayes merely purports to repeat what Talmadge told her, Talmadge's statement as repeated by Hayes is not conclusory.

         Because Heniff's fourth issue lacks ...

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