Time Housing Corp. v. Nunez

CANTU, Justice,

dissenting.

I dissent to the venue disposition made by the majority and would reach a contrary result based upon the following.

Plaintiffs’ original petition filed on May 28, 1980, consisted of four paragraphs including prayer for relief. In an oversimplified manner, it alleged:

“Plaintiff’s [sic] Jose Nunez and wife, Irma Nunez, bring this lawsuit against General Electric Credit Corporation and Time Housing Corporation, Defendants, for violation of the Texas Rev.Civ.Stat.Ann. # 5069-6.01, et seq. and Sections 17.46 et seq. of the Texas Bus. & Comm.Code.”

The paragraph which purported to allege a cause of action recites:

On or about August 18, 1977, Plaintiff’s [sic] consummated a retail installment transaction consisting of a credit purchase of a mobile home which was sold by Defendant, Time Housing Corporation, and financed by Defendant, General Electric Credit Corporation. In this transaction, there were numerous violations of Art. 5069 et seq. and Art. 17.46 et seq. for which Plaintiffs [sic] now sue for statutory penalties, actual damages, and attorney’s fees all in excess of the jurisdictional amount of this Court.

On June 30, 1980, defendant Time Housing Corporation (Time) filed its plea of privilege seeking to have the cause transferred to Harris County, its place of residence. Defendant Time also filed its special exception to the plaintiffs’ original petition alleging plaintiffs’ petition failed to give notice of the particular claims relied upon for recovery.

Plaintiffs’ controverting affidavit, filed on July 11, 1980, alleges that their claim for relief arises under the provisions of TEX.BUS. & COM.CODE ANN. §§ 17.46 et seq. (Vernon Supp.1984), that the cause of action arises from deceptive acts and practices of the defendants in Jim Wells County, Texas, and that venue is proper in Jim Wells County under TEX.BUS. & COM. CODE ANN. § 17.56 (Vernon Supp.1984) because the deceptive acts and practices occurred in the county of suit.

Not until October 8, 1982, did plaintiffs file their first amended original petition. This petition, upon which the venue issue was decided, alleges a cause of action for personal injuries arising from defective design and manufacture of the mobile home and seeks recovery under a theory of strict liability specifically naming RESTATEMENT (SECOND) TORTS § 402A (1965).

Alternatively, plaintiffs seek to recover under common law negligence for personal injuries.

The next paragraph seeks punitive damages for gross negligence in causing personal injuries.

Further, pleading in the alternative, plaintiffs alleged in the following paragraph:

Plaintiffs would also show that the defendants, through their statements, advertising and sales literature, represented to Plaintiffs that the mobile home would be free from defects in materials and workmanship and would be safe and comfortable to live in. After moving into and living in the mobile home, Plaintiffs discovered that these representations were false. (Emphasis mine.)

Then follows an allegation that the foregoing transaction is subject to the provisions of the Texas Deceptive Trade Practices Act (DTPA) and a laundry list of selected acts condemned under section 17.-46 as well as the unconscionable cause of action under section 17.50(a)(3).

There is no allegation that any of the acts enumerated occurred in Jim Wells County or that they occurred outside the scope of the representations inducing the purchase of the mobile home.

A final paragraph invokes the penalty provision of section 8.01 of the TEX.REV. CIV.STAT.ANN. art. 5069-2.01 et seq.

Significantly, there is no allegation in any instrument before the court that plaintiffs’ DTPA cause of action involves anything other than misrepresentations about the quality of the mobile home inducing the purchase. The first and sole mention of dissatisfaction regarding the delivery and installation of the mobile home occurred at the venue hearing where plaintiffs were bound to prove that defendant has done business in the county of suit.

The majority opinion unnecessarily attempts to demonstrate that venue was properly invoked under the 1977 or the 1979 version of TEX.BUS. & COM.CODE ANN. § 17.56 (Vernon Supp.1984) and proceeds to point out how plaintiffs have, in any event, satisfied the requirements of either.

Only recently, both members of the majority advocated a position precluding the need to consider but one statute. See ABC Truck Rental & Leasing Co. v. Southern County Mutual Insurance Co., 662 S.W.2d 132, 135 (Tex.App. — San Antonio 1983, no writ) opinion authored by Justice Dial and joined in by Justice Butts.

Under the circumstances, and conceding the opinion to be correctly decided, only the applicability of the 1977 version of section 17.56 is pertinent. See also Gable v. Wood, 622 S.W.2d 884, 885 (Tex.App. — Fort Worth 1981, writ dism’d). Thus, it is immaterial whether plaintiffs proved the lesser burden of showing that the alleged act or practice occurred in the county of suit. See TEX.BUS. & COM.CODE ANN. § 17.-56 (Vernon Supp.1984). Even so, plaintiffs’ burden would have required a showing that the alleged act or practice [as opposed to transaction] occurred in Jim Wells County and not some other act or practice not alleged in the petition.

The 1977 version of section 17.56 mandates a showing that defendant has done business in Jim Wells County in order to sustain venue there.

The majority concludes that plaintiffs have met their burden by showing that they have other complaints about the transaction in question not plead in their petition. They find solace in the fact that plaintiffs’ testimony about an immaterial fact is uncontroverted.

Much ado is also made about the newly voiced complaints made at the hearing on venue for the first time. Although they were not required to prove a cause of action against defendant, plaintiffs were required to allege a cause of action under section 17.50 and to prove the venue fact. Pettit v. England, 583 S.W.2d 875, 876 (Tex.Civ.App. — Dallas 1979, no writ). I can not agree that immaterial testimony, even if uncontroverted, can assume the stature of the necessary proof.

Singular reliance is placed upon the holding in Legal Security Life Insurance Co. v. Trevino, 605 S.W.2d 857 (Tex.1980) for the proposition that delivery and anchoring of a mobile home constitutes part of the transaction of which plaintiffs complained for purposes of establishing the required venue proof.

Legal Security Life Insurance Co. v. Trevino, supra, is a per curiam decision finding no reversible error in the intermediate appellate court’s opinion reported at 594 S.W.2d 481. When read in the context in which it was intended, it is clear that the Supreme Court was approving a holding that a defendant had “done business” in the county of suit where the proof showed that he had at least once solicited business in the county of suit and that the solicitation was accomplished through alleged misrepresentations constituting the basis of the suit plead. The manner of delivery and anchoring of the mobile home is not the basis of the present suit so as to constitute the venue fact necessary to show that defendant has done business in Jim Wells County. It is merely incident to a transaction occurring entirely in Nueces County and an expedient device by which plaintiffs now seek to fulfill their burden of proving that defendants have “done business” in Jim Wells County.

I find little difference between the facts of the instant case and the facts in Carter v. Suniland Furniture Co., 596 S.W.2d 596 (Tex.Civ.App. — Beaumont 1980, no writ), which I believe to be correctly decided. See also Herfort v. Hargrove, 606 S.W.2d 359 (Tex.Civ.App. — Austin 1980, writ ref’d n.r.e.).

The recent case of FDI Investment Corp. and C & W Manhattan Associates v. S.S.G. Investments, 663 S.W.2d 135 (Tex.App. — Fort Worth 1983, no writ) at first blush appears to support the majority’s position. However, a reading of that opinion reveals incorrect interpretation of case law. The opinion credits this Court, in Legal Security Life Insurance Co. v. Trevino, 594 S.W.2d 481 (Tex.Civ.App. — San Antonio 1979), writ refd n.r.e., 605 S.W.2d 857 (Tex.1980), with holding that “one single act of doing¹ business if it was related to the transaction in litigation, was sufficient to prove venue under the 1977 amendment to section 17.56.” (Emphasis mine.) No such language can be found in Trevino. Although the opinion claims that the Supreme Court agreed with the language of the Appeals Court, the short per curiam opinion fails to bear it out as well.

What both courts held, and correctly so, is that a defendant has “done business” where the venue fact proved is the single transaction which is the basis of the suit.² But “basis of the suit” is not and cannot equate with “subject matter of the suit” as the opinion holds.

I believe that “basis of the suit” was meant to equate with “nature of the cause of action” and that a plaintiff must show, in order to prove up the venue fact, one single statutory violation under the DTPA giving rise to a cause of action relied upon in the pleadings.

An act related to the subject matter of the suit covers a multitude of conduct which need not have a thing to do with the basis of the suit or the nature of the cause of action.

If proof of any act related to the subject matter of the suit constitutes proof of the venue fact under section 17.56, then the proof required need have no relevance to the suit as plead nor need it have anything to do with having “done business.”

Of course, as recognized in FDI Investment Corp., supra, proof that a defendant has done business in the county of suit which is not related to the transaction in question, is sufficient to satisfy the venue proof under section 17.56. But no such proof is relied upon nor does it exist in the instant case.

Relatively few cases have addressed the phrase “basis of the suit.” See Howze v. Surety Corp. of America, 564 S.W.2d 834 (Tex.Civ.App. — Austin 1978), rev’d on other grounds, 584 S.W.2d 268 (Tex.1979) (recognizing that the basis for suit in a DTPA case was misrepresentations made in the course of a mobile home purchase); Nattrass v. Rosenthal & Co., 641 S.W.2d 675 (Tex. App. — Fort Worth 1982, writ ref d n.r.e.) (basis of the suit was a broker’s failure to follow the customer’s instructions); see also Naples Builders Supply Co. v. Clutter Construction Corp., 152 So.2d 478 (Fla.Dist.Ct.App.1963) (“nature of the cause” refers to cause of action cognizable under the law).

If the Supreme Court had meant what the Court in FDI Investment Corp. claims it meant, it could have easily said so in Trevino.

I would hold that plaintiffs have failed to establish venue in Jim Wells County under section 17.56 and reverse the judgment of the trial court with instructions to transfer the case to defendant’s county of residence.

1 . The Court in Trevino was concerned with the 1977 version of § 17.56 which required a showing that a defendant "has done business" rather than a showing that he was "doing business” as required under the original enactment. 594 S.W.2d at 483.

2 . In Trevino, the petition alleged various statutory violations including solicitation of an insurance policy through misrepresentations. The venue facts proved showed that the agent for defendant was licensed to solicit for defendant and that it did solicit and promise immediate coverage but failed to issue a policy.