Compu-Center, Inc. v. Compubill, Inc., COMPU-CENTE

• Decision Date: 29 March 1979
• Docket Number: COMPU-CENTE,INC,No. 17279,17279
• Citation: 580 S.W.2d 88
• Parties: et al., Appellants, v. COMPUBILL, INC., Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 88

580 S.W.2d 88

COMPU-CENTER, INC. et al., Appellants, v. COMPUBILL, INC., Appellee.

No. 17279.

Court of Civil Appeals of Texas, Houston (1st Dist.).

March 29, 1979.

Neal D. Cannon, Jr., Houston, for appellants.

Doherty, Vela, Poser & Collins, Larry J. Doherty, Houston, for appellee.

Before EVANS, WALLACE and WARREN, JJ.

EVANS, Justice.

This is a venue case.

The plaintiff, Compubill, Inc., brought this action against defendants, Compu-Center, Inc., and George W. Jordan, III, in Fort Bend County, Texas, alleging that by virtue of an agreement negotiated by the parties in the county of suit, the defendants were to furnish a computer system and to license plaintiff in its use in Harris, Fort Bend, Wharton and Austin Counties; that in reliance upon the defendants' representation that the system would be delivered not later than the middle of January, 1977, the plaintiff had incurred extensive costs and expenses; and that the acts and omissions on the part of the defendants were false, misleading and deceptive within the meaning of the Texas Deceptive Trade Practices-Consumer Protection Act, § 17.46 Tex.Bus. & Comm. Code Ann. Both of the defendants filed pleas of privilege which, after a non-jury hearing, the trial court overruled. The defendants appeal from the trial court's order denying their pleas of privilege.

In their first point of error, the defendants contend that the trial court erred in overruling their plea of privilege because the plaintiff failed to plead and prove a cause of action under the Texas Deceptive Trade Practices-Consumer Protection Act. It is the plaintiff's position that the trial court properly maintained venue in the county of suit under the applicable provision of the Texas Deceptive Trade Practices Act which provides:

"Section 17.56. Venue

An action brought which alleges a claim to relief under Section 17.50 of this subchapter may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or has done business."

Prior to the amendment of this statute effective May 23, 1977, the quoted provision did not contain the phrase "which alleges a claim to relief". The plaintiff's original petition in the case at bar was filed July 22, 1977, after the effective date of the amendment, and the plaintiff was not required, therefore, to do more than allege a claim for relief under Section 17.50. The defendant's first point of error is overruled.

The defendants' second and third points of error contend that the trial court erred in overruling their pleas of privilege because the evidence did not establish that they resided or had their principal place of business in Fort Bend County, Texas, or that they had done business in that county within the meaning of the venue provision. Under these points the defendants argue that the mere fact of their having negotiated with the plaintiff in Fort Bend County prior to the execution of the contract and of their having customers located in Fort Bend County did not constitute their having "done business" within the meaning of the statute.

The plaintiff's president and chief executive officer, Kenneth R. Simon, testified that he had incorporated Compubill, Inc. for the purpose of going into the computer time sharing business, specializing in medical billings. He met the defendant George W. Jordan, III, a vice-president and executive officer of the defendant Compu-Center, Inc., in August 1976, and as a result of meetings in Fort Bend County, Texas, the parties reached an understanding whereby the defendants were to furnish a computer software system to the plaintiff by the middle of January 1977. According to the plaintiff's testimony, Jordan represented that he was developing a very valuable medical billing system and that if the plaintiff purchased his package, it would receive extensive market support and would serve the defendant's clients in Fort Bend and Harris Counties. Simon further testified that Jordan was, at that time, doing business for doctors in Fort Bend County and that Jordan had represented to him that he was then doing business in that county. On cross-examination, Simon testified that Jordan had represented to him that the defendant, Compu-Center, Inc., was already engaged in business in Fort Bend County and that he had customers in that county. A written contract was subsequently executed by the parties in Harris County on December 4, 1976, Simon signing for Compubill and Jordan signing for Compu-Center. In order to implement the filing system, forms were filled out in the physicians' offices in Fort Bend County and mailed to defendant Compu-Center's offices in Neuces County, where they were processed through computers, and the billings were then mailed directly to the physicians' clients. The defendant Compu-Center then billed the physicians for its services.

Mr....