Corporation R, Inc. v. Gary Greene Co., 575

• Court: Texas Civil Court of Appeals
• Writing for the Court: BARRON
• Citation: Corporation R, Inc. v. Gary Greene Co., 476 S.W.2d 921 (Tex. Ct. App. 1972)
• Decision Date: 26 January 1972
• Docket Number: No. 575,575
• Parties: CORPORATION R, INC., Appellant, v. GARY GREENE CO., Appellee. (14th Dist.)

Page 921

476 S.W.2d 921

CORPORATION R, INC., Appellant, v. GARY GREENE CO., Appellee.

No. 575.

Court of Civil Appeals of Texas Houston (14th Dist.).

Jan. 26, 1972.

G. Frank Brown, Brown, Elliott, Vetter & Denton, Dallas, for appellant.

Jerry L. Bryan, II, Houston, for appellee.

BARRON, Justice.

This is a plea of privilege case. Plaintiff, Gary Greene Co. of Harris County, Texas, filed suit in the District Court of Harris County alleging that defendant, Corporation R, a private corporation with its principal place of business at Dallas, Texas, wrongfully breached and without just cause terminated a written contract between the parties, and that such termination and breach occurred on or about Maych 17, 1971. The proof shows that the written contract, dated January 2, 1971, and executed by both parties, provided that plaintiff become the exclusive agent for defendant with the right to sell all or portions of a subdivided tract of land situated in Harris County, Texas and fully described by an exhibit attached to said petition and in evidence. Corporation R was seeking as owner to develop said tract of land as a mobile or modular home park under the name of Redwood Estates. The contract provided that the builder agreed to pay the agent 3 1/2% Of the selling price of each home as compensation in the event of a sale or an exchange of said property by the agent or any other person; to make available a model home for the purpose of creating sales, and until such time as a model home was available, the builder agreed to provide a suitable On-site sales office. The contract provided for other mutual obligations not necessary to mention here. The contract in writing in part specifically provided:

'For and in consideration of the services of Gary Greene Co. Realtors, Inc., hereinafter called AGENTS, Corporation R, Inc., hereinafter called BUILDER, does employ said Agents as its exclusive Agents with exclusive right to sell all that certain real property situated in the William Hedge Survey, County of Harris, State of Texas and described as follows: As described in Title Guarantee Company Policy # TXO 2--22178 validated December 10, 1969. (See Exhibit 'B'.)

'This employment and authority shall be effective upon execution and shall continue for a period of one hundred and eighty (180) days from January 2, 1971.'

Plaintiff's suit sought damages for failure of defendant to recognize and authorize plaintiff to act as the exclusive agent of defendant under the terms of the contract for the sale of land in Harris County, and to pay plaintiff a commission for the sale of certain property. Plaintiff further sought damages for the eventual or anticipated sale of various subdivided properties situated in Harris County; for breach of defendant's alleged agreement to name plaintiff in all advertising and publicity releases; and for breach of defendant's agreement not to employ directly or indirectly any member of plaintiff's sales staff working in Redwood Estates in Houston for a period of 24 months.

Defendant-appellant contends that this cause should be transferred to Dallas County, Texas, its domicile, because plaintiff did not prove venue in Harris County under subdivision 5 of art. 1995, Vernon's Ann.Civ.St. We do not pass upon the applicability of subdivision 5, but we decide this case upon the applicability of subdivision 23, art. 1995, Vernon's Ann.Civ.St. Although good practice would indicate that plaintiff should have done so, it is not necessary that plaintiff plead specifically in its controverting plea the particular subdivision applicable to this situation. Rule 86, Texas Rules of Civil Procedure; Maddox v. Schwartz, 439 S.W.2d 369 (Tex.Civ.App.--Houston (1st Dist.) 1969, no writ); Flugrath v. Brickstone Products Corp., 411 S.W.2d 426 (Tex.Civ.App.--Austin 1967, no writ). The applicability of subdivision 23 has been properly brought forward and briefed.

Venue is proper in the county of suit under subdivision 23 if such is the county in which defendant-appellant's principal office is situated, Or in the county in which the cause of action or part thereof arose, or in the county in which plaintiff resided at the time the cause of action or part thereof arose, provided that defendant has an agent or representative therein. From the evidence presented plaintiff has controverted under the second alternative above. This requires plaintiff to allege and prove by a preponderance of the evidence that defendant-appellant is a corporation; that plaintiff-appellee has a cause of action against defendant; and that such cause of action or part thereof arose in Harris County where suit was filed. Grayson Enterp., Inc. v. Texas Key Broadcasters, Inc., 390 S.W.2d 346 (Tex.Civ.App.--Eastland 1965, writ dism'd).

It was not necessary that plaintiff specifically prove that defendant was a corporation since this fact had not been denied pursuant to Rule 93, Tex.R.Civ.P.; Ladner v. Reliance Corp., 156 Tex . 158, 293 S.W.2d 758 (1956); Pitt Grill, Inc. v. Albert, 432 S.W.2d 160,...