Dealer Service Plan, Inc. v. Chabarria, 6548

• Decision Date: 10 November 1976
• Docket Number: No. 6548,6548
• Citation: 543 S.W.2d 740
• Parties: DEALER SERVICE PLAN, INC., Appellant, v. Benny R. CHABARRIA, Appellee.
• Court: Texas Court of Appeals

Page 740

543 S.W.2d 740

DEALER SERVICE PLAN, INC., Appellant, v. Benny R. CHABARRIA, Appellee.

No. 6548.

Court of Civil Appeals of Texas El Paso.

Nov. 10, 1976.

Oster & Kaufman, Stanley M. Kaufman, Aaron S. Kaufman, Herbert Garon, Jr., Dallas, for appellant.

Nisbet & Thompson, Robert S. Thompson, San Antonio, McMahon, Cox, Todd, Tidwell & Locke, Jack Q. Tidwell, Shafer, Gilliland, Davis, Bunton & McCollum, Inc., Stephen L. Brannan, Odessa, for appellee.

OPINION

OSBORN, Justice.

This is a venue case. The trial Court overruled the Appellant's plea of privilege. We affirm.

The Appellee filed suit in the District Court of Ector County, seeking to recover damages and attorney's fees under the consumer credit provisions of the Texas Statutes. In particular, recovery is sought under Article 5069--6.01, et seq., 5069--7.01, et Seq., and 5069--8.01, et seq., Tex.Rev.Civ.Stat.Ann. The suit alleged that in 1973, the Appellee purchased a mobile home on credit in Ector County . The suit named as Defendants the seller, a bank as financer, and the Appellant herein as financer-broker.

The Appellant filed a plea of privilege in which it alleged that it was a foreign corporation incorporated under the laws of the State of Florida, and having its principal place of business in Tampa, Florida, and that its registered agent for service was the C.T. Corporation System in Dallas, Texas. The plea then states:

'Defendant is asserting venue herein under and by virtue of the provisions of Subdivision (27) of Article 1995, V.A.T.S., and by doing so is asserting his privilege to have venue of this suit transferred to Dallas County, the place where such company has an agency or representative.'

The Appellee filed a controverting plea asserting venue in Ector County under the provisions of Subdivision 27 of Article 1995, Tex.Rev.Civ.Stat.Ann., and later filed an amended controverting plea asserting venue under both Subdivision 4 and Subdivision 27 of Article 1995, Tex.Rev.Civ.Stat.Ann.

The Texas venue statute, Article 1995, Tex.Rev.Civ.Stat.Ann., initially provides that '(n)o person who is an inhabitant of this State shall be sued out of the county in which he has his domicile * * *.' Then follow certain exceptions under which a plaintiff may sue a defendant in a county other than that of the defendant's domicile. Domicile, as used in the venue statute, is generally construed as synonymous with residence. Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136 (1951).

In our case, there is no statement in the plea of privilege as to where the Defendant has its residence in Texas, but only a statement that it has an agency or representative in Dallas County. That is not sufficient. In Aviation Credit Corporation of New York v. University Aerial Service Corporation, 59 S.W.2d 870 (Tex.Civ.App.--Eastland 1933, writ dism'd), the Court considered a somewhat similar pleading in the case of a foreign corporation, and said:

'* * * It alleged therein that it was domiciled in, and a resident of, New York State. Nowhere did it allege that it also had a domicile in, or was a resident of, the state of Texas. Venue was sought to be transferred to Bexar county on an allegation that appellant had an agent in that county in the person of James B. Stafford. Article 1995, R.S.1925, provides: 'No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases. * * *' Follow then certain exceptions not necessary here to mention. Article 2007, R.S .1925, provides: 'A plea of privilege to be sued in the county of one's residence shall be sufficient if * * * shall state the county of his residence at the time of such plea.' These statutes, by their express terms, are available only to inhabitants of this state, and the only county to which a cause could be transferred upon a plea of privilege is the county in this state of defendant's residence or domicile. There is no statutory authority for transferring a cause by plea of privilege to the county where the defendant was an agent merely, but the whole legislation has to do with the right of a defendant to be sued in the county in which he has his domicile and to protect that right by having cases transferred to that county. This does not at all mean that a foreign corporation could not avail itself of the benefits of these statutes, provided it had established its domicile in this state. For the purpose of venue a party may have more than one residence or domicile, and, notwithstanding the appellant had its domicile in the state of New York, it might have also had one in Texas, but the plea of privilege wholly failed to allege any domicile in Texas, and that omission rendered it fatally defective. * * *'

The Appellant in this case seems to have lost sight of the fact that the Subdivisions under Article 1995 are for the use of plaintiff in maintaining venue outside of the county in which the defendant has its residence, and such Subdivisions are not for the use of a defendant in seeking to have the case moved from the county in which suit was filed by the plaintiff. The one exception is a Subdivision which has a mandatory provision that suit 'must' be brought in a particular county, such as Subdivisions 14 and 18. The rule is stated in 1 McDonald, Texas Civil...