Frost v. Molina

• Decision Date: 31 January 1980
• Docket Number: No. 1593,1593
• Citation: 595 S.W.2d 184
• Parties: Jack FROST and Noe Ramon, Appellants, v. Benigno L. MOLINA and Carolina R. Molina, Appellees.
• Court: Texas Court of Appeals

Page 184

595 S.W.2d 184

Jack FROST and Noe Ramon, Appellants, v. Benigno L. MOLINA and Carolina R. Molina, Appellees.

No. 1593.

Court of Civil Appeals of Texas, Corpus Christi.

Jan. 31, 1980.

Rehearing Denied March 13, 1980.

William Morrow, Brownsville, for appellants.

George Powell, Texas Rural Legal Aid, Inc., Edinburg, for appellees.

OPINION

BISSETT, Justice.

This appeal concerns the question of venue in a mixed "fraud" and "consumer protection" case. Defendants Jack Frost and Noe Ramon (hereinafter referred to by name) appeal from the trial court's order overruling their respective pleas of privilege to be sued in Cameron County, their county of residence, rather than in Hidalgo County, where the suit was filed. Benigno L. Molina and Carolina R. Molina, Plaintiffs, (hereinafter referred to as the "Molinas"), residents of Hidalgo County, sued Jack Frost, Noe Ramon, Ernie Bennett and Gordy Ohmstead, "doing business as U. S. Builders and Supply" (hereinafter referred to as U. S. Builders) for damages allegedly resulting from fraudulent representations, for violations of the Home Solicitation Transactions Act, ¹ and for violations of the Deceptive Trade Practices Act. ²

Frost and Ramon filed separate pleas of privilege to be sued in Cameron County. The Molinas then timely filed their controverting pleas which urged proper venue in Hidalgo County on the basis of Subdivisions 4 and 14 of Tex.Rev.Civ.Stat.Ann. art. 1995 (1964) and the venue provisions of the Deceptive Trade Practices Act and the Consumer Credit Code.

The Molinas also sued Jefferson Savings and Loan Association, which is domiciled in Hidalgo County, for a declaratory judgment cancelling a lien on their residential homestead, which is located in Hidalgo County. Defendants Jefferson Savings and Loan Association, Bennett, and Ohmstead are not parties to this appeal.

The instant suit arose out of a home improvement contract, entitled "Contract for Labor and Material and Trust Deed," dated September 21, 1977, signed by the Molinas, as "Owner," and by Jack Frost on behalf of U. S. Builders, as "Contractor." The contract provided for the installation of metal siding upon the Molina Home. The Molinas alleged: that the contract was executed and the contract work was performed; that the work was unsatisfactory because it did not stop moisture from collecting in the inside of their house; that the defendants Frost, Ramon, Ohmstead and Bennett, doing business as U. S. Builders, represented to them prior to the execution of the contract that the installation of metal siding on their house by U. S. Builders would solve their moisture problem; that such representations were false; that they relied on such representations to their damage; that the contract price for the work was stated in the contract to be $12,686.40, which was false for the reason that $3,900.00 thereof "was for consumer bills having nothing to do with the house"; that on September 21, 1977, they also signed a loan and disclosure agreement with Jefferson Savings and Loan Association "with the total payments being $12,686.40"; that "throughout the whole transaction the Plaintiffs were led to believe that there would be no lien on their house"; that such representation was false; that they relied on such representation to their detriment; that the contract and the loan and disclosure agreements are "consumer transactions"; that the transaction between them and the defendants Frost, Ramon, Ohmstead and Bennett is a home solicitation transaction, which is "covered by Chapter 13 of Article 5069, Texas Revised Civil Statutes"; that the defendants Frost, Ramon, Ohmstead and Bennett violated Article 5069-13.02(b) and Article 5609-13.03(a)(3) in several particulars; that such violations "constitutes a deceptive trade practice" under Article 17.46 et seq., of the Texas Business Code. They further alleged that the lien created by the contract was void in that it was created on their residential homestead in a manner which is not permitted by law; and that the contract and the lien securing the same was assigned by U. S. Builders to Jefferson Savings and Loan Association. The Molinas prayed for: 1) a declaratory judgment that the lien on their residential homestead be declared null and void; and 2) damages.

The trial court, at the request of Frost and Ramon, made and filed findings of fact and conclusions of law. The relevant findings, insofar as this appeal is concerned, read:

"3. That there is more than one defendant in this case and that one of the Defendants, Jefferson Savings and Loan Association of Texas, is a savings and loan association whose main place of business is in Hidalgo County, Texas. Jefferson Savings and Loan Association's sole place of business is in Hidalgo County, Texas.

4. One of the allegations contained in the Plaintiffs' Petition and being maintained by the Plaintiffs is that there is a defective lien on real estate and homestead owned by the Plaintiffs. The real estate is described as Lot 26, Block 2, Colonia McAllen, Hidalgo County, Texas.

7. Jefferson Savings and Loan Association of Texas is the present lienholder on the real estate owned by the Plaintiffs and located in Hidalgo County, Texas.

8. The lien held by the Defendant Jefferson Savings and Loan Association of Texas arose out of the transaction upon which this lawsuit is based.

9. That the Plaintiffs entered into a contract for home repairs with U. S. Builders and Supply of Hidalgo County, Texas. The contract is signed on behalf of U. S. Builders and Supply by the Defendant Jack Frost.

11. The contract signed by Jack Frost was assigned to the Defendant Jefferson Savings and Loan Association of Texas;

12. The assignment was also signed by the Defendant Jack Frost.

16. The address for the place of business of Jack Frost was at the time of the transaction the same address as the place of business in Hidalgo County, Texas.

17. The Defendant Jack Frost regularly does business in Hidalgo County, Texas."

Findings of fact are not conclusive where the reviewing court has a complete record. Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156 (1950); Trinity River Authority of Texas v. San Jacinto County, 535 S.W.2d 422 (Tex.Civ.App. Beaumont 1976, writ dism'd); Anderson v. Anderson, 503 S.W.2d 124 (Tex.Civ.App. Corpus Christi 1973, no writ). In the case at bar, we have a complete record.

Two points of error have been brought forward by Frost and Ramon. They contend, in the first point, that it was reversible error to overrule their pleas of privilege because they were not proper parties to any cause of action against Jefferson Savings and Loan Association. In the second point, they claim reversible error because the Molinas did not allege or prove a cause of action against Jefferson Savings and Loan Association.

Both points of error relate to the Molinas' assertion at the plea of privilege hearing that venue in Hidalgo County as to Frost and Ramon is proper under Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 4 (1964). The subdivision provides that if two or more defendants to a cause of action reside in different counties, suit may be brought in any county where one of the defendants resides. Plaintiff must satisfy three separate requirements in order to establish venue under the subdivision. Those requirements are discussed in the next succeeding three paragraphs.

First, he must plead and prove that one of the defendants is a resident of the county of suit. Pinney v. Cook, 558 S.W.2d 33 (Tex.Civ.App. Corpus Christi 1977, no writ); First National Bank of Yorktown v. Pickett, 555 S.W.2d 547 (Tex.Civ.App. Corpus Christi 1977, no writ). In the case at bar, it is undisputed that Jefferson Savings and Loan Association is a resident of Hidalgo County, the county of suit.

Second, plaintiff must plead and prove a cause of action against the resident defendant. Houseman v. Mahin, 390 S.W.2d 732 (Tex.Sup.1965); Asch Advertising v. Sony Corporation of America, 569 S.W.2d 619 (Tex.Civ.App. Waco 1978, no writ). Reviewing the pleadings, we conclude that only one cause of action, a suit for declaratory judgment invalidating a lien upon their homestead, was filed against Jefferson Savings and Loan Association by the Molinas. There was neither pleading nor proof that Jefferson Savings and Loan Association is the present lien holder of the lien sought to be cancelled. Although the present action is declaratory in nature, it is essentially a suit to quiet title. See Simon v. Henrichson, 394 S.W.2d 249 (Tex.Civ.App. Corpus Christi 1965, writ ref'd n. r. e.). A suit to quiet title requires the allegation of an adverse claim; Katz v. Rodriguez, 563 S.W.2d 627 (Tex.Civ.App. Corpus Christi 1978, writ ref'd n. r. e.) The Molinas have no right to declaratory relief against Jefferson Savings and Loan Association unless the latter is the lien holder at the time suit was filed and at the time of trial. There is no evidence that Jefferson Savings and Loan Association was the owner of the lien at the time of trial; the fact that it was as assignee of the lien at one time does not necessarily mean that it owned the lien at the time suit was filed or at the time of trial.

Third, plaintiff must allege a joint cause of action against the non-resident and resident defendants, or a cause of action against the non-resident defendant which is so intimately connected with his cause of action against the resident defendant that both defendants are properly joinable to prevent a multiplicity of suits. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936, opinion adopted); Von Scheele v. Kugler-Morris General Contractors, Inc., 532 S.W.2d 375 (Tex.Civ.App. Dallas 1976, writ dism'd w.o.j.). In the case at bar, the Molinas' petition does not allege any joint...