Groce v. Gulf Oil Corp.

Decision Date28 March 1969
Docket NumberNo. 17254,17254
Citation439 S.W.2d 718
PartiesH. T. GROCE, Appellant, v. GULF OIL CORPORATION, Appellee. . Dallas
CourtTexas Court of Appeals

Howard V. Tygrett, Jr., and James Clement, Irving, for appellant.

William F. Erwin, Jr., Houston, for appellee.

DIXON, Chief Justice.

Appellant H. T. Groce filed suit in Dallas County against appellee Gulf Oil Corporation. The latter filed a plea of privilege asking that the cause be transferred to Harris County, its place of residence. Appellant filed a controverting plea seeking to retain venue in Dallas County under Art. 1995, Subdivisions 5 and 23, Vernon's Ann.Civ.St. The trial court sustained appellee's plea of privilege.

In his original petition appellant alleges that (1) for approximately two years he operated a service station in Irving, Texas in Dallas County; (2) in reliance on representations made by appellee he expended $8,000 on personal property, which he was required to buy from appellee; (3) W. C. Crouch, appellee's District Sales Manager, began making unreasonable demands on him and threatened to terminate his lease; (4) Crouch coerced him into executing an ambiguous Service Station Lease Agreement dated March 20, 1968 for a period of four months; (5) Crouch coerced him into leaving the premises, so that it became necessary for him to move the property which he had purchased from appellee at a cost of $8,000 and which he cannot use or sell at any reasonable market value; and (6) appellee's requiring him to expend $8,000 for personal property to obtain a lease violates the anti-trust laws of the State of Texas. Appellant prayed for $8,000 actual damages and $5,000 exemplary damages.

In his first point on appeal appellant contends that the suit comes within the provisions of Subdivision No. 5 1 of the venue statute because he 'showed the cause to be based on a contract in writing to perform an obligation in Dallas County.' We do not agree .

Appellant is correct when he says that a plaintiff seeking to invoke the provisions of Subdivision 5 does not have to prove that a cause of action exists. Petroleum Producers Co. v. Steffens, 139 Tex. 257, 162 S.W.2d 698, 699 (1942); Whitworth v. Mangels, 347 S.W.2d 844 (Tex.Civ.App., Waco 1961, writ dism'd). However such a plaintiff does have to show that the obligation sought to be enforced is made performable in the county of suit by the terms of the contract itself. Moreover the determining factor is not whether the contract requires the plaintiff to perform in the county of suit, but whether the contract requires the defendant to so perform. Rogers et al. v. Waters, 262 S.W.2d 521 (Tex.Civ.App., San Antonio 1953, no writ).

In his controverting affidavit appellant says: 'Plaintiff's Original Petition sets out fully his cause of action * * *.' Yet in said affidavit appellant attempts to introduce a new plea not included in his original petition: he says that his cause of action is one for breach by appellee of the written contract. We cannot consider this new plea. The allegations in a controverting affidavit cannot supply the necessary venue facts which are not alleged in the petition. A. H. Belo Corporation v. Blanton, 133 Tex . 391, 129 S.W.2d 619 (1939); Douglass v. Flintkote Co., 207 S.W.2d 635 (Tex.Civ.App., Dallas 1947, no writ); Price v. Murrell R. Tripp & Co Inc., 268 S.W.2d 702 (Tex.Civ.App., El Paso 1954, no writ); Texas Planting Seed Association v. Hooker, 386 S.W.2d 348 (Tex.Civ.App., Corpus Christi 1964, no writ).

We have carefully examined appellant's petition and we find no allegations which would support a holding that this is a suit upon a written contract whereby appellee expressly undertakes to perform its obligation in Dallas County.

We have also examined the contract itself. It is not ambiguous. We find nothing in it which requires appellee to perform its obligation in Dallas County. See Formers' Seed & Gin Co. v. Brooks, 125 Tex. 234, 81 S.W.2d 675, 678 (1935). It is silent as to the place of payment of the rent, and as to other matters. Rorschach v. Pitts, 151 Tex. 215, 248 S.W.2d 120 (1952). In fact paragraph 8 2 of the contract, relied on by appellant, is negative in nature--it denies to appellee the right to direct or control any of the operations or activities of the service station. Certainly paragraph 8 cannot be understood to require appellee to perform anything in Dallas County within the purview of Subdivision 5. We overrule appellant's first point.

In his second point of error appellant says, with reference to Subdivision 23, that he showed a cause of action which arose in Dallas County, thus complied with the requirements to retain venue in Dallas County under the above subdivision. Again we do not agree .

Subdivision 23, unlike Subdivision 5, does require that a plaintiff seeking to invoke its provisions must not only allege a cause of action but must prove by a preponderance of the evidence that a cause of action exists. Lloyds Casualty Insurer v. McCrary, 149 Tex. 172, 229 S.W.2d 605 (1950); General Motors Corporation v. Ewing, 300 S.W.2d 714 (Tex.Civ.App., Waco 1957, no writ); Texas Bank & Trust Co. of Dallas v. Custom Leasing, Inc., 402 S.W.2d 926 (Tex.Civ.App., Amarillo 1966, no writ).

Appellee has failed to meet the latter of the two above requirements. There is no evidence that appellee's agent threatened to terminate appellant's lease thereby coercing appellant into signing an ambiguous lease on March 20, 1968. The facts as admitted by Groce are that (1) the previous existing lease under which Groce had operated the station expired approximately March 19, 1968; (2) Groce then executed the four month's lease of March 20, 1968, which expired by its own terms on June 19, 1968; (3) Groce was thereafter allowed ten days to vacate the premises and he signed a letter agreeing to vacate within that time; (4) subsequently he was allowed an additional week, or until July 7, 1968 to vacate the premises; (5) Groce took over the operation of a Texaco service station on July 5, 1968 and on the same date voluntarily gave the keys to the Gulf service station to the new...

To continue reading

Request your trial
6 cases
  • Lord v. Insurance Co. of North America
    • United States
    • Texas Court of Appeals
    • June 27, 1974
    ...a clear showing that the court abused its discretion. Vermillion v. Haynes, 147 Tex. 359, 365, 215 S.W.2d 605, 609 (1948); Groce v. Gulf Oil Corp., 439 S.W.2d 718 (Tex.Civ.App.--Dallas 1969, no writ); Lone Star Steel Co. v. Owens, 302 S.W.2d 213 (Tex.Civ.App.--Texarkana 1957, writ ref'd n.r......
  • Paris Mill. Co. v. Wooldridge
    • United States
    • Texas Court of Appeals
    • October 26, 1971
    ...and such a provision could not be properly construed to require any performance by appellant in Wilbarger County. Groce v. Gulf Oil Corporation, 439 S.W.2d 718, 720 (Tex.Civ.App.--Dallas 1969, no writ). We hold, therefore, that appellee cannot maintain venue in this case under Subdivision A......
  • Mobil Oil Corp. v. Cook
    • United States
    • Texas Court of Appeals
    • April 23, 1973
    ...of action against Mobil. Stonewall Insurance Company v. Donald, 475 S.W.2d 876 (Tex.Civ.App.--Fort Worth 1972, writ dism'd); Groce v. Gulf Oil Corp., 439 S.W.2d 718 (Tex.Civ.App.--Dallas 1969, no writ). It is our opinion that the evidence does not eatablish a cause of action against any of ......
  • Jeter-Millar Co. v. Kasch Bros., Inc.
    • United States
    • Texas Court of Appeals
    • April 9, 1971
    ...to perform such obligation in the county of suit, but whether the contract requires the defendant to so perform. Groce v. Gulf Oil Corporation, 439 S.W .2d 718 (Tex.Civ.App.1969, no writ history); LeFors v. Finkner, 448 S.W.2d 574 (Tex.Civ.App.1969, no writ history); McDonald, Texas Civil P......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT