Grozier v. L-B Sprinkler & Plumbing Repair

• Decision Date: 14 January 1988
• Docket Number: L-B,No. 2-86-267-CV,2-86-267-CV
• Citation: 744 S.W.2d 306
• Parties: Cecil GROZIER, Appellant, v.SPRINKLER & PLUMBING REPAIR, Appellee.
• Court: Texas Court of Appeals

Page 306

744 S.W.2d 306

Cecil GROZIER, Appellant, v. L-B SPRINKLER & PLUMBING REPAIR, Appellee.

No. 2-86-267-CV.

Court of Appeals of Texas Fort Worth.

Jan. 14, 1988.

Rehearing Denied Feb. 11, 1988.

Alley & Alley and Richard Alley, Fort Worth, for appellant.

Ball, Landrith, Kulesz & Hubble and Russell B. Shelton, Arlington, for appellee.

Before FENDER, C.J., and JOE SPURLOCK, II and FARRIS, JJ.

OPINION ON REHEARING

JOE SPURLOCK, II, Justice.

Our opinion of November 25, 1987 is withdrawn and this opinion substituted. The judgment is unchanged.

Appellee, L-B Sprinkler & Plumbing Repair (L-B Sprinkler) sued Cecil Grozier, appellant, for damages in a suit on a sworn account. L-B Sprinkler moved for summary judgment, Grozier did not respond to the motion. Judgment was granted for L-B Sprinkler. Grozier filed a motion for new trial which was overruled. Grozier appeals complaining that the trial court erred in failing to hear a motion to transfer venue before granting the summary judgment and that there remains a genuine question of material fact about venue. We find no error.

We affirm.

After being served with notice of the lawsuit, Grozier, by his attorney, filed a motion for transfer of venue of the cause of action from Tarrant County to his home county of Hood and filed his original answer subject to the motion. The motion to transfer venue was set for hearing on July 29, 1986. His attorney appeared, but, instead of presenting evidence on the venue motion, he presented a motion to withdraw as counsel of record. The court granted the motion to withdraw. The venue motion was not heard then nor was it ever reset on the court's docket.

On the 10th of July, before the date set for the hearing on the venue motion, L-B Sprinkler filed a request for admissions and interrogatories directed to Grozier through his attorney. Grozier never made a response to the request for admissions or interrogatories, nor did he ever make any response to L-B Sprinkler's motion for summary judgment which was filed on August 13, 1986. Only L-B Sprinkler appeared at the 17th of September hearing set to consider its motion for summary judgment. Neither Grozier nor any attorney for him appeared. The court granted the motion for summary judgment for L-B Sprinkler in the amount of $4,900 plus interest, cost, and attorney's fees. Appellant filed a motion for new trial which was set for hearing and denied by the court.

In his first point of error Grozier argues that as his motion for transfer of venue was properly made under TEX.R.CIV.P. 86, the matter should have been promptly heard. TEX.R.CIV.P. 87. Grozier argues that once the motion was presented to the court and a hearing requested, the court had a duty to consider the motion before the court considered any other matter in the case in chief. Specifically Grozier argues that the filing of the motion to transfer venue divested the trial court of authority to render a final judgment until that motion was determined. See Wheeler v. Keels, 584 S.W.2d 574 (Tex.Civ.App.--Beaumont 1979, no writ).

He further argues that where the motion to transfer is filed, unless the adversely affected party controverts the same, a prima facie showing is made and no issue being joined the motion should be granted. See Manges v. Mustang Oil Co., Inc., 628 S.W.2d 503 (Tex.App.--Corpus Christi 1982, no writ). Appellee filed neither an answer nor any response to the motion for change of venue. As appellee failed to controvert the motion, Grozier argues that venue properly belongs in Hood County, Texas. As the court made no venue ruling, Grozier concludes that the fact issue of venue was incorrectly subsumed in granting the summary judgment, and the judgment granted was improper.

We have considered the cases cited by Grozier and the authority contained therein and agree that, under the proper circumstances, they are good law. As a general proposition, it is true that an uncontested motion to change venue should be granted at a hearing to test the truth of the motion, if the evidence supports the motion to change venue. However, the question in the case on appeal is what effect should be given a judgment when no hearing is held by the court, nor ruling otherwise made upon an uncontested motion for change of venue.

We begin our analysis of the issue, that summary judgment was granted without a ruling by the court on the venue question, under the new rule 87 of the Texas Rules of Civil Procedure. We believe the latest (1986) change in the rule was intended to clarify the issue of the jurisdiction of the trial court to try cases in which unresolved venue motions are pending. It is apparent that the change in rule 87 was to clarify the procedural steps to take to resolve venue questions. The previous limitations upon the court's authority pending a ruling on venue was as held by the Texas Commission of Appeals, in the matter of Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.2d 978 (1932):

It is not to be doubted that, upon the filing of the plea of privilege in conformity to the statute, the court, until such plea is properly disposed of, is without jurisdiction to enter a judgment in the main suit against the defendant.

Id. 48 S.W.2d at 981. The effect of the rule stated in Wells is specifically that the filing of the plea divest the trial court of jurisdiction, pending disposal of the plea, to enter judgment in the main suit against the defendant. The Court in Wells noted that the precise question of divestiture of jurisdiction to enter judgment was specifically decided in the cases of Craig v. Pittman & Harrison Co., 250 S.W. 667 (Tex.Comm'n App.1923, judgment adopted) and Galbraith v. Bishop, 287 S.W. 1087 (Tex.Comm'n App.1926, holding approved). Id.

In more recent times, Justice Frank Evans, writing for the 1st Court of Appeals in Houston, reaffirmed the results of the holding in Wells with this statement: "since the trial court did not properly dispose of the defendant's plea of privilege at a hearing of the venue matter, it was without authority to enter a judgment against the defendant in the main suit." Rosenthal v. Short, 582 S.W.2d 214, 215 (Tex.Civ.App.--Houston [1st Dist.] 1979, writ dism'd). We note however, that the premise upon which Justice Evans wrote in the Rosenthal case, and specifically the premise upon which the matter was decided in the Texas-Louisiana case was as stated by Justice Evans in the Rosenthal case:

It was the plaintiff's responsibility to see that the venue matter was resolved before a trial on the merits, and the defendant's failure to appear in response to the trial setting did not constitute a waiver of his position with respect to the venue issue. [Citation omitted.] [Emphasis added.]

Id. at 215. This rule specifies the procedural steps to be taken under rule 87 pre-1986 amendments. The plaintiff below in our case was L-B Sprinkler, the appellant was the defendant. In point of error one, Grozier argues that Sprinkler failed to obtain a ruling, and that the court had no authority under Wells to try the case to judgment.

Since the decision in Rosenthal in 1979, the Texas Supreme Court has promulgated a change to rule 87 of the Rules of Civil Procedure. Rule 87 now provides new language in the second sentence of section 1: "[t]he movant has the duty to request a setting on the motion to transfer." The record in this case shows that the movant did request a hearing on the motion to transfer. However, at that time, instead of insisting upon a ruling on the motion, counsel for the appellant requested to be relieved as attorney of record. The request was granted. Thereafter, neither appellant nor any attorney acting for him complied with the provisions of amended rule 87 to request a setting on his motion to transfer. Appellee argues Grozier waived his venue claim. The question for us to decide is if, in the absence of affirmative action to get a ruling on his motion, appellant waived his claim for change of venue.

The law in Texas has long been that any party to a lawsuit may expressly or impliedly waive rights conferred upon him by a venue statute. The matter of venue is a personal privilege which may be waived. See Mooney Aircraft, Inc. v Adams, 377 S.W.2d 123, 125 (Tex.Civ.App.--Dallas 1964, no writ), and the cases cited therein at page 125, together with the learned treatise which the Dallas court considered in Mooney. The court further noted at page 125, that the accomplishment of a waiver of the venue privilege may be either expressed or implied. The court held that an express waiver is shown by clear overt acts evidencing an intent to waive, and an implied waiver occurs when a party, often inadvertently, takes some action inconsistent with his position upon the venue issue and therefore is held to have waived his rights thereon. Id., at 125-26. In considering the circumstances involved in a great number of venue cases, the court concluded, "[i]t has been conclusively established that the inconsistent action resulting in waiver is one which invokes the general jurisdiction of the court without reservation of rights asserted by the filing of the plea of privilege." Id. at 126. The court cited a number of cases which have held that when a party does not first seek a ruling on its plea of privilege, its benefits may be waived by submitting for the courts determination matters on: a plea in abatement; pleading a cross-action in which affirmative relief was sought; asking for and obtaining a continuance; invoking a rule for cost; or invoking the judgment of the court on action not incident to or pertaining to the privilege, and otherwise submitting to the jurisdiction of the court. Id.

In the case on appeal, we observe that the court noted on the docket sheet at the hearing on the venue motion, that the attorney for Grozier appeared and his request to withdraw was granted. Grozier thereafter made no answer to the interrogatories or the request for...