Harshberger v. Reliable-Aire, Inc.

• Decision Date: 23 July 1981
• Docket Number: RELIABLE-AIR,INC,No. 1903,1903
• Citation: 619 S.W.2d 478
• Parties: 1981-2 Trade Cases P 64,242 Ray HARSHBERGER and Ray's Mobile Home Service, Inc., Appellants, v., Appellee.
• Court: Texas Court of Appeals

Page 478

619 S.W.2d 478

1981-2 Trade Cases P 64,242

Ray HARSHBERGER and Ray's Mobile Home Service, Inc., Appellants, v. RELIABLE-AIRE, INC., Appellee.

No. 1903.

Court of Civil Appeals of Texas, Corpus Christi.

July 23, 1981.

Rehearing Denied Aug. 6, 1981.

John A. Sixta, Jr., Corpus Christi, for appellants.

Charles A. Carlson, III, Mike Ezell, Harlingen, for appellee.

OPINION

BISSETT, Justice.

This is a venue case. Ray Harshberger and Ray's Mobile Home Service, Inc., defendants in the trial court, have duly and timely appealed from an order of the District Court of Cameron County, Texas, sitting without a jury, which overruled their plea of privilege to be sued in Nueces County, Texas, where they resided. Reliable-Aire, Inc., plaintiff in the trial court, controverted the plea of privilege and asserted that venue was properly maintainable in Cameron County, Texas under the provisions of Tex.Rev.Civ.Stat.Ann., Article 1995, Subdivision 23. The parties will be referred to by name or as "plaintiff" and "defendants" as they were in the trial court.

Plaintiff, in its suit against the defendants, alleged that the latter tortiously interfered with the business relations of plaintiff and conspired with others to restrain trade in violation of the anti-trust laws of Texas contained in Section 15.03(a) of the Texas Business and Commerce Code. As a result, plaintiff seeks a permanent injunction enjoining defendants from interfering with plaintiff's business relations and, in addition, any damages, actual and exemplary, to which it is entitled.

No statement of facts is present in the record of this case. Only the transcript is before this Court. It contains the pleadings, and findings of fact and conclusions of law.

It is an exceptional case in which one appealing is entitled to a reversal of the trial court's judgment in the absence of a statement of facts. Houston Fire & Casualty Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600, 603 (1953). If the contention is made that the findings of fact do not sustain the judgment rendered by the court, in the absence of a statement of facts, the appellate court's consideration is limited to the facts actually found by the trial court. Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943 (1958). It is our duty to affirm the judgment unless the pleadings, stipulations and findings of the trial court do not support the judgment. Gomez v. Gomez, 577 S.W.2d 327, 331 (Tex.Civ.App. Corpus Christi 1979, no writ); Phillips v. American General Insurance Co., 376 S.W.2d 808, 810 (Tex.Civ.App. Amarillo 1964, no writ); Dorman v. Cook, 262 S.W.2d 744, 748 (Tex.Civ.App. Beaumont 1953, writ dism'd).

The findings of fact filed by the trial court show the following applicable facts 1) Plaintiff Reliable-Aire, Inc., is in the business of sales and servicing of air conditioning and heating units for single family dwellings and mobile homes; 2) Jim Ginther and George Nicholas are the owner and sales manager, respectively, of Reliable-Aire; 3) In April of 1980, Nicholas talked with several mobile home dealers in the Corpus Christi area to determine whether there was a market for mobile home air conditioners which Reliable-Aire might service; 4) Nicholas specifically talked with Dave Lewandos, owner of Gulfgate Mobile Home Service, in Corpus Christi and obtained an order for a four ton air conditioner unit; 5) Shortly thereafter, Reliable-Aire set up an office in the Corpus Christi area; 6) In October of 1980, defendant Ray Harshberger placed a telephone call to Ginther and Nicholas in Harlingen, Texas (Cameron County) complaining that Reliable-Aire was "creating a lot of havoc and aggravation and that it should pull out of the Corpus Christi market;" 7) Harshberger also "indicated that if Reliable-Aire, Inc., did not pull out of the Corpus Christi market," he would file a lawsuit against them alleging anti-trust violations; 8) Before the phone call was made, Harshberger had been told by Dave Lewandos that Gulfgate Mobile Home Service was going to do business with Reliable-Aire; 9) Harshberger's reply to Lewandos was that if he gave business to Reliable-Aire, Ray's Mobile Home Service would not continue to do warranty work for Gulfgate Mobile Home Service and the price of Harshberger's air conditioning units to Gulfgate would increase; 10) Since the threats and actions of Harshberger, Reliable-Aire has lost the business of Gulfgate Mobile Home Service and has been unable to penetrate this Corpus Christi market.

The trial court concluded that Harshberger's actions amounted to an interference with the business relations of Reliable-Aire and violated the Texas Business and Commerce Code, Section 15.03 in conspiring and attempting to restrain trade and monopolize the Corpus Christi mobile home air conditioning market. Furthermore, the trial court concluded that a portion of both causes of action took place in Cameron County due to the phone call made by Harshberger from Nueces County to Cameron County in which he talked to Ginther and Nicholas.

Two points of error have been brought forward by defendants. The first point states "The trial court erred in finding that a part of either of the causes of action alleged by the Plaintiff occurred in Cameron County." In essence, this point raises a question of law as to whether the telephone conversation placed by Harshberger to Cameron County constituted a part of either of the causes of action alleged. Since it is a question of law, this point is properly before this Court even without a statement of facts. Appellate Procedure in Texas, Section 12.3(1) (2nd Ed. 1979).

Venue can be sustained in the county where the case is filed when it is pleaded and proved that the plaintiff's cause of action or a part thereof arose in that county. Article 1995, Subdivision 23, Tex.Rev.Civ.Stat.Ann. A "cause of action" consists of the factual propositions which establish (a) plaintiff's "primary right," i. e. the defendant's duty, also often called the "genesis of the right," and (b) the defendant's action or omission which violates such right. Stone Fort Nat'l. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674 (1936). Plaintiff's alleged causes of action in the court below consisted of an interference with plaintiff's business relations, a common law tort, and a violation of Section 15.03(a) of the Texas Business and Commerce Code for conspiring not to buy or sell from or to another person tangible personal property, a statutory tort action. With respect to the requirement that plaintiff show that a part of the cause of action arose in the county of suit, it is only necessary that plaintiff "... show that part of the transaction creating the right or part of the transaction relating to the breach, ..." occurred in the county of suit. Stone Fort Nat'l. Bank of Nacogdoches v. Forbess, supra, 91 S.W.2d at 676. American Quarter Horse Association v. Rose, 525 S.W.2d 227 (Tex.Civ.App. Ft. Worth 1975, no writ); Crown Sash & Door, Inc. v. Steves Sash &amp Door Co., 511 S.W.2d 603 (Tex.Civ.App. San Antonio 1974, no writ).

The common law tort of malicious interference with business relationships of others has long been recognized in Texas. Delz v. Winfree, 80 Tex. 400, 16 S.W. 111, 112 (1891). This tort may exist even if no contract is yet in existence. The general rules applicable to this tort are set out in Davis v. Lewis, 487 S.W.2d 411, 414 (Tex.Civ.App. Amarillo 1972, no writ), as follows:

"On this appeal the issue is not an interference with contractual rights, but rather an interference with a business relationship. The parties are agreed that one has a general duty not to interfere with another's business relations unless the interference is privileged under the circumstances. Although the legal prescript has been stated in multiform legalism, it long has been established in Texas that interference with a third party is actionable if the interference is motivated by malice and no useful purpose of the inducing party is subserved." (citations omitted).

It...