Harwood v. Hunt

• Decision Date: 11 November 1971
• Docket Number: No. 7281,7281
• Citation: 473 S.W.2d 287
• Parties: Stephen HARWOOD et al., Appellants, v. James R. HUNT, Appellee.
• Court: Texas Court of Appeals

Page 287

473 S.W.2d 287

Stephen HARWOOD et al., Appellants, v. James R. HUNT, Appellee.

No. 7281.

Court of Civil Appeals of Texas Beaumont.

Nov. 11, 1971.

Cox, Evans, Pakenham & Roady, Houston, for appellants.

Tillman, Pribilski & Hunt, Houston, for appellee.

KEITH, Justice.

Defendant appeals from an order overruling his plea of privilege to be sued in Fort Bend County and we will refer to the parties as they appeared in the trial court. Plaintiff is a lawyer maintaining his office in Harris County. On May 31, 1967, defendant signed a letter addressed to plaintiff, the material portions of which read as follows:

Re: Trinity River Authority of Texas vs. Robert S. Parks, et al Condemnation Proceedings--San Jacinto County, Texas Tract: C--9

'We, the undersigned, hereby fully authorize you to represent our interest with regards to the above captioned cause upon the following basis:

'Contingent fee of Forty per cent (40%) of any excess over the total sum of $57,754.00 and any and all appraisal fees required in connection therewith shall be allocated fifty per cent (50%) to you and Fifty per cent (50%) to the undersigned.'

Plaintiff testified that after being retained by defendant and the other owners, he entered the condemnation case and eventually procured the entry of a compromise judgment therein whereby the landowners had 'lifted from condemnation proceedings' some sixty-five acres of land which had been included in the original taking. He also recovered $2,354.00 in money, and received his proportionate part thereof. This lawsuit involves the remainder, if any, of the fee to which plaintiff is entitled for his services. According to plaintiff's testimony, 'Mr. Harwood (our defendant) and his relatives owned an undivided half interest in it (the sixty-five acres) and Robert Parks and his brother owned the balance one-half interest.'

On January 21, 1971, plaintiff filed his first amended original petition in the District Court of San Jacinto County. ¹ The only defendants named in the trial pleading of plaintiff were Stephen Harwood (our appellant), Mrs. Robert L. Wilson, Mrs. Scott A. McGall, and Bob G. Lewis, Trustee under the Will of Binz J. Settegast, all of whom were nonresidents of the county of suit. Only Harwood filed a plea of privilege. Because of the involved nature of the pleading, an extensive statement of its several counts will be made.

One of the counts in plaintiff's trial petition was in trespass to try title to the entire 220.83 acres in the William Morris Survey, Abstract No. 38, described in the condemnation proceedings. Next, plaintiff declared upon the written contract heretofore noted, alleging that the defendants retained him as their attorney in the condemnation proceeding and that at such time Trinity River Authority 'had already proceeded in condemnation to take the entire tract of 220 acres of land' described in the trespass to try title count.

Alleging that defendants had 'agreed to compensate Plaintiff for his services 40% Of any excess realized over the original offer,' plaintiff then alleged that by virtue of his efforts, he recovered for his clients 'their respective undivided interest in 65 acres, more or less, of land.'

This allegation then followed:

'By virtue of the contract and the subsequent Compromise Settlement Agreement, Plaintiff became the owner of an undivided 40% Of the real property realized by these Defendants. In this connection Plaintiff asks specific performance requiring these Defendants to convey to Plaintiff an undivided 40% Of their interest in all the remaining 65 acres of land.'

Next, plaintiff had an alternative allegation 'that by virtue of the foregoing these Defendants became bound to pay Plaintiff the reasonable value of the services rendered and performed on behalf of these Defendants in the amount of $73,600.00 which sum Plaintiff has been damaged and for which he here now sues.' Plaintiff alleged that he had performed such services, 'primarily in San Jacinto County, Texas,' that payment thereof not having been made within thirty days after demand, he was entitled to attorney's fees for which he also sued.

A further allegation was contained in the petition to the effect that by reason of such services, plaintiff is entitled to 'an equitable lien against the real estate' and sought to have such established and foreclosed. Finally, plaintiff alleged that the parties were tenants in common 'and together the joint owners of the foregoing real property described in Paragraph II (the 220-acre tract) of this petition, that it is capable of division in kind and should be partitioned among these tenants in common.' Plaintiff's elaborate pleading did not seek a reformation of the contract so as to provide payment for services rendered in the event the recovery was in land as distinguished from money.

Defendant's verified plea of privilege, in addition to the required allegations, contained an additional paragraph reading:

'The action brought by plaintiff is properly construed as one for specific performance of a contract, involving a construction of such contract, alleging joint liability of the defendants. Any and all other allegations contained in such petition, including claim of title to land in trespass to try title and claim for foreclosure of lien for personal services were and are fraudulently made for the purpose of wrongfully maintaining venue in the county of suit.'

Plaintiff's controverting affidavit invoked Exceptions 5, 12, 13, 14 and 29a of Article 1995, Vernon's Ann.Civ.St. Trial of the venue issue was before the court and no findings of fact or conclusions of law were made. Only plaintiff testified upon the hearing.

Plaintiff, in his effort to maintain venue under Exception 5, says, 'This contract calls for all the work to be performed by Appellant and Appellee in San Jacinto County and it is expressly named therein and referred to.' From this premise, he argues that the 'contract sued upon in this case expressly names a definite place for the performance of the obligation imposed thereunder.' The contention so advanced will not stand judicial scrutiny and is rejected. As Justice Pope said in Rogers v. Waters, 262 S.W.2d 521, 522 (Tex.Civ.App., San Antonio, 1953, no writ): 'Venue under Section 5 is not controlled by the place where the contract requires the plaintiff to perform, but by the place where the contractual obligation sued upon requires the defendant to perform.' Here, as in Rogers, 'The contract * * * is silent as regards the place the appellants are to perform.' See also, Western Natural Gas Company v . Kingsley, 355 S.W.2d 246, 248 (Tex.Civ.App., San Antonio, 1962, error dism.); A & S Steel Buildings, Inc. v. Burk, 390 S.W.2d 401, 402 (Tex.Civ.App., Amarillo, 1965, no writ).

Nor does plaintiff fare better when he places his reliance upon Exception 12 of the statute, fixing venue for the foreclosure of a lien. Plaintiff argues that although his contract with defendant was 'executory contract to begin with and did not convey a present interest in the subject matter at that time, but after (nearly four years) the performance by Appellee of his responsibilities and authority under the agreement, it became an executed contract and Appellee's title was converted from an equitable right to an Equitable title.' Plaintiff's reliance upon Patten v Rodgers, 430 S.W.2d 479, 481 (Tex.Sup.1968) is misplaced .

The contract in this case did not convey Any interest in land, legal or equitable. It clearly spoke of a recovery of money and plaintiff was to receive a 'Contingent fee of forty per cent (40%) Of any excess over the total sum of $57,754.00.' Our record clearly shows that plaintiff did recover, on behalf of all of the condemnees in the eminent domain (of which defendant was one), $2,354.00 in excess of the original award mentioned in the contract, and that he was paid a portion of this 'excess' cash so received. His testimony concerning his fee arrangement is given in this manner:

'Q. Now, is it your contention that the phrase 'excess' gives you an interest in land?

'A. That's my understanding of the contract and my intention.

'Q. So that this word 'excess' entitles you to claim right today an interest in land?

'A. I said, 'I'll represent you on a contingent basis of forty per cent of anything that you realize, whether it's land, money, or otherwise."

The contract construed by Justice Pope in Patten, supra, purported to convey an undivided interest "of whatever interest they may recover for us In the land herein described." (430 S.W.2d at p. 481). The contract in issue here does not purport to convey any interest in land. It speaks solely of a division of money and is silent as to the payment of legal services in any medium other than money.

The language of the contract did not convey or require the conveyance of an interest in land. Mann v. Risinger, 423 S.W.2d 626, 633 (Tex.Civ.App., Beaumont, 1968, error ref. n.r.e.). We recognize the rule that where a suit is brought to foreclose a lien on land, venue may be sustained under Exception 12 'by alleging a lien upon the property, without the necessity of proving a valid debt and lien.' Morgan Farms v. Brown, 231 S.W.2d 790, 791 (Tex.Civ .App., San Antonio, 1950), holding expressly approved, Morgan Farms v. Murray, 149 Tex. 319, 233 S.W.2d 123 (1950). But, plaintiff, in order to maintain venue under Exception 12, must allege that he has a valid lien. Texas International Products v. Mustex, Inc., 368 S.W .2d 27, 29 (Tex.Civ.App., Fort Worth, 1963, no writ). And, if the petition fails to state an enforceable claim against the defendant for the foreclosure of a lien, or shows upon its face that plaintiff does not have an enforceable lien, the necessary venue facts are not established under Exception 12, Article 1995, V.A.C.S. 1 McDonald, Texas Civil Practice, § 4.20, p. 483, (1965 Rev.).

Plaintiff's pleading of performance of personal services in the recovery of...