Houston Sash & Door Co., Inc. v. Davidson, 7581

• Decision Date: 09 May 1974
• Docket Number: No. 7581,7581
• Citation: 509 S.W.2d 690
• Parties: HOUSTON SASH & DOOR COMPANY, INC., et al., Appellants, v. William C. DAVIDSON, Jr., Trustee, Appellee.
• Court: Texas Court of Appeals

Page 690

509 S.W.2d 690

HOUSTON SASH & DOOR COMPANY, INC., et al., Appellants, v. William C. DAVIDSON, Jr., Trustee, Appellee.

No. 7581.

Court of Civil Appeals of Texas,

Beaumont.

May 9, 1974.

Rehearing Denied May 30, 1974.

William Emerson Wright, Houston, for appellants.

David I. Kuperman, Gibbons & Spivey, Austin, for appellee.

KEITH, Justice.

This is a venue appeal wherein the plaintiff relied upon Subdivision 4, Art. 1995, Vernon's Ann.Civ.St., to maintain venue in the county of suit. We will designate the parties as they appeared in the trial court. A somewhat extensive statement of the background of the suit is required to put the controversy into focus .

Etta and Jay Levin instituted this suit against several corporations, their officers and directors claiming a malicious suppression of dividend payments and sought to recover, derivatively, damages for alleged corporate mismanagement. The Levins having taken refuge in bankruptcy, Davidson, as Trustee in Bankruptcy, was substituted as a party plaintiff. He maintained the original claims of the Levins in his amended pleadings; but, in his third amended original petition filed shortly before the hearing on the plea of privilege, he added an additional cause of action.

The new count in the pleading alleged that one R. F. Michel ¹ had wrongfully foreclosed a pledge of certain stocks owned by Mrs. Levin in the several corporations and his prayer for relief read: 'That the sale of the shares of stock described above be overturned and the Defendant R. F. Michel be compelled to turn over such stock to the Plaintiff in the event damages are not awarded and a dividend be not compelled.'

One of the individual defendants was a resident of Travis County while one of the corporate defendants was domiciled therein. Plaintiff made no effort to prove any cause of action against any defendant, resident or non-resident, save and except that of wrongful foreclosure of the stock.

At the very beginning of the hearing on the controverting plea, counsel for the appealing defendants, acting for all of the defendants then before the court, read into the record a 'stipulation':

"That pursuant to the Plaintiff's prayer for relief, that the sale of the shares of stock described in the petition, to-wit, being the shares sold at the purported foreclosure sale under the security agreements executed by Jay and Etta Levin and described in the pleadings, said sale apparently having occurred in September 24, 1971, we stipulate that that foreclosure sale is and hereby be set aside and held null and void."

This being an unexpected development, counsel for the plaintiff procured a short recess to study the matter before the hearing resumed. Thereafter, plaintiff's counsel began the proof of his claim by stating:

'We would like to begin by offering into evidence the stipulation first announced by Mr. Wright earlier this morning, if the Court Reporter will type this, and this will be Plaintiff's No. 1.'

Whereupon, the stipulation previously offered by defendants was accepted and received in evidence.

In accepting the tendered stipulation by introducing it into evidence, plaintiff made a judicial admission that he had no cause of action for wrongful foreclosure At the time of the hearing and the entry of the order overruling the pleas of privilege. Justice Walker's succinct holding in Gevinson v. Manhattan Construction Co. of Okl., 449 S.W.2d 458, 466 (Tex.1969), is dispositive:

'A true judicial admission is a formal waiver of proof and is usually found in the pleadings Or in a stipulation of the parties. * * * The vital feature of a judicial admission is its conclusiveness on the party making it. It not only relieves his adversary from making proof of the fact admitted but also bars the party himself from disputing it.' (emphasis supplied, citations omitted)

Plaintiff was entitled to plead and prove inconsistent causes of action and seek alternative relief. Thus, his plea to overturn the foreclosure sale and his alternate prayer for damages caused by the alleged wrongful foreclosure were properly combined in a single suit . Rules 47 and 48, Texas Rules of Civil Procedure; McKenzie v. Carte, 385 S.W.2d 520, 526 (Tex.Civ.App., Corpus Christi, 1964, error ref. n.r.e.); Albright v. Long, 448 S.W.2d 564, 566 (Tex.Civ.App., Amarillo, 1969, no writ); Cantu v. Bage, 467 S.W.2d 680, 682 (Tex.Civ.App., Beaumont, 1971, no writ). In this case, plaintiff pleaded his alternative causes of action and defendants could not put him to an election thereon in the venue hearing. Texarkana Water Supply Corp. v. L. E. Farley, Inc., 353 S.W.2d 885, 889 (Tex.Civ.App., Houston, 1962, no writ); Monroe v. Mercer, 414 S.W.2d 756, 760 (Tex.Civ.App., Houston, 1967, error dism.).

The selection of one remedy where two are available is a waiver of the other. Thrower v. Brownlee, 12 S.W.2d 184, 186 (Tex.Comm.App., 1929); Bridwell v. Bernard, 159 S.W.2d 981, 984 (Tex.Civ.App., Fort Worth, 1942, error ref. w.o.m.); Employers Reinsurance Corp. v. Wagner, 250 S.W.2d 420, 422 (Tex.Civ.App., Galveston, 1952, error ref. n.r.e.). Plaintiff, having two inconsistent remedies, only one of which could be granted, made his election; and, having made the election, he is bound thereby. Saner-Whiteman Lumber Co. v. Texas & N.O. Ry. Co., 288 S.W. 127 (Tex.Comm.App., 1926, holding approved).

Plaintiff, citing Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936), recognizes the rule, as indeed he must, that in seeking to maintain vanue under subdivision 4 he must prove at the venue hearing: (1) at least one defendant resides in the county of suit; (2) the party asserting his plea of privilege is at least a proper party to the claim against the resident defendant; and (3) the plaintiff has a bona fide cause of action against the resident defendant. ²

Plaintiff contends that he discharged the burden of proving a cause of action for wrongful foreclosure by offering proof that such a cause of action 'existed as a matter of law At the time Appellee filed his Third Amended Petition.' Recognizing that he had no cause of action for wrongful foreclosure After he accepted the stipulation setting aside the foreclosure, plaintiff argues: 'The cause of action against a resident defendant required by Subdivision 4 need exist only at the time the plaintiff files his suit.'

In order to meet the contention so advanced, we will concede that the proof introduced at the hearing was sufficient to establish existence of a cause of action for wrongful foreclosure at the time of the filing of the pleading. But, when plaintiff accepted the stipulation offered by defendants by introducing the same in evidence, he made a judicial admission that the wrongful foreclosure had been set aside and was no longer a justiciable issue in the case .

Thus, plaintiff established conclusively on the hearing of the pleas of privilege that he had no cause of action for wrongful foreclosure against either the resident or non-resident defendants. Since he made no effort to prove any other cause of action against the resident defendants, we now reach the determinative question in the appeal: In order to maintain venue under subdivision 4, Art. 1995, must plaintiff prove the existence of a cause of action at the time of the hearing against the resident defendant? Although we are of the opinion that the modern authorities require an affirmative answer to the question posed, we turn first to a consideration of the authorities which plaintiff claims requires a negative answer.

Plaintiff relies upon a series of cases of doubtful precedential value which we decline to follow in this case. Primary reliance is placed upon Logan v. Ludwick, 283 S.W. 548 (Tex.Civ.App., Fort Worth, 1926, no writ). Even a cursory examination of this opinion reveals that the decision turned upon the applicability of subdivision 12, not subdivision 4. ³ It has since been authoritatively determined that a plaintiff who pleads a lien and shows the location of the property in the county of suit need not establish by extrinsic evidence that he has a lien enforceable against the defendant. See, Morgan Farms v. Murray, 149 Tex. 319, 233 S.W.2d 123 (1950), approving the holdings in the underlying case reported sub nom., Morgan Farms v. Brown, 231 S.W.2d 790 (Tex.Civ.App., San Antonio, 1950). The comments in Logan with reference to subdivision 4 were neither necessary nor determinative of the case as presented by the record.

Nor are we persuaded by plaintiff's reliance upon Harris v. Allison, 29 S.W.2d 413 (Tex.Civ.App., San Antonio, 1930, no writ). The third sentence in this opinion reads: 'If a plea of privilege can be waived, it was waived in this case.' ⁴ It is to be noted that the court cited Logan v. Ludwick, supra, for the proposition that Jurisdiction having been acquired over Harris, the removal of the co-defendant from the suit by 'death, compromise, or otherwise, did not destory the Jurisdiction over appellant.' ⁵ (29 S.W.2d 413, emphasis supplied) We do not read Allison as supporting a rule that venue can be sustained when plaintiff fails to prove the existence of any cause of action against Any defendant at the hearing on the plea of privilege.

Plaintiff also quotes this language from Lewis v. Davidson, 51 Tex . 251, 256 (1879): '(T)he suit was properly brought in the county of Harris in the first instance, as the (resident) co-defendant Austin then resided there; and the fact that he subsequently died, and the cause was dismissed as to him, would not divest the previously-acquired Jurisdiction over the (non-resident) other defendant.' (emphasis ours) Plaintiff overlooks the fact that prior to 1907 the modern plea of privilege was in the nature of a plea in abatement going to the jurisdiction of the court over the person of the defendant which, if sustained, resulted in a dismissal of the suit. See, e.g., Blucher v. Milsted, 31 Tex. 621, 623 (1869); Brundidge v. Rutherford...