Howell v. Mauzy, 3-93-084-CV

CourtCourt of Appeals of Texas
Citation899 S.W.2d 690
Docket NumberNo. 3-93-084-CV,3-93-084-CV
PartiesCharles Ben HOWELL, Appellant, v. Oscar MAUZY and Anne Mauzy, Appellees.
Decision Date14 September 1994

Page 690

899 S.W.2d 690
Charles Ben HOWELL, Appellant,
Oscar MAUZY and Anne Mauzy, Appellees.
No. 3-93-084-CV.
Court of Appeals of Texas,
Sept. 14, 1994.
error denied (Mar 30, 1995)
rehearing of writ of error overruled (Apr 27, 1995)

Page 695

Robert J. Reagan, Dallas, D. Phillip Adkins, Austin, for appellant.

David R. Richards, Gray & Becker, Austin, for appellees.


POWERS, Justice.

Charles Ben Howell appeals from a summary judgment that he take nothing on his claims against Oscar Mauzy and Anne Mauzy for their alleged failure to report certain campaign contributions and expenditures in accordance with Title 15 of the Texas Election Code. Act of May 13, 1985, 69th Leg., R.S., ch. 211, § 8, 1985 Tex.Gen.Laws 1061 (Tex.Elec.Code Ann. §§ 251.001-.019, since amended) ("Election Code"). 1 Howell also appeals from a declaratory judgment the trial court rendered in the Mauzys' favor on their counterclaim. We will reverse the declaratory judgment and render judgment consistent with our opinion. We will affirm the remainder of the judgment.


After contested primary elections, Charles Ben Howell and Oscar Mauzy became the Republican and Democratic party nominees, respectively, in the 1986 election for Place One on the Supreme Court of Texas. Howell filed the present lawsuit shortly before the general election in 1986. He sought damages and injunctive relief against both of the Mauzys 2 for alleged violations of campaign contribution and expenditure reporting requirements in section 251.011 of the Election Code. 3 Under section 251.011(k) of the Code, a candidate is liable in civil damages to each opposing candidate for unreported expenditures or contributions in the election in which they should have been reported. Mauzy counterclaimed for a declaratory judgment that his filings had in fact complied with the applicable Election Code provisions. See Uniform Declaratory Judgments Act, Tex.Civ.Prac. & Rem.Code Ann. §§ 37.001-.011 (West 1986 & Supp.1994).

Both Howell and Mauzy moved for summary judgment. The trial court rendered summary judgment that Howell take nothing by his claims, and rendered declaratory judgment in favor of Mauzy. 4 This appeal ensued.


In his first and second points of error, Howell asserts the trial court erred in overruling his motion to transfer venue to Dallas County. Howell initially filed suit in Dallas County district court on October 17, 1986. He was unsuccessful in obtaining service of citation, and, believing the Mauzys had moved to Austin, filed suit in Travis County district court on October 22, 1986. The Mauzys eventually appeared in the Travis County suit, and filed their counterclaim for declaratory relief. At that time, Howell unsuccessfully

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moved to transfer venue of the Travis County suit to Dallas County. 5

Howell argues that civil suits brought under Title 15 are subject to the venue provision found in former section 251.019 of the Election Code providing:

Venue for any offense resulting from a violation of this chapter shall lie exclusively in the county of the residence of the accused, except when the accused is a nonresident of Texas, in which case venue shall lie in Travis County. 6

Howell contends that this provision is jurisdictional and mandatory, and asserts that the Mauzys deceived him regarding the location of their residence, which Howell now claims was in Dallas at the time he filed suit in October 1986.

The Mauzys contend that section 251.019 pertains solely to criminal actions under the Election Code, and argue that the general permissive venue statute applies. See Tex.Civ.Prac. & Rem.Code Ann. § 15.001 (West 1986). Section 15.001 provides that a lawsuit shall be brought in the county in which all or part of the cause of action accrued or in the county of defendant's residence. The Mauzys argue that the cause of action accrued in Travis County, and further, that Howell waived his right to complain about venue by filing suit in Austin. 7

We need not decide if section 251.019 of the Election Code applies to civil suits, because we find in the record some evidence that the Mauzys had a residence in Travis County when Howell filed this lawsuit. Therefore, venue was proper in Travis County under either the permissive venue statute or section 251.019 of the Election Code.

In reviewing the trial court's ruling on a motion to transfer venue, we must consider the entire record. Tex.Civ.Prac. & Rem.Code Ann. § 15.064(b) (West 1986); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex.1993). We need not review the evidence for factual sufficiency. Ruiz, 868 S.W.2d at 758. Rather, we must defer to the trial court if there is probative evidence to support the trial court's decision, even if the preponderance of the evidence is to the contrary. Id. Thus, "if there is any probative evidence in the entire record ... that venue was proper in the county where judgment was rendered, the appellate court must uphold the trial court's determination." Id. We may reverse the judgment and remand the cause only if there is no evidence that venue was proper in the county of suit. Id.

At a hearing on Howell's motion to transfer venue and plea in abatement, Anne Mauzy testified 8 she and Oscar Mauzy had placed their Dallas home on the market in January 1986. They had moved the contents of their Dallas home to Austin in early August 1986. She stated that by October 17, 1986, the date Howell filed the Dallas lawsuit, she had moved to Austin. At that time, the Mauzys had not yet sold their Dallas home. She stated that during this time Oscar Mauzy was campaigning, and thus traveling, although he sometimes stayed at their Austin home.

Page 697

Oscar Mauzy testified that he purchased the Austin home sometime in 1986, and began to stay there. When he was in Dallas during the last months of 1986, he stayed at another residence because their Dallas home was vacant and for sale.

Howell introduced two returns of service of citation in which two deputy constables stated they had attempted service on the Mauzys at their Dallas residence on October 17th and 20th, but that the house was vacant and for sale.

Based on the above summary of the evidence, we conclude there is some evidence that in October 1986, the Mauzys were in the process of moving their residence from Dallas County to Travis County. If a defendant is in the process of moving from one county to another, and his affairs are in such a state that it is uncertain in which county his residence is, he may be sued in either county. Haney v. Henry, 307 S.W.2d 649, 653 (Tex.Civ.App.--Amarillo 1957, no writ); Eppenauer v. Schrup, 121 S.W.2d 473, 477 (Tex.Civ.App.--Fort Worth 1938, no writ).

For venue purposes, moreover, a defendant may have a residence in two or more counties. Davenport v. Harry Payne Motors, Inc., 247 S.W.2d 452, 453 (Tex.Civ.App.--Austin 1952, no writ); see Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136, 139 (1951). 9 The presence of a defendant's wife living in a second place of abode is evidence of a second residence, although it does not conclusively establish a second residence as a matter of law. Snyder, 241 S.W.2d at 140; Cauble v. Gray, 604 S.W.2d 197, 199 (Tex.Civ.App.--Dallas 1979, no writ). Based on the entire record, we conclude there is some evidence that both Mauzys maintained a residence in Travis County at the time Howell filed suit. We overrule Howell's first and second points of error.


In points of error three through eight, Howell contends the trial court erred in overruling his plea in abatement. As grounds for the plea, Howell asserted the pendency of the Dallas lawsuit that he had filed five days before the Austin lawsuit. After a hearing on the plea, the trial court overruled the plea in abatement on two grounds: (1) Howell was estopped to assert the pendency of the Dallas lawsuit; and (2) Howell had abandoned the Dallas lawsuit. 10

Generally, if two lawsuits concerning the same controversy and parties are pending in courts of coordinate jurisdiction, the court in which suit was first filed acquires dominant jurisdiction. 11 Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988); Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974); V.D. Anderson Co. v. Young, 128 Tex. 631, 101 S.W.2d 798, 800 (1937). Abatement of a lawsuit due to the pendency of a previous lawsuit is based on the principles of comity, convenience, and the necessity for an orderly procedure in the trial of contested issues. Wyatt, 760 S.W.2d at 248. If a party calls the second court's attention to the pendency of the first suit by a plea in

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abatement, that court must sustain the plea. Curtis, 511 S.W.2d at 267.

However, the mere physical filing of the petition is insufficient to deprive a court in which the same suit is subsequently filed of active jurisdiction. V.D. Anderson Co., 101 S.W.2d at 800-01. Matters accruing subsequent to the filing of the first suit may defeat the plea in abatement. Reed v. Reed, 158 Tex. 298, 311 S.W.2d 628, 630 (1958). In this connection, three exceptions exist to the general rule requiring abatement of the second suit: (1) a party's conduct may estop him from asserting dominant jurisdiction in another court; (2) the first court may lack power to join parties to be joined if feasible; or (3) the party filing the first suit lacks the intent to prosecute it. Wyatt, 760 S.W.2d at 248. If, as happened here, the second court determines that one of the exceptions applies, it may assume dominant jurisdiction and proceed to judgment. 12 Hartley v. Coker, 843 S.W.2d 743, 747 (Tex.App.--Corpus Christi 1992, no writ).

Howell does not dispute that in October 1986, soon after he filed both lawsuits, he sought a writ of mandamus from the supreme court to compel the Travis County district court to hold a hearing in the case, and in his petition for the writ he expressly represented that Travis County...

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