Kw Const. v. Stephens & Sons Concrete

• Decision Date: 08 June 2005
• Docket Number: No. 06-04-00093-CV.,06-04-00093-CV.
• Citation: 165 S.W.3d 874
• Parties: KW CONSTRUCTION, Appellant, v. STEPHENS & SONS CONCRETE CONTRACTORS, INC., Appellee.
• Court: Texas Supreme Court

165 S.W.3d 874

KW CONSTRUCTION, Appellant, v. STEPHENS & SONS CONCRETE CONTRACTORS, INC., Appellee.

No. 06-04-00093-CV.

Court of Appeals of Texas, Texarkana.

Submitted April 13, 2005.

Decided June 8, 2005.

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Philip D. Alexander, Curtis, Alexander, McCampbell & Morris, PC, Emory, for appellant.

Elizann Carroll, Juneau, Boll & Ward, Addison, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice CARTER.

KW Construction appeals the judgment entered following a bench trial in which plaintiff, Stephens & Sons Concrete Contractors, Inc., recovered $12,500.00, plus pre- and post-judgment interest and $7,500.00 in attorney's fees in its suit for breach of an oral contract or, in the alternative, under a theory of quantum meruit. Stephens & Sons alleged there existed an oral contract between the parties in which the parties agreed that Stephens & Sons would repair and construct certain concrete structures under a general contract awarded to KW Construction by the Sabine River Authority (SRA) to construct an office complex in Rains County. After a payment dispute went unresolved, Stephens & Sons brought suit in Lamar County. KW Construction unsuccessfully moved the trial court to transfer the case to Rains County. On appeal, KW Construction complains of the trial court's refusal to transfer the case. KW Construction also contends there is legally and factually insufficient evidence to support both the conclusion that an oral contract was formed between the parties and the trial court's finding of $12,500.00 as the reasonable value of work performed. We will affirm.

I. FACTUAL AND PROCEDURAL HISTORY

KW Construction is a sole proprietorship owned by Kenneth Brown, with its primary place of business in Rains County. KW Construction was awarded the general contract for the SRA to build an office complex in Rains County. The original concrete subcontractor left the job before completion of the concrete work. The work that had been completed to that point was unacceptable because it was not level.

In 1999, Brown contacted Todd Stephens of Stephens & Sons Concrete Contractors, Inc. to discuss the task of repairing and completing the concrete work. Brothers Todd and Paul Stephens¹ traveled from the company's office in Lamar County to meet with Brown and Steve Hunt and to assess the project at the job site in Rains County. After the site inspection, the men met at Brown's house in Rains County to further discuss the project.

Initially, Stephens and Brown agreed that Stephens & Sons would "cap" the defective slab, if the SRA approved the procedure, and complete the remaining concrete work. The "capping" process would have taken approximately two to three days to complete. According to Stephens' testimony, he and Brown agreed that the price associated with the "capping" process would not exceed $18,000.00, the amount representing the remainder of the amount KW Construction had budgeted for construction work on the SRA project. A few days later, Brown called Stephens at his office in Lamar County to inform him that the SRA had rejected the "capping" process as a repair. During this telephone conversation, the two agreed instead that Stephens & Sons would grind and level the existing 5,568 square feet of defective concrete slab, a more difficult and more expensive process than "capping." In addition, Stephens & Sons was to pour approximately 200 square feet of structural slab; pour 2,352 square feet of sidewalk, mechanical pad, and porch; and pour 916 linear feet of curb and gutter.

A dispute concerning payment arose and, eventually, Stephens & Sons left the job incomplete for nonpayment, having substantially completed the grinding and leveling of the defective concrete slab and having poured approximately 100 linear feet of curb and gutter, 215 square feet of porch, and 200 square feet of structural slab. The payment dispute continued and resulted in litigation. Stephens & Sons brought suit in Lamar County against KW Construction to recover funds owed to Stephens & Sons under an oral contract or, alternatively, under a theory of quantum meruit. KW Construction unsuccessfully moved the trial court to transfer the case to Rains County.

II. VENUE

A. Permissive Venue and Review of Ruling on Motion To Transfer Venue

First, we note that a substantial part of the events or omissions giving rise to a claim may occur in more than one county. See S. County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 458 (Tex.App.-Corpus Christi 2000, no pet.). Plaintiffs are accorded the right to choose venue first as long as suit is initially filed in a county of proper venue. Wilson v. Tex. Parks & Wildlife Dep't, 886 S.W.2d 259, 261 (Tex.1994). When the county in which the plaintiff files suit is at least a permissive venue and when no mandatory provision applies, the plaintiff's venue choice cannot be disturbed. See id.; Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673, 677 (Tex.App.-Austin 2003, no pet.). If the parties' dispute involves two counties of permissive venue, transferring the case is improper. Wilson, 886 S.W.2d at 262.

Once the plaintiff's choice of venue is challenged, the plaintiff has the burden to present prima facie proof that venue is maintainable in the county of suit. TEX.R.CIV. P. 87(2)(a), (3)(a); In re Masonite Corp., 997 S.W.2d 194, 197 (Tex.1999). The plaintiff's prima facie proof is not subject to rebuttal, cross-examination, impeachment, or disproof. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex.1993); Chiriboga, 96 S.W.3d at 678. When ruling on a motion to transfer venue, the trial court must assume the pleadings are true and decide based on the pleadings and affidavits submitted by the parties. TEX.R. CIV. P. 87; Chiriboga, 96 S.W.3d at 678. Venue questions are to be decided based on the "facts existing at the time the cause of action that is the basis of the suit accrued." TEX. CIV. PRAC. & REM.CODE ANN. § 15.006 (Vernon 2002). The action must remain in the county of suit if the plaintiff selected a county of proper venue and supported the selection with prima facie proof supporting venue in that county. Wilson, 886 S.W.2d at 261.

In such cases involving disputes over permissive venue, we review the entire record for any probative evidence that venue was proper in the original county of suit. Wilson, 886 S.W.2d at 262; Chiriboga, 96 S.W.3d at 677. In reviewing a venue decision, we must conduct an independent review of the entire record, including, where applicable, the trial on the merits, to determine whether any probative evidence supports the trial court's venue decision. TEX. CIV. PRAC. & REM.CODE ANN. § 15.064(b) (Vernon 2002). We review the record in the light most favorable to the venue ruling; however, we give no deference to the trial court's application of the law. Id. If there is any probative evidence supporting venue in the county where judgment was rendered, we must affirm the trial court's ruling. Bonham State Bank v. Beadle, 907 S.W.2d 465, 471 (Tex.1995); Chiriboga, 96 S.W.3d at 677-78. If no such evidence exists, we must reverse the case. See TEX. CIV. PRAC. & REM.CODE ANN. § 15.064(b); Ruiz, 868 S.W.2d at 758; Chiriboga, 96 S.W.3d at 678.

An appellate court cannot review the sufficiency of the evidence supporting the plaintiff's venue choice. Ruiz, 868 S.W.2d at 758. If the record contains any probative evidence supporting venue in the county of suit, a transfer is improper even if the evidence preponderates to the contrary. Wilson, 886 S.W.2d at 262. However, conclusive evidence to the contrary can destroy the "probative evidence."² See Ruiz, 868 S.W.2d at 757; Chiriboga, 96 S.W.3d at 678.

In this case, no mandatory venue provision applies.³ Therefore, venue here is governed by the general venue rule contained in Section 15.002(a):

(a) Except as otherwise provided by this subchapter or Subchapter B or C, all lawsuits shall be brought:

(1) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;

(2) in the county of defendant's residence at the time the cause of action accrued if defendant is a natural person;

(3) in the county of the defendant's principal office in this state, if the defendant is not a natural person; or

(4) if Subdivisions (1), (2), and (3) do not apply, in the county in which the plaintiff resided at the time of the accrual of the cause of action.

TEX. CIV. PRAC. & REM.CODE ANN. § 15.002 (Vernon 2002). The language pertinent to the venue issue before us is found in Section 15.002(a)(1), which provides that venue is proper in the county where "all or a substantial part of the events or omissions giving rise to the claim occurred." TEX. CIV. PRAC. & REM.CODE ANN. § 15.002(a)(1). We must determine whether the record contains any probative evidence to support the trial court's implied ruling that "all or a substantial part of" the events giving rise to this suit occurred in Lamar County.

B. Venue Facts

KW Construction maintains its place of business in Rains County; Stephens & Sons maintains its place of business in Lamar County. The record is clear that Brown first contacted Stephens & Sons by placing a telephone call to Stephens in Lamar County. After the initial telephone conversation, the Stephens brothers traveled to Rains County to assess the project. Brown then again called Stephens' office in Lamar County. The parties disagree as to whether they agreed to a price during this telephone conversation and, if so, on what price they agreed. But it is undisputed that, during this telephone call, the men came to an agreement as to the scope of the work to be done, since Brown informed Stephens that the SRA rejected the "capping" proposal. Instead, the two men agreed during this conversation that Stephens & Sons would grind and level the defective slab.

Subsequently, all the concrete work was performed in Rains...