Lozano v. Tex-Paint, Inc.

• Decision Date: 11 September 1980
• Docket Number: No. 1345,INC,TEX-PAIN,1345
• Citation: 606 S.W.2d 40
• Parties: Johnny LOZANO, Appellant, v.et al., Appellees.
• Court: Texas Court of Appeals

Page 40

606 S.W.2d 40

Johnny LOZANO, Appellant, v. TEX-PAINT, INC. et al., Appellees.

No. 1345.

Court of Civil Appeals of Texas, Tyler.

Sept. 11, 1980.

Daniel R. Rutherford, San Antonio, for appellant.

John M. Tutt, San Antonio, for appellees.

SUMMERS, Chief Justice.

This is an appeal from an order sustaining defendants' pleas of privilege and transferring the cause to Travis County.

Appellant, Johnny Lozano, as plaintiff, filed this suit in the District Court of Bexar County, Texas, against appellees, Tex-Paint, Inc., John Robert Stratton, and Lee Folta. Appellant's original petition sets forth in Paragraph II his alleged cause of action as follows:

Subsequent thereto, your Plaintiff caused to be filed certain proceedings in said cause and prior to judgment paid the $613.95 into the registry of the court. That subsequent thereto and thereafter, the Defendants and all of them by and through their attorney of record, therein, John Robert Stratton, through various and diverse means proceeded to embark upon a course of harsh, cruel, and inhuman treatment toward your Plaintiff such as to harass him and to build their money damages. That subsequent thereto and thereafter, with a judgment for more money than they were entitled to the Defendants and all of them proceeded to have process issued against the Plaintiff such that he was arrested and confined in the custody of the Sheriff of Bexar County on at least two occasions and attempted to force the Plaintiff to execute a bail bond running to the benefit of the Defendant such that in the event the Plaintiff failed to appear the amount of the bond would be forfeited to the Defendant thereby greatly enhancing their position financially.

The acts, alleged above by appellant, related to a prior suit on sworn account styled Tex-Paint, Inc. v. Lozano. In that case, Lozano's attorney tendered into the registry of the court $613.95, which he alleged was the amount due on the sworn account; subsequently, Tex-Paint, Inc. took a default judgment therein against Lozano for $1,155.60. Lozano alleges that he did not receive notice of the default judgment until Tex-Paint withdrew the money from the registry of the court and proceeded in its attempts to recover the remaining part of the judgment. During the next year Tex-Paint filed several motions to compel answers to interrogatories which it had submitted to Lozano. The trial court granted these motions and issued orders for Lozano to answer the interrogatories. The interrogatories were never answered and the trial court caused Lozano to be arrested several times under writs of attachment issued pursuant to court orders in contempt proceedings. Lozano alleges that the first time he was arrested he had no prior notice that he was in contempt; that Tex-Paint's lawyer sent a bond along with the writ of attachment; that this bond was payable to Tex-Paint, Inc. in case of default; that the sheriff of Bexar County would not let him sign the bond because it was not made out to the State of Texas; and that the sheriff amended a regular criminal bond which Lozano signed. John Robert Stratton was the attorney of record for Tex-Paint, Inc. in this suit and Lee Folta was the credit manager for Tex-Paint, Inc. Upon a bill of review filed by Lozano, the trial court refused to set aside the default judgment rendered against him. Subsequently, Lozano filed the present suit against Tex-Paint, John Robert Stratton, and Lee Folta.

Appellees, Tex-Paint and John Robert Stratton, filed pleas of privilege requesting transfer of the case to Travis County, Texas, and subject thereto, general denials. Appellant filed controverting affidavits asserting that venue was lawfully maintainable in Bexar County, Texas, pursuant to subdivisions 4, 9, 23, and 29a of Article 1995. ¹ After a hearing upon such pleas of privilege, the trial court entered an order sustaining said pleas of privilege. From this order appellant has prosecuted this appeal.

We affirm.

The record before us is without findings of fact or conclusions of law. Under these circumstances, the well-settled rule is that the appellate court is required to affirm the judgment rendered by the trial court if it can be sustained on any reasonable theory authorized by law and supported by the evidence. Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.1962); Sanders v. Republic National Bank of Dallas, 389 S.W.2d 551, 554 (Tex.Civ.App.-Tyler 1965, no writ).

Appellant predicates this appeal upon four points of error contending that the trial court erred in sustaining the defendants' pleas of privilege after plaintiff pled and proved each of the requisite venue facts under subdivisions 4 (point 1), 9 (point 2), 23 (point 3), and 29a ² (point 4) of Article 1995. Under these points appellant contends that he pled and proved the existence of a bona fide cause of action against defendants, specifically false imprisonment and abuse of process.

It is the general rule in Texas that a defendant is entitled to be sued in his own county unless it clearly appears that one of the exceptions set forth in Article 1995, supra, will apply. Goodrich v. Superior Oil Co., 150 Tex. 159, 237 S.W.2d 969, 972 (1951).

To sustain venue in a given case it is the plaintiff's burden to allege and prove the venue facts appropriate to the character of the suit alleged. Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69, 71 (1945); Kimbell, Inc. v. Roberson, 570 S.W.2d 587, 589 (Tex.Civ.App.-Tyler 1978, no writ); Burrows v. Texas Kenworth Co., 554 S.W.2d 300 (Tex.Civ.App.-Tyler 1977, dism'd).

It is well established that in a venue hearing the plaintiff has the same burden of proving a cause of action as on a trial on the merits. Flowers v. Dempsey-Tegeler & Co., 472 S.W.2d 112, 116 (Tex.1971); Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69, 71 (Tex.1945); Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 95 (1935); Kimbell, Inc. v. Roberson, supra; Kirby Lumber Corp. v. Treadway, 382 S.W.2d 316, 319 (Tex.Civ.App.-Beaumont 1964, writ dism'd).

From the record before us it appears that a valid judgment, in the sworn account suit, was outstanding at all times. In the present suit, appellant relies on actions taken by the appellees in enforcing that judgment to constitute false imprisonment and abuse of process. We cannot agree.

In J. C. Penney Company v. Duran, 479 S.W.2d 374, 379 (Tex.Civ.App.-San Antonio 1972, writ ref'd n. r. e.), it was stated that:

"The essential elements of false imprisonment are: (1) a willful detention of the person; (2) a detention without authority of law; and (3) a detention against the consent of the party detained."

The court said in Tandy Corporation v. McGregor, 527 S.W.2d 246, 248 (Tex.Civ.App.-Texarkana 1975, writ ref'd n. r. e.): "It is a complete defense to an action for false imprisonment that the arrest or detention was by virtue of process, legally sufficient in form, and duly issued by a court or official having jurisdiction to issue it."

In the present case, appellant complains of several arrests of his person, by the sheriff of Bexar County, made under the authority of writs of attachment. Appellant testified at the plea of privilege hearing that prior to his first arrest he did not receive any notice of contempt proceedings against him. Each writ of attachment was issued pursuant to an order of the trial court (copy of which was attached to the writ) holding the appellant in contempt and ordering that the writ of attachment issue for his arrest. Each of such orders, after reciting that appellant had notice of the show cause hearing but failed to appear, further ordered that:

Appellant appear in this Court at a specified date in the future, and show cause why he should not continue to be held in contempt of court;

Bond to assure the appearance after attachment of the appellant be set at $1,000.00, that surety bond is required and no personal recognizance shall be allowed; and

If appellant fails to post proper appearance bond, appellant, when attached, be confined in the county jail by the officer attaching him until he purges himself of contempt...