Matador Pipelines, Inc. v. Thomas

• Decision Date: 14 April 1983
• Docket Number: No. C14-82-237CV,C14-82-237CV
• Citation: 650 S.W.2d 945
• Parties: MATADOR PIPELINES, INC., Appellant, v. William P. THOMAS, Sr., et al., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 945

650 S.W.2d 945

MATADOR PIPELINES, INC., Appellant, v. William P. THOMAS, Sr., et al., Appellees.

No. C14-82-237CV.

Court of Appeals of Texas,

Houston (14th Dist.).

April 14, 1983.

On Rehearing May 19, 1983.

B. Thomas Cook, Bracewell & Patterson, Houston, for appellant.

Karl C. Hoppess, Dyche & Wright, Houston, John M. Fultz, Fultz & Davis, Navasota, for appellees.

Before JUNELL, MURPHY and SEARS, JJ.

MURPHY, Justice.

This is a venue case involving a suit to quiet title, for recovery of land, and for damages to land under Tex.Rev.Civ.Stat.Ann. art. 1995 § 14 (Vernon 1964). At issue are the propriety of reopening the evidence under Tex.R.Civ.P. 270, deadlines for filing controverting affidavits to pleas of privilege under Tex.R.Civ.P. 5(b) and 86, and sufficiency of venue facts contained in the controverting affidavit. We affirm the trial court's interlocutory order overruling Appellant's Plea of Privilege.

William P. Thomas, Sr., et al. (Appellees) reside in Grimes County and own several tracts of land which lie in both Grimes and Montgomery Counties. The two tracts involved in this suit are described in the petition as the "First Tract" (346.36 acres in the A. Vince Survey, Grimes County), and the "Second Tract" (527 acres in Montgomery and Grimes Counties). A third tract which lies wholly within Montgomery County was removed from the lawsuit by stipulation at the venue hearing. Appellees' predecessor in title had granted a pipeline right-of-way across the two tracts to Magnolia Petroleum Co. Matador Pipelines, Inc. (Appellant) had acquired this right-of-way by assignment. In January 1981, employees of Appellant entered the land for purposes of reworking the pipeline, at which time several segments of pipe were replaced. On August 13, 1981 the pipeline filled with liquefied propane gas exploded, causing damage to the land. Appellees brought suit on November 13, 1981 in Grimes County seeking damages and, alternatively, to quiet title to the land by declaratory judgment which would establish that the right-of-way had expired by its own terms or had been abandoned. They additionally sought removal of the pipeline from the property. The petition alleged Appellees were owners of the land located in Grimes County.

On December 23, 1981, Appellant's attorney mailed to Appellees' attorney a copy of a Plea of Privilege asserting Matador's right to be sued in Montgomery County by virtue of Tex.Rev.Civ.Stat.Ann. art. 1995 § 14 (Vernon 1964). The Plea of Privilege was delivered to the office of Appellee's attorney on December 24, 1981, but the document was not filed with the court until December 28, 1981. On January 7, 1982, Appellees filed a motion for leave to file the controverting plea more than ten days after receipt, stating:

The plea of privilege was delivered to the office of the undersigned attorney while he was on vacation December 24, 1981 to January 4, 1982, and he is unaware of the exact date it was received by his office.... Accordingly, the Plaintiffs through no fault of their own or their attorney may be unable to comply with the requirements of Rule 86 of the Texas Rules of Civil Procedure.

Appellees filed the controverting affidavit itself on January 8, 1982. Appellant filed an Amended Plea of Privilege on January 22, 1982, the date of the initial venue hearing.

At the first hearing the court heard evidence and invited trial memoranda, but reached no decision on the motion for leave to file or the plea of privilege. The issue of good cause for late filing of the controverting affidavit arose briefly in the first hearing, but Appellees stated their January 7 motion contained sufficient grounds of good cause so that no testimony was necessary.

Subsequently, Appellees requested that the evidence be reopened, the request was granted over Appellant's opposition set forth in a trial memorandum of law, and a second hearing was conducted on March 12, 1982. The evidence presented at the second hearing consisted primarily of testimony of Appellees' attorney, Mr. Hoppess, explaining that he filed the controverting affidavit more than ten days after receipt because he and his associate were on Christmas vacation from December 24 through January 3, and in addition, he was in the process of moving his office and joining another firm. Mr. Hoppess further testified that although local co-counsel, Mr. Fultz, received copies of all correspondence and pleadings, he had informed Mr. Fultz that he would handle the pleadings and court proceedings. In addition, Mr. Fultz was unaware that Mr. Hoppess was on vacation or moving his office during late December and early January. At the conclusion of the second hearing, the court granted leave to file the controverting affidavit and overruled Appellant's Plea of Privilege. In appealing the orders granting an extension of time to file the controverting affidavit and overruling the plea of privilege, Appellant asserts six points of error.

In its first point of error, Appellant contends the trial court abused its discretion in contravention of Tex.R.Civ.P. 270 by reopening the evidence after the first venue hearing. Rule 270 permits a court to allow "additional evidence to be offered where it clearly appears to be necessary to the due administration of justice." Appellant and Appellees recognize that the decision to reopen the evidence is a matter within the discretion of the trial court. Smart v. Missouri-Kansas-Texas Railroad, 560 S.W.2d 216, 217 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.). The trial court's decision will be disturbed on appeal only where clear abuse of discretion has occurred. Guerrero v. Standard Alloys Manufacturing Co., 598 S.W.2d 656, 658 (Tex.Civ.App.--Beaumont 1980, writ ref'd n.r.e.). Appellant and Appellee diverge on the question of whether the moving party must show due diligence in order for the trial court to reopen the evidence.

In deciding whether to reopen the evidence, the court may consider any lack of diligence on the part of the movant in seeking to reopen the case, as well as lack of diligence in failing to offer such evidence at the hearing. Isenberg v. Isenberg, 510 S.W.2d 364, 365-366 (Tex.Civ.App.--San Antonio 1974, no writ). Appellees' request to reopen is not a part of the record. Therefore, we are unable to assess the adequacy the allegations contained in that request as a basis for the trial court's decision.

In deciding whether to reopen evidence, the trial court should liberally exercise its discretion in allowing both sides to fully develop the case in the interest of justice. Zodiac Corp. v. General Electric Credit Corp., 566 S.W.2d 341, 346 (Tex.Civ.App.--Tyler 1978, no writ). Under the circumstances, we must presume the trial court did not abuse its discretion in reopening the evidence. It follows, then, that the trial court's action will not be reversed on appeal pursuant to Tex.R.Civ.P. 434. We overrule the first point of error.

Points of error two, three, four and five relate to alleged trial court error in granting Appellees' motion for leave to file the controverting affidavit more than ten days after receipt of the plea of privilege and in overruling Appellant's plea of privilege. Appellant asserts there was no evidence or insufficient evidence of good cause for late filing, as required by Tex.R.Civ.P. 5(b), and, therefore, the court was without jurisdiction to take any action other than to transfer the case to Montgomery County.

Succinctly stated, there are two issues raised by these points of error: (1) was Appellees' controverting affidavit filed late? and (2) if so, did Appellees make a sufficient showing of good cause for late filing under Rule 5(b) to justify the trial court's action in permitting the controverting affidavit to be considered under Rule 86 in overruling the plea of privilege?

The precise question of timing presented by this case has never been addressed, although two conflicting lines of decisions have skirted the issue. The conflict to which we refer involves the interplay between Rule 86 and Rule 21a, the latter of which adds three additional days to any time period prescribed by the Rules when notice of proceedings is given by mail.

One line of cases would allow the operation of Rule 21a in extending the ten day reply period of Rule 86 to thirteen days. Sanchez v. Lewis Refrigeration Co., 568 S.W.2d 410 (Tex.Civ.App.--Houston [1st Dist.] 1978, no writ); Texas Cemeteries, Inc. v. Williams, 459 S.W.2d 876 (Tex.Civ.App.--Waco 1970, no writ). Under these cases, the time for filing a controverting plea does not begin to run until the plaintiff receives notification the plea of privilege has, in fact, been filed. See also Figari, Texas Civil Procedure, 33 SW.L.J. 455, 465 (1979).

A contrary result was reached in Bentley v. Rio Grande Development Group, 607 S.W.2d 319 (Tex.Civ.App.--Fort Worth 1980, no writ) and Wilson v. Groos National Bank of San Antonio, 535 S.W.2d 374 (Tex.Civ.App.--Tyler 1976, no writ), in which the courts read Rule 86 literally and found the filing date of the plea of privilege to be irrelevant and Rule 21a to be inapplicable since Rule 86 dealt with "receipt" and not "service." See also Figari, Graves and Gordon, Texas Civil Procedure, 36 SW.L.J. 435, 448 (1982).

In the case at bar, the application of three day extension under Rule 21a is not at issue. In addition, we find no need to decide which date--receipt or filing--triggers the ten day reply period in the absence of Rule 21a. Appellees received the plea of privilege on December 24, 1981; ten days later (not counting Sunday, January 3) was January 4, 1982. The plea of privilege was filed on December 28, 1981, and ten days thereafter was January 7, 1982. The controverting affidavit was not filed until January 8, 1982, late by either criterion. See Tex.R.Civ.P. 4.

Having determined that the controverting plea was late, we must next decide whether Appellees had a valid excuse for their...