Mobil Oil Corp. v. Cook

• Decision Date: 23 April 1973
• Docket Number: No. 8359,8359
• Citation: 494 S.W.2d 926
• Parties: MOBIL OIL CORPORATION and W. G. Brownlee et al., Appellants, v. Darrell G. COOK, Appellee.
• Court: Texas Court of Appeals

Page 926

494 S.W.2d 926

MOBIL OIL CORPORATION and W. G. Brownlee et al., Appellants, v. Darrell G. COOK, Appellee.

No. 8359.

Court of Civil Appeals of Texas Amarillo.

April 23, 1973.

Underwood, Wilson, Sutton, Heare & Berry, Jerry F. Lyons, Amarillo, for appellants.

Buzzard & Comer, Harold L. Comer, Pampa, for appellee.

ELLIS, Chief Justice.

This is a venue case. Mobil Oil Corporation and W. G. Brownlee, two of the defendants in an action wherein the plaintiff alleged a conspiracy to interfere with the sale of his business, have each appealed from an order overruling their respective pleas of privilege. Affirmed as to Mobil Oil Corporation and reversed and rendered as to W. G. Brownlee.

The plaintiff-appellee, Darrell G. Cook instituted a suit in the district court of Gray County, Texas, against Mobil Oil Corporation and W. G. Brownlee, appellants, and two other defendants, John Campbell and Sharon B. Haralson, alleging that the defendants conspired to interfere with Cook's sale of his business as a Mobil consignee to Johnny R. Hayes, and that they sought to prevent Cook's sale to anyone other than defendant Sharon B. Haralson. The appellants Mobil and Brownlee are non-residents. Mobil sought to have the cause as to it transferred to Dallas County, and Brownlee contends that he is entitled to be sued in Randall County, the county of his residence. Cook controverted the pleas of privilege on the grounds that venue should be retained in Gray County as to both Mobil and Brownlee under subdivision 4 of art. 1995, Vernon's Ann.Civ.St., and that, additionally, venue should be retained in Gray County as to Mobil under subdivisions 23 and 27 of art. 1995. The trial court heard the venue matters without a jury and entered judgments overruling the respective pleas of privilege. Both Mobil and Brownlee have appealed. No findings of fact or conclusions of law were filed by the court.

On September 1, 1965, Cook became a consignee, in Pampa, Gray County, Texas, for Mobil Oil Corporation, consignor, under a written consignment contract which could be terminated by either party at any time. The pertinent portion of the consignment contract provides:

'19. It is understood and agreed that the Consignee does not desire to be bound to perform this contract for any particular length of time, and it appearing that there is no practical or feasible way for Consignor to obtain specific performance thereof, in order to have mutuality, it is agreed that either party has the right to terminate this contract at any time, and Consignee's commission shall cease on the date of such termination; and Consignee agrees to immediately give up possession of the premises occupied by Consignee and to surrender unto the Consignor all property, moneys, or other things of value then or subsequently coming into Consignee's possession belonging to Consignor. Such termination, however, shall not affect any rights or liabilities then existing.'

On or about September 29, 1970, Cook caused an advertisement to be published in the Pampa newspaper offering his consignment business for sale, and he authorized the continuation of the publication of the advertisement until after he was notified of the termination of his consignment contract. Early in October, in response to the advertisement, Johnny R. Hayes contacted Cook to discuss the purchase of his business and equipment. They tentatively agreed upon a price of $9,000, conditioned, however, that Hayes could obtain the contract as the Mobil consignee . No written agreement was made at that time. Cook put Hayes in contact with defendants John Campbell and W. G. Brownlee, both of whom were employed by Mobil. A meeting was held by Hayes with Campbell and Brownlee at which they discussed the matter of Hayes' desire to become a Mobil consignee. Neither Campbell nor Brownlee had authority to select the consignee, but they could make a recommendation to a division office at Oklahoma City or Dallas. Nothing was shown regarding what recommendation Brownlee or Campbell made to the division office concerning the selection of Hayes as the consignee. For several months, the division office or offices had Haralson under consideration as a potential consignee. Haralson was offered the consignment contract, and he became the consignee upon the termination of Cook's contract. Further details of the evidence will be noticed in connection with our discussion of the various venue questions raised in this appeal.

The pertinent portions of the venue exceptions to art. 1995, V.A.C .S., relied upon by the appellee are:

Subdivision 4, providing that if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides;

Subdivision 23, providing that suit against a private corporation may be brought in the county in which the cause of action or part thereof arose, provided such corporation has an agency or representative in such county at the time such cause of action or part thereof arose and;

Subdivision 27, providing that a foreign corporation may be sued in any county where such company may have an agency or representative.

As to retaining venue in Gray County over appellant Brownlee, Cook relies solely on subdivision 4, while as to appellant Mobil Oil Corporation, he relies upon subdivisions 4, 23 and 27.

The appellants have asserted nine points of error. In points nos. 1, 3, 4 and 5, they contend that venue cannot be sustained as to either Brownlee or Mobil under subdivision 4 because Cook did not prove a cause of action against either of the resident defendants, Campbell or Haralson; that there is no evidence that the appellants or any of the defendants deprived Cook of the sale of his business and that any finding that appellants or any of them deprived the appellee of such sale is so against the weight and preponderance of the evidence as to be clearly wrong. In points of error nos. 6 and 7, appellants contend that venue cannot be sustained as to Mobil Oil Corporation under subdivisions 23 and 27 because Cook has not established that a cause of action arose against Mobil and that Mobil had an agent or representative in Gray County at the time suit was filed or thereafter. In point no. 8, appellants insist that Cook has not shown that Mobil was a foreign corporation when suit was filed. In the second point, appellants contend that Cook has failed to sustain venue as to Brownlee under subdivision 4, and in the ninth point, that Cook failed to establish venue as to Mobil under subdivisions 4, 23 or 27.

A significant question for determination is whether the proof at the hearing on the pleas of privilege in this case showed that Cook had a cause of action against any of the four defendants, Mobil Oil Corporation, W. G. Brownlee, John Campbell or Sharon B. Haralson, the latter two being residents of Gray County. In order to sustain venue in Gray County under subdivision 4 as to either Mobil or Brownlee, Cook is required to prove a cause of action against a resident defendant. Park v. Wood, 146 Tex. 62, 203 S.W.2d 204 (1947). To sustain venue in Gray County against Mobil under subdivision 23, it is necessary that Cook prove a cause of action against Mobil. Stonewall Insurance Company v Donald, 475 S.W.2d 876 (Tex.Civ.App.--Fort Worth 1972, writ dism'd); Groce v. Gulf Oil Corp., 439 S.W.2d 718 (Tex.Civ.App.--Dallas 1969, no writ). It is our opinion that the evidence does not eatablish a cause of action against any of the four defendants in the suit.

Plaintiff Cook, in his second amended original petition, alleged that: 'during the month of June, 1970, and thereafter until Plaintiff was evicted by Defendants on November 6, 1970, Defendants conspired with each other to remove Plaintiff as Mobil's consignee and to replace Plaintiff with Defendant, Sharon B. Haralson. That pursuant to such conspiracy, Defendants maliciously and with intent to injure Plaintiff overtly committed acts designed to cause Plaintiff hardship and difficulty in the operation of his business as Mobil consignee, to-wit: (3) by interfering with Plaintiff's attempted sale of property owned by Defendant and used in the operation of his business as a Mobil consignee.' Two other allegations of 'overt acts' were eliminated by the trial court on special exceptions.

Although the evidence discloses that defendant Haralson became the consignee of Mobil Oil Corporation in Pampa when the contract with Cook was terminated, the evidence does not show that he had anything whatsoever to do with the termination of Cook's consignment contract, or with the negotiations between Mobil or their local representatives and Johnny R. Hayes in connection with his attempt to become the Mobil consignee. There is no evidence that Haralson ever knew of the negotiations with Hayes or the offer of Hayes to buy Cook's equipment provided he became the consignee of Mobil. Thus, there was no proof that Haralson 'conspired to interfere' with the sale of the business and contract as a consignee of Mobil with anyone. Therefore, no cause of action was shown against him.

Under the terms of the consignment contract of 1965, either the consignee Cook or Mobil could terminate it at any time. In the early part of November, 1970, Mobil terminated the consignment contract, and at approximately the same time, Hayes, made a Written offer of $9,000 for the business and equipment owned by Cook. Both Cook and Hayes admitted, however, that the offer was conditioned upon Hayes' becoming consignee of Mobil. Hayes also admitted knowing that neither Campbell nor Brownlee had authority from Mobil to select a consignee, and that such decision would have to be made at a division office or by higher authority in the Mobil organization. Under the evidence submitted, no one with Mobil who had authority to select a consignee ever made any offer to Hayes to enter into a consignment contract with him, nor was it shown that either Campbell or...