Oxford Development Co. v. Eppes, 364

• Decision Date: 07 December 1967
• Docket Number: No. 364,364
• Citation: 422 S.W.2d 583
• Parties: OXFORD DEVELOPMENT CO., Inc., Vicente V. Garza and Gail E. Cooper, Appellants, v. Paul G. EPPES, Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 583

422 S.W.2d 583

OXFORD DEVELOPMENT CO., Inc., Vicente V. Garza and Gail E Cooper, Appellants, v. Paul G. EPPES, Appellee.

No. 364.

Court of Civil Appeals of Texas.

Corpus Christi.

Dec. 7, 1967.

Philip I. Palmer, Palmer, Palmer & Burke, Dallas, for appellants.

Faires P. Wade, of Wade & Howard, Corpus Christi, for appellee.

OPINION

NYE, Justice.

This is a venue action under sub-section 4 of article 1995, Vernon's Ann.Civ.St. Plaintiff, an architect brought suit against Loyal Stotler, d/b/a Stotler Construction Company of Hidalgo County, Texas and Oxford Development Co., Inc., Vicente Garza, Jr. and Gail Cooper, residents of Webb County, Texas for services performed. The venue phase of the case was tried before the court without the intervention of a jury resulting in the overruling of the non-resident defendants' pleas of privilege. The appellants allege in one point that the trial court erred in overruling their plea of privilege for the reason that the evidence fails to establish a bona fide claim against the resident defendant Stotler.

It is a familiar rule of law that in order to maintain venue under sub-section 4, article 1995, V.A.C.S., where there are resident and non-resident defendants, the plaintiff in order to establish his right to maintain venue must: 1) allege a joint cause of action against the defendants or a cause of action against the resident defendant so intimately connected with the cause of action against the non-resident defendants that the two may be joined under the rule intended to avoid a multiplicity of suits; and 2) prove that one defendant resides in the county where the suit is filed, and that he has a cause of action against such resident defendant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936, opinion adopted by Supreme Court); Ladner v. Reliance Corporation, 156 Tex. 158, 293 S.W.2d 758 (1956); Harbenito Realty Corporation v. Avila, 406 S.W.2d 523 (Tex.Civ.App.--Corpus Christi 1966).

The plaintiff's pleadings are sufficient to constitute a proper joinder of causes of action against all of the defendants resident and non-resident. It is uncontradicted that defendant Stotler lives in Hidalgo County, Texas. The question then, according to the appellant, is whether or not the plaintiff established a prima facie cause of action against the resident defendant Stotler.

In plaintiff-appellee's counterpoint he brings to the attention of this Court that no findings of fact or conclusions of law were requested or filed. Accordingly, the judgment of the trial court implies with it all necessary fact findings in support of such judgment. In seeking to determine whether there is any evidence to support the same, and the implied findings of fact incident thereto, it is proper for us to consider only that evidence most favorable to the issue and to disregard entirely that which opposes it. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114 (1950).

Plaintiff alleged that the original agreement with defendant Stotler was that he would be paid $5,000.00 upon delivery of the builder's plans and the remaining $5,000.00 when the defendant Stotler obtained a construction contract. At a later meeting the agreement was expanded to include an additional building and arrangments to pay for the hiring of a structural engineer with a total fee to be $23,000.00. Plaintiff alleged that in a second letter agreement, it was acknowledged and agreed that he had been paid $10,000.00 and that there was a balance of $13,000.00 due and payable when the owner (appellants) obtained the construction loan for the project. Plaintiff alleged in his amended petition that there was in existence an additional subsequent third party written agreement between the defendant Stotler and appellants relative to the defendant Stotler delivering over to the appellants the building plans which were prepared by the plaintiff so that bids could be taken on the entire project. Plaintiff alleged that this subsequent third-party agreement between the...