Pinney v. Cook

• Decision Date: 22 September 1977
• Docket Number: No. 1208,1208
• Citation: 558 S.W.2d 33
• Parties: Warren PINNEY, Jr. and Charles M. Dodd, III, Appellants, v. Keith E. COOK, Appellee.
• Court: Texas Court of Appeals

Page 33

558 S.W.2d 33

Warren PINNEY, Jr. and Charles M. Dodd, III, Appellants,

v. Keith E. COOK, Appellee.

No. 1208.

Court of Civil Appeals of Texas, Corpus Christi.

Sept. 22, 1977.

Rehearing Denied Nov. 23, 1977.

Robert M. Roller, Dallas, for appellants.

J. G. Adami, Jr., Alice, for appellee.

OPINION ON MOTION FOR REHEARING

NYE, Chief Justice.

Our original opinion is withdrawn and this opinion is substituted therefor.

This is a venue case. Appellee Cook brought suit in Nueces County against Warren Pinney, Jr. and Charles M. Dodd, III for breach of certain alleged agreements between the parties concerning the operation of an oil and gas lease on some land owned by Cook in Duval County. Defendant Pinney filed a plea of privilege to be sued in Dallas County. Cook filed a controverting plea. After hearing, the trial court denied Pinney's plea of privilege. Pinney has perfected his appeal to this Court.

Pinney and Dodd are the co-owners of an oil and gas lease on some 320 acres owned by Cook in Duval County. Pinney and Dodd acquired this lease in 1973. Apparently the parties had some initial agreement whereby the oil that was produced from the lease was to be stored in storage tanks located on the property. In 1974 an oil spill occurred on the property due to a leak in one of the storage tanks. Thereafter the parties entered into a new agreement wherein Pinney and Dodd were to connect the well to an oil flow line owned by Cook and remove the storage tanks from the property. Pinney and Dodd also agreed with Cook to pay Cook a certain amount of rental for either each barrel of oil produced and sent through the pipeline, or for each barrel of fluid produced and sent through the pipeline. At the time of the hearing, the storage tanks remained on the property.

The cause of action that is now before this Court is the second suit brought by Cook against Pinney. In 1974 Cook sued Pinney in Duval County for damage to his cattle and other matters. Pinney filed a plea of privilege which was overruled by the trial court. Pinney appealed and the Tyler Court of Civil Appeals reversed the trial court's judgment, and ordered the case transferred to Dallas County. Pinney v. Cook, 534 S.W.2d 415 (Tex.Civ.App. Tyler 1976, no writ). Thereafter, in May of 1976, Cook took a non-suit and the first case was dismissed without prejudice.

In July of 1976 Cook brought this present suit against Pinney and Dodd in Nueces County for improper rental payments; for an accounting on the pipeline rental; and for failure to remove the storage tanks. Dodd filed a general denial. Pinney again filed a plea of privilege to be sued in Dallas County and a general denial. Cook then filed a controverting plea wherein he alleged venue in Nueces County under subsections 4 and 29a of Article 1995, Tex.Rev.Civ.Stat.Ann. (1964). Pinney's plea was subsequently overruled by the trial judge. No findings of fact or conclusions of law were requested or made by the trial judge.

Pinney in his appeal and motion for rehearing presents three main points of error to this Court. The first point is whether or not Cook is estopped by the principle of res judicata to establish venue outside of Dallas County.

Pinney contends Cook has simply reinitiated the same lawsuit in Nueces County that he filed in Duval County in 1974. Pinney says that since both cases involve the same issues, Cook is estopped by principles of res judicata from asserting venue in Nueces County. A review of the separate pleadings is necessary to determine if the two suits are identical. In the first suit Cook actually sought two separate recoveries against Pinney alone: a) damages to his cattle due to the negligence of Pinney's agents; and b) damages for failure of Pinney to remove the storage tanks which allegedly forced him to overgraze the remainder of his pasture. In the second suit Cook sought recovery from Pinney and Dodd: a) for the amount of rental due on the pipeline; and b) for the failure to remove the storage tanks which allegedly caused overgrazing. The storage tank claims remained the same even though in the second suit Cook abandoned his negligence claim, included an additional claim for recovery of the pipeline rental payments, and added Dodd as an additional defendant as to each claim asserted against Pinney. The question therefore for us to decide, is, to what extent is venue in the second suit controlled by the previous adjudication of venue by the Tyler Court of Civil Appeals?

As a general rule, a final judgment rendered on a plea of privilege is conclusive on the parties as to the issue of venue and such judgment irrevocably fixes venue of any suit involving the same subject matter. Hagemeister v. Vanity Fair Properties, 503 S.W.2d 879 (Tex.Civ.App. Tyler 1973, writ dism'd); see H. H. Watson Co. v. Cobb Grain Co., 292 S.W. 174 (Tex.Comm'n App.1927, judgmt. adopted); Keys v. May Aluminum, Inc., 431 S.W.2d 380 (Tex.Civ.App. Houston (14th Dist.) 1968, writ dism'd); Southwestern Investment Company v. Gibson, 372 S.W.2d 754 (Tex.Civ.App. Fort Worth 1963, no writ). In order for the principles of res judicata to apply the subsequent suit must involve the same subject matter and the same parties as the initial suit. Royal Petroleum Corporation v. McCallum, 134 Tex. 543, 135 S.W.2d 958 (1940); Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222 (1943); Marange v. Marshall, 402 S.W.2d 236 (Tex.Civ.App. Corpus Christi 1966, ref. n. r. e.); Gathright v. Riggs, 344 S.W.2d 757 (Tex.Civ.App. Waco 1961, no writ).

The Tyler Court of Civil Appeals overruled the trial court's determination that Cook's 1974 suit was properly brought in Duval County under subsection 9 of Article 1995, Tex.Rev.Civ.Stat.Ann. (1964) and ordered the suit transferred to Dallas County. This decision irrevocably fixed venue in Dallas County as to both claims against Pinney in the first suit. The principle of res judicata dictates that any subsequent suit brought by Cook against Pinney based on either claim should also be heard in Dallas County. 1 McDonald, Texas Civil Practice, § 4.62, at 628-29 (1965); Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222, 224 (1943); Keys v. May Aluminum, supra, Roach v. Trinity Universal Ins. Co., 119 S.W.2d 127, 128 (Tex.Civ.App. Texarkana 1938, no writ). Venue is fixed in Dallas County as to Cook's storage tank claim against Pinney even though Cook added defendant Dodd to this suit. The mere presence of Dodd does not prevent the former judgment from binding both Cook and Pinney who were parties to that judgment and to this suit in which Pinney asserted the plea of res judicata. Southwestern Investment Co. v. Gibson, 372 S.W.2d 754, 756 (Tex.Civ.App. Fort Worth 1963, no writ). The trial court should have sustained Pinney's plea of res judicata on the storage tank claim, and ordered it transferred to Dallas County.

The transfer of this claim against Pinney to Dallas County does not necessarily require transfer of the same claim against Dodd to Dallas County. Such a transfer would be necessary only if Cook alleged a joint action growing out of joint liability of both defendants. This is a contract action for damages which appears to involve joint and several liability of the defendants. Cook can obtain complete relief in a suit against either Pinney or Dodd even though joinder might otherwise be desirable. 1 McDonald, Texas Civil Practice, § 4.57, pp. 619-20 (1965); 44 Tex.Jur.2d, Parties § 17 (1963); International Harvester Co. v. Stedman, 159 Tex. 593, 324 S.W.2d 543, 546 (1959); Johnson v. First Nat. Bank of Brenham, 42 S.W.2d 870, 871-72 (Tex.Civ.App. Waco 1931, no writ). Furthermore, Dodd was not a party to the original suit between Cook and Pinney and is not bound by the principle of res judicata on the issue of venue. Sports Specialties, Inc. v. James Talcott Western, Inc., 389 S.W.2d 357, 360 (Tex.Civ.App. Waco 1965, no writ).

While the addition of Cook's claim for improper rental payments in the second suit does not affect Pinney's previously adjudicated right to have venue in Dallas County as to the storage tank claim, res judicata does not control venue of Cook's rental payment claim against Pinney because the subject matter in dispute in the subsequent suit differs from the prior action. 1 McDonald, Texas Civil Practice § 4.62, p. 628 n. 68 (1965); H. Molsen & Co., Inc. v. E. W. Settle, 534 S.W.2d 376, 378 (Tex.Civ.App. Dallas 1976, no writ); Keys v. May Aluminum, Inc., 431 S.W.2d 380 (Tex.Civ.App. Houston (14th Dist.) 1968, writ dism'd); Gathright v. Riggs, 344 S.W.2d 757 (Tex.Civ.App. Waco 1961, no writ).

The resolution of each separate claim will involve facts and issues that are not similar. Each claim alleges a separate breach which could be adjudicated in separate lawsuits. Cf. Benson v. Wanda Petroleum Company, 468 S.W.2d 361 (Tex.Sup.1971); Martinez v. Angerstein, 517 S.W.2d 811 (Tex.Civ.App. Corpus Christi 1974, writ dism'd); Keys v. May Aluminum, 431 S.W.2d 380 (Tex.Civ.App. Houston (14th Dist.) 1968, writ dism'd).

Although both claims could properly be joined in a single suit, a single suit cannot be maintained in Nueces County without the consent of Pinney. The scope of the trial court's venue hearing should have been limited to whether venue could be maintained in Nueces County on Cook's second claim against Pinney and Dodd. We therefore sustain Pinney's first point of error as it relates to Cook's cause of action for Pinney's alleged failure to remove the storage tanks.

Appellant Pinney's points 2 through 10 complain that the trial court erred in sustaining venue under subdivision 4 of Article 1995. Subdivision 4 to Article 1995 provides that if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. Under Subdivision 4, where there are resident and non-resident defendants, it has long been the rule that in order to maintain venue in the county of the resident defendant, ...