Pit Const. Co. v. West Texas Equipment Co.

• Decision Date: 30 April 1973
• Docket Number: No. 8356,8356
• Citation: 494 S.W.2d 642
• Parties: PIT CONSTRUCTION COMPANY et al., Appellants, v. WEST TEXAS EQUIPMENT COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 642

494 S.W.2d 642

PIT CONSTRUCTION COMPANY et al., Appellants, v. WEST TEXAS EQUIPMENT COMPANY, Appellee.

No. 8356.

Court of Civil Appeals of Texas,

Amarillo.

April 30, 1973.

Rehearing Denied May 21, 1973.

William D. Winston, Lufkin, for appellants.

Stokes, Carnahan & Fields, Richard L. Wilcox, Amarillo, for appellee.

JOY, Justice.

This is an appeal from an order of the trial court overruling appellants' plea of privilege. Reversed and remanded.

Appellee, West Texas Equipment Company, brought suit in the District Court of Donley County against Pit Construction Company, principal, and National Automobile and Casualty Insurance Company, surety, to recover for labor, materials and supplies furnished to Alton B. Lively, dba Lively Construction Company, an alleged subcontractor of Pit Construction Company, and used on a construction project, and for statutory attorney's fees.

Appellants filed a plea of privilege in which it was alleged that Pit Construction Company was a Texas corporation with its residence in Angelina County and that National Automobile was a California Corporation with its principal location in Dallas County, Texas. The appellants prayed that the cause of action be removed to Angelina County, Texas. Appellee filed a controverting affidavit into which its original petition was incorporated by reference. Appellee contended that suit had been instituted under the provisions of Art. 5160, Vernon's Ann.Civ.St.; that Section G of that Article provides, 'All suits instituted under the provisions of this Act shall be brought in a court of competent jurisdiction in the county in which the project or work, or any part thereof, is situated'; that part of the project was located in Donley County, consequently, proper venue was in Donley County. After a hearing on the venue question appellants' plea was overruled.

Appellants presented seven points of error; however all seven points are so closely related it is necessary to consider all seven together. In essence the appellants contend that the trial court erred in overruling their plea of privilege based upon appellee's failure to produce evidence of a cause of action against appellants, and that appellee failed to plead and prove the necessary venue facts to bring the action under art. 5160(G), ¹ and finally, the appellee failed to introduce evidence to establish venue in Donley County.

In a venue hearing, the plaintiff, to defeat a plea of privilege, must both plead and prove the facts relied upon to bring the case within the exception. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935). It is appellee's contention that its pleadings are sufficient Proof that suit was brought under Article 5160. Appellee contends that proof of a cause of action is not necessary to satisfy the venue requirements in that such would go to the merits and is not properly an issue in a venue hearing. In the case of Cole v. Western Brick & Supply Company, 364 S.W.2d 761 (Tex.Civ.App.--Amarillo 1963, writ dism'd), wherein the venue facts necessary to maintain venue under Art. 5160 were set out, there were not only pleadings that the action was brought under 5160, but also stipulations in evidence that the materials in question were actually delivered to the project. In the case of McMillan Construction Co. v. Pierce, 438 S.W.2d 372 (Tex.Civ.App.--Amarillo 1969, writ ref'd n.r.e. at 446 S.W.2d 867), this court found from the record that plaintiff had alleged and Proved sufficient facts to bring the action under Art. 5160. In Pierce a subcontractor/contractor relationship was proved, and in addition, that labor and materials were furnished. After a review of Art. 5160, in light of the above cases, we are of the opinion that the plaintiff's burden on a venue hearing is to allege and prove the following: (1) that the suit was...