Time Housing Corp. v. Nunez
| Decision Date | 16 May 1984 |
| Docket Number | No. 04-83-00001-CV,04-83-00001-CV |
| Citation | 671 S.W.2d 694 |
| Parties | TIME HOUSING CORPORATION, Appellant, v. Jose NUNEZ, et ux., Appellees. |
| Court | Texas Court of Appeals |
Kenneth Oden, Jr., Perkins, Oden, Warburton, McNeill & Adami, Alice, for appellant.
Thomas M. Schumacher, Hector Gonzalez Law Offices, Corpus Christi, for appellees.
Before BUTTS, CANTU and DIAL, JJ.
This is a venue case. Plaintiffs, Jose and Irma Nunez, sued Time Housing Corporation and other defendants for personal injuries and for violations of the Texas Deceptive Trade Practices Act, TEX.BUS. & COM.CODE ANN. § 17.41 et seq. (Vernon Supp.1982-1983), 1 and the Texas Consumer Credit Code, TEX.REV.CIV.STAT.ANN. art. 5069-2.01 et seq. (Vernon 1971 and Vernon Supp.1982-1983). Only Time Housing brings this appeal. Plaintiffs instituted suit in Jim Wells County. Defendant Time Housing filed its plea of privilege requesting the case be transferred to Harris County, the corporation's place of residence. Plaintiffs asserted in their controverting affidavit that venue was proper under section 17.56 of the DTPA. The trial court found venue to be proper in the county of suit and overruled the plea of privilege. We affirm.
Plaintiffs and defendant entered into a contract, whereby plaintiffs purchased a mobile home on credit terms in Nueces County, and defendant delivered the mobile home to plaintiffs' lot in Alice. Subsequent to filing the suit, the purchasers were divorced, and the wife was awarded the mobile home as part of the divorce settlement. A chronology of pertinent events follows:
August 18, 1977--plaintiffs purchase a mobile home from defendant in Corpus Christi.
August 25, 1977 (on or about)--defendant delivers the mobile home to plaintiffs in Alice.
May 28, 1980--plaintiffs file their original petition.
June 27, 1980--defendant files its plea of privilege.
July 11, 1980--plaintiffs file a controverting affidavit.
October 8, 1982--plaintiffs file their first amended original petition.
Defendant raises three points of error involving a single contention: venue is improper in Jim Wells County. We have before this court only plaintiffs' controverting affidavit which seeks to maintain venue under section 17.56 of the DTPA. Our transcript does not contain plaintiffs' first amended controverting affidavit which purportedly also argues the propriety of venue under subdivision 23 of article 1995. Since that contention is not before the court, we will not consider point of error three which addresses that venue statute. TEX.REV.CIV.STAT.ANN. art. 1995, § 23 (Vernon 1964).
This cause of action arose in August, 1977, but the suit was not filed until May 28, 1980. See § 17.56A, which provides for two year limitation now. While the general rule is that venue will be governed by the law in effect at the time of the institution of the suit, e.g., Big Rock Properties, Inc. v. King, 613 S.W.2d 804, 805 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ), some Texas courts have applied the 1977 2 venue provision when the cause of action accrued prior to the enactment of the 1979 3 provision. ABC Truck Rental & Leasing Co. v. Southern County Mutual Insurance Co., 662 S.W.2d 132, 135 (Tex.App.--San Antonio 1983, no writ); Ferrara v. Corinth Joint Venture, 611 S.W.2d 669 (Tex.Civ.App.--Eastland 1980, no writ); see generally Curry,The 1979 Amendments to the Deceptive Trace Practices Consumer Protection Act, 32 BAYLOR L.REV. 51, 78-79 (1980); Patton, Case Law Under the Texas Deceptive Trade Practices--Consumer Protection Act, 33 BAYLOR L.REV. 533, 575-76 (1981).
No discussion or dispute occurred at the venue hearing in this case concerning the applicability of either the 1977 or 1979 statute. See e.g., FDI Investment Corp. and C & W Manhattan Associates v. S.S.G. Investments, 663 S.W.2d 135 (Tex.App.--Fort Worth 1983, no writ). Nor does defendant argue this on appeal. We believe it is apparent that the court and parties proceeded under the 1977 statutes, and that is not a question on appeal. Nor does defendant argue that no cause of action was pled under the Deceptive Trade Practices Act or that plaintiffs failed to plead specifically section 17.56 in their controverting plea. See Hodges v. Casey, 646 S.W.2d 175, 177 (Tex.1983). Thus, the only question before this Court is whether the required proof of the venue fact was made. There are two requirements under the 1977 and the 1979 venue statutes. The first requirement under both statutes is that plaintiffs must allege a cause of action under section 17.50 of the DTPA. ABC Truck Rental & Leasing, supra at 135; Ferrara v. Corinth, supra at 670; T.P. Walsh Co. v. Manning, 609 S.W.2d 636, 638 (Tex.Civ.App.--Tyler 1980, no writ); Pettit v. England, 583 S.W.2d 875, 877 (Tex.Civ.App.--Dallas 1979, no writ).
The second requirement is slightly different in the 1977 and 1979 venue statutes. Whereas under the 1977 statute, plaintiffs must show that defendants had done business in Jim Wells County, the 1979 statute, if it applied here, contains an expanded description of conduct that establishes venue. Any of the following may provide the basis to allow suit to be filed in that county: (1) the defendant's residence, (2) the county in which the defendant's principal place of business is located, (3) the county in which the defendant has a fixed place of business at the time suit is brought, (4) the county in which the alleged act or practice occurred, or (5) the county in which the defendant, or an authorized agent of the defendant, solicited the transaction made the subject of the suit. (Emphasis ours). Curry, supra at 78. 27 P. KENS & S. COCHRAN, TEXAS PRACTICE, Consumer Rights and Remedies § 28 (1983).
In their First Amended Original Petition the plaintiffs allege a cause of action under section 17.50 of the DTPA:
The transaction described above is subject to the provisions of the DTPA, TEX.BUS. & COM.CODE ANN. Section 17.41 et seq. During the course of the transaction, the defendants violated the DTPA in many respects, including but not limited to, the following:
A. The representations, acts and practices of the defendants were false, misleading and deceptive, in violation of Section 17.46(a) of the DTPA.
B. The defendants represented that the goods and services to be provided by them had characteristics, ingredients, uses and benefits that they did not have, in violation of Section 17.46(b)(5) of the DTPA.
C. The defendants represented that the goods and services were of a particular standard, quality or grade when they were of another, in violation of Section 17.46(b)(7) of the DTPA.
D. The defendants represented that the agreement between the parties involved rights, remedies and obligations which it did not have, in violation of Section 17.46(b)(12) of the DTPA.
E. The defendants represented that the agreement between the parties involved rights, remedies and obligations which were prohibited by law, in violation of Section 17.46(b)(12) of the DTPA.
F. The defendants represented that guaranties [sic] or warranties involved rights or remedies which they did not have, in violation of Section 17.46(b)(12) of the DTPA.
G. The defendant failed to disclose information concerning the goods and services which was known to them at the time of the transaction, in violation of Section 17.46(b)(23) of the DTPA.
H. The defendants engaged in unconscionable conduct towards the Plaintiffs, in violation of Section 17.50(a)(3) of the DTPA. (Emphasis ours.)
Plaintiffs also demonstrated the second requirement to establish venue: that defendant "had done business" in Jim Wells County under the 1977 statute. We also believe that Jim Wells County would be "the county in which the alleged act or practice occurred" under the 1979 statute, if it applied in this case. At issue is whether delivery and anchoring of a mobile home in Jim Wells County satisfied the venue fact: "has done business."
The only witness who testified at the plea of privilege hearing was the wife; her testimony is uncontroverted. The transaction made the basis of the complaint commenced with the purchase of the mobile home in Nueces County and continued with its delivery and anchoring in Jim Wells County. Among her complaints against defendant was that her mobile home was not anchored properly; accordingly, the doors would not shut properly; the windows leaked; floors corroded from the leaking windows. On each occasion of the complaints she was told by the defendant the matters would be fixed, but, in fact, defendant never sent anybody to repair or examine the mobile home.
Black's Law Dictionary defines transaction:
Something which has taken place, where a cause of action has arisen. It must therefore consist of an act or agreement, or several acts or agreements having some connection with each other ...
BLACK'S LAW DICTIONARY 1341 (rev. 5th ed. 1979).
The cause of action arose from the transaction of which plaintiffs complained. In Legal Security Life Insurance Co. v. Trevino, 605 S.W.2d 857 (Tex.1980), the Texas Supreme Court held that a single transaction that serves as the basis of the suit is sufficient to sustain venue. See Legal Security Life Insurance Co. v. Trevino, 594 S.W.2d 481 (Tex.Civ.App.--San Antonio), aff'd., 605 S.W.2d 857 (Tex.1980). We hold that, being a necessary part of the sales transaction, the delivery and anchoring of the mobile home is the equivalent of "has done business" under the 1977 venue statute. If this were an action brought under the 1979 statute, it would be an "alleged act or practice" under that venue statute. Accordingly, we find venue to be proper in Jim Wells County and affirm the judgment.
I dissent to the venue disposition made by the majority and would reach a contrary result based upon the following.
Plaintiffs' original petition filed on May 28, 1980, consisted of four paragraphs including prayer for relief. In an oversimplified manner,...
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