WTFO, Inc. v. Braithwaite

• Decision Date: 29 March 1995
• Docket Number: No. 05-94-00639-CV,05-94-00639-CV
• Parties: WTFO, INC., Appellant, v. Garlan BRAITHWAITE, Appellee.
• Court: Texas Court of Appeals

Page 709

899 S.W.2d 709

WTFO, INC., Appellant, v. Garlan BRAITHWAITE, Appellee.

No. 05-94-00639-CV.

Court of Appeals of Texas,

Dallas.

March 29, 1995.

Jeffrey A. Lehmann, Lehmann & Associates, Houston, for appellant.

Ernest E. Figari, Jr., Thomas A. Graves, Michael G. Brown, Figari & Davenport, L.L.P., Dallas, for appellee.

Before LAGARDE, WHITTINGTON and STEWART, ¹ JJ.

OPINION

LAGARDE, Justice.

Appellant WTFO, Inc. appeals a summary judgment granted in favor of appellee Garlan Braithwaite in its suit to collect the deficiencies remaining after nonjudicial foreclosure sales of two pieces of real property resulting from the default on two promissory notes. In two points of error, appellant contends that the trial court erred in transferring venue and in granting summary judgment. We overrule the points and affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In May 1987, appellee, along with Judy Poort and Robert Mayr, executed two promissory notes, each for approximately $96,500. The notes were payable to Forestwood National Bank (Forestwood), as holder, in Dallas County or "at such other place as holder may designate in writing." Each note was secured by a deed of trust covering different real property. An Assignment of Rents and Leases was also executed.

On July 5, 1990, the FDIC, acting as conservator and receiver for Forestwood, sent two demand letters to appellee at a "Hurst Address" to formally notify him of the maturity and default on each note. One of the letters was returned, "Attempted, Not Known." On July 24, 1990, the FDIC sent appellee another letter notifying him that it now had his current address at the "Brookridge Address." Enclosed in that letter were the July 5 demand letters.

On January 3, 1991, the FDIC sent appellee a letter indicating that the real estate securing one of his loans had been sold at public auction on January 1, 1991, for $63,600 and that appellee owed the deficiency on the loan. On July 17, 1991, the FDIC sent him another letter stating that the real estate securing both loans had been foreclosed upon and that he owed the remaining balances of $41,011.47 and $46,940.42. Both pieces of property were later sold by the FDIC to third parties.

On April 21, 1993, appellant notified appellee that it had been assigned the promissory notes ² and that it sought the deficiencies. Two days later, appellant filed suit in Harris County against appellee and Poort seeking the deficiencies.

Appellee filed an answer, a motion to transfer venue, and counterclaims against appellant. Appellee requested a venue hearing; the parties were notified that the hearing was set for August 2, 1993. Appellant requested thirty days to respond and forty-five days' notice of the hearing as required by the Texas Rules of Civil Procedure. TEX.R.CIV.P. 87. The trial court rescheduled the hearing for August 26, 1993. Appellant timely filed a response. On August 23, 1993, appellant received a call that the hearing had been moved to August 24, 1993. Appellant neither objected nor requested a continuance. After a hearing the next day, the trial court severed the action as to appellee and granted his motion to transfer venue to Dallas County.

In January 1994, appellee filed a motion for summary judgment based on three grounds: (1) the failure to provide written notice of the foreclosure sales pursuant to the Deeds of Trust and section 51.002 of the Texas Property Code; ³ (2) lack of evidence to establish the fair market value of the foreclosed property; and (3) appellee's release from personal liability. On March 4, 1994, appellant filed its response to appellee's motion, incorporating by reference the affidavit of Jerald W. Rosen (Rosen affidavit) and numerous exhibits. The Rosen affidavit and the exhibits, however, were not filed until March 7, 1994.

On March 11, 1994, the trial court granted summary judgment. Later that day, appellee nonsuited his counterclaims against appellant, making the summary judgment final.

TRANSFER OF VENUE

In its first point of error, appellant contends that the Harris County trial court reversibly erred in sustaining appellee's motion transferring venue to Dallas County. Appellant argues that (1) it did not receive forty-five days' notice of the hearing, (2) venue was proper in Harris County under a permissive venue statute, and (3) a general appearance by one co-defendant makes venue proper as to all defendants. Appellant also argues that the trial court erred in granting a severance to appellee.

Appellant's point of error is duplicitous because it attacks two distinct and separate rulings of the trial court, namely, venue and severance. TEX.R.APP.P. 74(d); Clancy v. Zale Corp., 705 S.W.2d 820, 823 (Tex.App.--Dallas 1986, writ ref'd n.r.e.). This Court may disregard any point of error that is duplicitous; however, in the interest of justice, we will address each of appellant's arguments.

Burden of Proof

When a motion to transfer venue is filed, the initial burden of proof that venue is maintainable in the county of suit is on the plaintiff. TEX.R.CIV.P. 87(2)(a). If the defendant specifically denies the venue facts, the plaintiff must support his pleadings by prima facie proof of the venue facts. TEX.R.CIV.P. 87(3)(a). If the plaintiff meets that burden, the trial court must maintain the lawsuit in the county in which it was filed unless a mandatory provision applies. TEX.R.CIV.P. 87(3)(c). If the plaintiff fails in his burden, the defendant has the burden of showing that venue is maintainable in the county in which the transfer is sought under either a general, permissive, or mandatory venue rule. See TEX.CIV.PRAC. & REM.CODE ANN. §§ 15.001-.040 (Vernon 1986); TEX.R.CIV.P. 87(2)(a). If the defendant succeeds in that showing, the cause will be transferred to the appropriate county. TEX.R.CIV.P. 87(2)(a).

Standard of Review

As an appellate court, we are obligated to conduct an independent review of the entire record to determine whether venue is proper in the ultimate county of suit. See TEX.CIV.PRAC. & REM.CODE ANN. § 15.064(b) (Vernon 1986); Wilson v. Texas Parks & Wildlife Dept., 886 S.W.2d 259, 261 (Tex.1994); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757-58 (Tex.1993). We view evidence adduced after the issue of venue was decided by the trial court to determine if this evidence "destroys the prima facie proof on which the trial court relied." Ruiz, 868 S.W.2d at 757. If, within the entire record, there is probative evidence to support the trial court's determination, we defer to the trial court's ruling. Wilson, 886 S.W.2d at 262; Ruiz, 868 S.W.2d at 758. If there is no supporting evidence, the judgment must be reversed and the cause remanded to the trial court. Ruiz, 868 S.W.2d at 758. The purpose of reviewing the entire record is to strike a balance between preserving the plaintiff's right to select and maintain suit in a county of proper venue and protecting the defendant against "fraud or inaccuracy at the pleading stage." Wilson, 886 S.W.2d at 262.

Notice of Hearing

Appellant claims that the trial court failed to give the forty-five days' notice required by rule 87(1) of the Texas Rules of Civil Procedure. See TEX.R.CIV.P. 87(1). When the venue hearing was originally scheduled for August 2, 1993, appellant requested the trial court to give it forty-five days' notice. The trial court complied, moving the date to August 26, 1993. Appellant now argues that the court's later moving the date of the hearing two days earlier to August 24 erroneously deprived it of the full forty-five days' notice.

The trial court's order states that appellant lodged the same objections as it filed in its responsive pleadings. These pleadings contained no specific lack of notice objection. The trial court also stated that it was transferring venue over appellant's objection. Because appellant provided no statement of facts from the venue hearing, we are unable to determine appellant's specific objection. See TEX.R.APP.P. 53(a); Flores v. Arrieta, 790 S.W.2d 75, 76 (Tex.App.--San Antonio 1990, writ denied) (appellant must bring forth sufficient record to demonstrate error). A review of the record before us shows that appellant specifically objected to the lack of notice in its motion to vacate, which was filed over two months after the trial court signed the transfer order. Appellant's failure to timely and specifically object to the lack of notice or request a motion for continuance waives error. TEX.R.APP.P. 52(a); Gonzalez v. Nielson, 770 S.W.2d 99, 101 (Tex.App.--Corpus Christi 1989, writ denied). Accordingly, we conclude that there is no evidence in the record that appellant objected or requested a motion for continuance, either after it received notice that the hearing was scheduled for an earlier date or during the hearing. Error is not preserved.

Section 15.035(a)

Appellant argues that it offered prima facie evidence that venue was proper in Harris County pursuant to section 15.035(a) of the Texas Civil Practice and Remedies Code. See TEX.CIV.PRAC. & REM.CODE ANN. § 15.035(a) (Vernon 1986) (permissive venue provision). Appellant claims that the notes provided for payment at the holder's address in Dallas County or "at such other county that holder may designate in writing." Appellant argues that to comply with this language it gave formal written notice in a letter to appellee that the place of payment was changed to Harris County. Appellant claims that this letter is valid venue proof that it comported with the terms of the contract under section 15.035(a).

Prima facie proof is made when the venue facts are properly pleaded and an affidavit and any duly proved attachments to the affidavit fully and specifically setting forth the facts supporting such pleading are filed. TEX.R.CIV.P. 87(3)(a); Kansas City S. Ry. Co. v. Carter, 778 S.W.2d 911, 914-15 (Tex.App.--Texarkana 1989, writ denied). Affidavits shall be made on personal knowledge, shall set...