text:
    UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. T. C. STRICKLIN, Appellee.
    No. 19165.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 9, 1977.
    Rehearing Denied Oct. 6, 1977.
    See also, Tex.Civ.App., 547 S.W.2d 338.

      Larry L. Gollaher, Thompson, Coe, Cousins & Irons, Dallas, for appellant.
    Corbet F. Bryant, Jr., Robert H. Mow, Jr., Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, for appellee.
   AKIN, Justice.

This is a suit on a fire insurance policy by T. C. Stricklin, a third-lien mortgagee, against U.S. Fire Insurance Company. The property damaged was covered on the date of loss by two separate policies similar in terms, and Stricklin has sued each insurance company for the loss in separate actions. Prior to suit, Stricklin foreclosed upon the property and repaired it. The principal question on this appeal is whether the trial court erred in refusing to admit evidence of the second fire insurance policy covering the property and in failing to give effect to the “other insurance” clause contained in the U.S. Fire policy. U.S. Fire also contends that the trial court erred: (1) in overruling its plea in abatement asserting that a necessary party, the first-lien mortgagee, was not a party; (2) in refusing to consolidate this case with Stricklin’s action against the other insurer, Houston General Fire'Insurance Co.; (3) in admitting into evidence a summary of the damages; and (4) in submitting, over objection, improper damage issue instructions.

We reverse and remand because the trial court erred (1) in refusing to give effect to the “other insurance” proration clause, (2) in submitting jury issues with instructions that failed to restrict the jury to values before and after the fire, and (3) in admitting the summary without a showing that the underlying documents were admissible. Finally, we hold that the trial court did not abuse its discretion in refusing to consolidate the two cases.

“Other Insurance” Clause

U.S. Fire argues that the trial court erred in refusing to admit into evidence the Houston General policy and to give effect to the pro rata “other insurance” clause of the U.S. Fire policy by prorating the loss between U.S. Fire and Houston General. In this respect, U.S. Fire asserts that the trial court erred in failing to admit testimony that plaintiff Stricklin had knowledge of the Houston General policy before the fire loss and had sued Houston General for the same loss. Essentially, U.S. Fire is contending that the Houston General policy falls within the “other insurance” provision of the U.S. Fire policy and, therefore, the loss should be prorated between the two companies.

Stricklin, on the other hand, asserts that the Houston General policy is not “other insurance” with respect to him and, consequently, insists upon recovering against U.S. Fire the total amount of his loss and then assigning his rights on the Houston General policy to U.S. Fire. In support of this contention; Stricklin urges that he is named in the U.S. Fire policy as a third-lien mortgagee-payee, but is not named in the Houston General policy. His claim on the Houston General policy is based on his equitable right to the proceeds. In response, U.S. Fire points out that Stricklin’s position is the same under both policies because of an assignment to him of the second-lien mortgagee’s rights under both policies, and, thus, the distinction urged by Stricklin is nonexistent.

We agree with U.S. Fire and hold that the trial court erred in failing to give effect to the “other insurance” clause and in refusing to prorate the loss between the insurers. The policy provides:

This company shall not be liable for a greater proportion of any loss than the amount hereby insured shall bear to the whole insurance covering the property against the peril involved whether collectible or not.

In addition to the above-quoted pro rata liability clause, the policy sued upon also contains an “other insurance” provision which states:

1. Loss by fire or other perils not provided for in 2. below: If at the time of the loss, there is other insurance available to the insured or any other interested party covering such loss or which would have covered such loss except for the existence of this insurance, then the Company shall be liable as follows:
a. If such insurance is Contributing Insurance, defined as any insurance written in the name of the insured, upon the same plan, terms, conditions and provisions as contained in this policy whether collectible or not, the Company shall be liable for no greater proportion of any loss than the limit of liability under this policy bears to the whole amount of insurance covering such property.

Similar language is contained in the Houston General policy. It is settled that pro rata liability insurance clauses are valid. In Traders & General Ins. Co. v. Hicks Rubber Co., 140 Tex. 586, 169 S.W.2d 142, 147 (1943), the court held such a provision to be enforceable, absent a statute to the contrary. The supreme court concluded that an insured was not permitted to recover more than a pro rata amount from each insurer. Employers Casualty Co. v. Transport Co., 444 S.W.2d 606, 609 (Tex.1969); see Liverpool & London & Glove Ins. Co. v. Delta County Farmers’ Ass’n, 56 Tex.Civ.App. 588, 121 S.W. 599 (1909, writ ref’d). The rule is that if two or more insurers contract to pay a portion of a loss, each is liable only to the extent that the amount insured by such insurer bears to the total loss and that none of the insurers has any right of contribution from the other insurers because the contracts are several, rather than joint. Traders & General, 169 S.W.2d at 148. Thus, U.S. Fire would be entitled to contribution from Houston General. Neither do we think U.S. Fire should be required to accept an assignment from Strick-lin, as he urges, and bear the expense of litigation against Houston General when U.S. Fire is only liable for a part of the loss.

Stricklin asserts, however, that this case is controlled by the doctrine enunciated in St. Paul Fire & Marine Ins. Co. v. Crutchfield, 162 Tex. 586, 350 S.W.2d 534, 538 (1961). We cannot agree. In Crutch-field, two policies existed covering the same property. The court held that a mortgagee was not bound by the apportionment clause in the policy and could recover its entire loss, subject to the policy limits, from one insurer. The court did, however, recognize that the second policy would constitute “other insurance” if the mortgagee ratified the second policy. Here, Stricklin has, as a matter of law, ratified the Houston General policy by asserting a claim under that policy and filing suit to recover on that claim. American Surety Co. v. Martinez, 73 S.W.2d 109 (Tex.Civ.App.—El Paso 1934, writ ref’d). Crutchfield is, therefore, not controlling.

Stricklin also contends that the Houston General policy is not “other insurance” with respect to him because article 6.15 of the Texas Insurance Code (Vernon 1963) provides that the interest of a mortgagee under a fire insurance policy shall not be invalidated by any act of the mortgagor and that any provision in the insurance contract to the contrary shall be void. The simple answer is that even if the act of the owner in obtaining the Houston General policy could not make Stricklin subject to the apportionment clause, Stricklin’s own act of ratifying the Houston General policy would make the apportionment clause applicable. Consequently, there is no violation of article 6.15. Accordingly, we hold that Stricklin is bound by the “other insurance” clause and may recover only a pro rata share of his loss from U.S. Fire.

Stricklin argues, however, that it would be prejudicial to him on the damage issues to admit evidence of the second policy before the jury. This may be true; however, upon retrial, the trial court, acting on a proper motion in limine, need not admit before the jury evidence of the second policy since it only pertains to a question of law for the court. U.S. Fire is entitled to have this evidence admitted so that the court can prorate the loss found by the jury. Of course, where the question of ratification is one for the jury, of necessity, evidence of the second policy must be admitted. In any event, the insured can protect himself from any possible jury prejudice by requesting proper instructions from the trial court.

Consolidation

U.S. Fire next argues that the trial court abused its discretion in refusing to consolidate this suit with Stricklin’s suit against Houston General. In this respect, it asserts that because the liability of the two insurers is several, not joint, U.S. Fire could not have, on its own initiative, brought Houston General into this litigation as a third-party defendant. We cannot agree that the trial court’s refusal to consolidate was an abuse of its discretion. Texas Rules of Civil Procedure 174(a), which sets forth the standard for consolidation, provides that: “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all matters in issue in the actions; . . . “[emphasis added]. Thus, rule 174 has been held to be discretionary with the trial court, and only where there is an abuse of that discretion by the trial court will the order be reversed. Kemp v. Harrison, 431 S.W.2d 900, 904 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.); see Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677 (1956). The question of whether the trial court erred in refusing to consolidate the causes may turn on whether Houston General was a necessary party to the suit between Stricklin and U.S. Fire. See Mid-America Pipeline Co. v. Hadwiger, 471 S.W.2d 157, 160 (Tex.Civ.App.—Amarillo 1971, no writ) (ordering consolidation of two eminent domain suits, one against the lessor and the other against the lessee). Since the liability of U.S. Fire and Houston General is several, rather than joint, it follows that Houston General is not a necessary party. However, Houston General would be a proper party, and the trial court could have ordered consolidation. Indeed, since the issues to be tried are identical, consolidation might have been in the interest of judicial economy. We do note, however that at the time the motion to consolidate was denied, there was pending in this court an appeal by Houston General in the senior case from an adverse ruling by the trial court on its plea of privilege. Houston General Lloyds Ins. Co. v. Stricklin, 538 S.W.2d 178 (Tex.Civ.App.—Dallas 1976, writ dism’d). Indeed, one of the arguments made by Stricklin in opposing consolidation was that if this court had reversed the venue ruling and transferred the cause to another county, the order of consolidation would have created additional difficulties. Under these circumstances, we hold that no abuse of discretion is shown.

Crawford’s Testimony

U.S. Fire also contends that the ruling of the trial court excluding Crawford’s testimony was manifestly unfair and inconsistent in that Stricklin’s expert, Be-neke, based his opinion on the same facts and had similar experience to Crawford. We agree. Both were engaged at the time of trial as independent adjusters for insurers and insureds, and both had been previously employed by U.S. Fire as staff adjusters. Stricklin made no objection to Crawford’s qualifications as an expert, but objected to his testimony on the ground that it was based upon hearsay. This objection was sustained. Stricklin contends that this ruling was proper because no objection was lodged against Beneke’s testimony based upon hearsay or lack of qualification and because Crawford’s testimony was based partially upon hearsay. We cannot agree. Every expert’s opinion is, necessarily, in most instances, based in part upon hearsay in that some data obtained from various sources is necessarily hearsay. Specifically, here, Crawford testified to having used “cost guides that are accepted by various area contractors” and telephone conversations with contractors. Although the knowledge obtained in this manner is hearsay, it is one way that an expert on repair costs can keep current on construction costs. This method is perfectly permissible. Since Crawford’s credentials as an expert were unchallenged and since any such expert must in part utilize hearsay as a basis for the opinion, the trial court should have admitted the evidence. The better view is to admit the testimony in such a situation, thus leaving to the jury the weight to be given the opinion rather than excluding it. Once an expert is qualified, his opinion should be admitted no matter how ridiculous it may appear to the trial court. Lewis v. Southmore Savings Ass’n, 480 S.W.2d 180, 186 (Tex.1972); Bryant v. Trinity Universal Ins. Co., 411 S.W.2d 945, 952 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.). Thus, opposing counsel can argue to the jury that no weight should be accorded the opinion. Of course, the trial court should not admit the opinion testimony of a witness not properly qualified as an expert. Here, Crawford’s opinion was also based upon “facts” obtained from his personal observation of the damage and from his personal knowledge of repair costs. We conclude, therefore, that an expert’s opinion is admissible notwithstanding that it may have been based in part on hearsay information.

Although courts have stated generally that the admission of an expert’s testimony rests with the sound discretion of the trial court, this discretion is limited to a determination of whether the witness qualifies as an expert and whether his opinion was based solely on hearsay not generally acceptable within the particular field. Where, as here, both appellant’s and appel-lee’s expert witnesses predicated their respective opinions of reasonable construction and repair costs in part on hearsay conversations with contractors, manuals in the business, and other estimates and when the trial court excludes one and admits the other, the trial court abuses its discretion.

The Summary

U.S. Fire also argues that the trial court improperly admitted a summary of repair expenses. We hold that the record does not establish that the summary was admissible under the test laid down in Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80, 92-95 (Tex.1976). For a summary to be admissible, it must be shown that the underlying records are admissible and voluminous, and they must be made available to the opposing party. Id. The testimony reveals that the underlying records consisted of invoices covering repairs made to the entire unit, not just the damaged portion. Two witnesses, Joe Carter and Thomas Byrum, testified concerning the preparation of the summary. Carter is Stricklin’s accountant, and Byrum supervised the repair work. Their testimony shows that the underlying invoices do not disclose whether the expenditures were made for repairs necessitated by the fire damage or were for general repairs unrelated to the fire. At one point, Byrum did testify that the invoices contained an internal code which showed on which apartments the labor and materials were expended and that the fire damage primarily occurred in the eight units destroyed by the fire. He also testified, however, that there was some fire damage to the other units and that he had assisted Carter in allocating various expenses to the fire damage and that he had attempted to be fair in doing so. Carter testified that there originally were no notations on the invoices which would permit him to segregate repair expenses into fire damage and other categories. He testified that the allocation was based on Byrum’s personal knowledge of where various materials and labor were expended. Apparently, this allocation was not made until well after the repairs were completed. At best, the testimony shows that the invoices were marked with some type of code which allocated repair costs between the fire damage and other repairs. The evidence does not show that this code was placed on the invoices by an employee with personal knowledge of the facts or that such an employee transmitted the information to another employee who made the notations in the regular course of business, nor does it show that the entry was made at or near the time that the repairs were made. Thus, the evidence does not show that the underlying records were admissible. Hanson Southwest Corp. v. Dal-Mac Construction Co., 554 S.W.2d 712 (Tex.Civ.App.—Dallas 1977, supplemental opinion May 27, 1977, writ filed).

Damage Issues

In view of our decision to remand on other grounds, we address U.S. Fire’s complaint concerning the instructions to the damage issues. In this respect, U.S. Fire contends that the trial court erred in its instructions accompanying special issues one and two. Essentially, U.S. Fire asserts that the issues were erroneous in that they permitted the jury to include other factors in addition to actual cash value.

The jury was asked:

SPECIAL ISSUE NUMBER 1.
What do you find from a preponderance of the evidence to be the actual cash value of the portion of the building located at 329 N. Gilpin Street, Dallas, Texas, that was destroyed or damaged by fire on September 24, 1974?
Answer in dollars, if any, and cents, if any.
Answer: $_
In determining the “actual cash value” of the portion of the building that was so destroyed or damaged, you are instructed that you may consider the reasonable cost of repairing and replacing the destroyed and damaged areas, as evidence of such value. You may also consider such factors as a reasonable amount of depreciation, the building’s age, the gainful use to which the building was being put, and the difference in the market value of the building before the loss as contrasted with the market value of the building after the loss. [Emphasis added]

Special issue number two was similar, but pertained to personalty. We agree with U.S. Fire. The policy provides:

Subject to the provisions and stipulations of this policy, the following bases for valuation of property are established:
B. Improvements and Betterments:
1. If repaired or replaced at the expense of the insured within a reasonable time after loss, the actual cash value of the damaged or destroyed improvements and betterments.
E. ’ All other property at actual cash value. [Emphasis added]

Where the contract provides that the measure of damages is the actual cash value of the damaged or destroyed property, it is equivalent to a market value measure of damages. Hanover Fire Ins. Co. v. Bock Jewelry Co., 435 S.W.2d 909, 919 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.). Where the market value is the proper measure of damages, it should be submitted to the jury on the basis of the damaged property’s market value immediately before and after the loss. Calhoun v. United States Fire Ins. Co., 489 S.W.2d 359, 361 (Tex.Civ.App.—Amarillo 1972, writ ref’d n. r. e.); Lerman v. Implement Dealers Mutual Ins. Co., 382 S.W.2d 285, 287 (Tex.Civ.App.—Houston 1964, writ ref’d n. r. e.). As this court stated in Aetna Casualty & Surety Co. v. Clark, 427 S.W.2d 649, 655 (Tex.Civ.App.—Dallas, 1968, no writ):

The measure of damages under an insurance contract insuring a dwelling, when the loss is not total, is the difference between the value of the property immediately before and immediately after the loss and damage, but within the amount of the policy.

Here the trial court submitted the issue substantially in the language of the policy, “the actual cash value of the building . . . destroyed or damaged ..” This language by itself might have been confusing, since a destroyed building would have no market value, and the value of a damaged building would not be a proper measure of the loss. The court apparently recognized, therefore, that an explanatory instruction was needed. The instruction as given, however, was misleading in that it included the ultimate measure of difference in market value as only one factor which the jury could “also consider.” Also included in the instructions were other factors such as cost of repairs. Thus, the jury was not bound to follow the contractual measure of damages, but was free to choose among the factors set forth and was not compelled to make a determination of the before and after difference in actual cash values. The reasonable and necessary costs of repairs may be taken into consideration in determining the market value before and after, but may not be the sole basis of market value. Millers Mutual Fire Ins. Co. v. Eggleston, 357 S.W.2d 766, 767 (Tex.Civ.App.—Port Worth 1962, no writ). The vice in the instructions given here is that it permitted the jury to fix the actual cash value of the damaged building solely upon the cost of repairs, not limited by the difference in market value. Thus, upon retrial, the trial court should give instructions not inconsistent with this opinion. Of course, under Tex.R.Civ.P. 277, the trial court need not submit two separate issues on value before and after; provided, however, that the instructions submit the correct measure of damages.

U.S. Fire also contends that the trial court erred in overruling its plea in abatement because a necessary party, the first mortgagee, was not a party. Since Strick-lin subsequently obtained an assignment of the first mortgagee’s interest, this point will be moot on remand, and we need not pass on this question.

Reversed and remanded.

      . The order denying consolidation was made by the judge of the 14th District Court since the local rules require the motion to be filed in the senior case, which was the case against Houston General pending in the 14th court.

      . Our statement in Mew v. J & C Galleries, Inc., 554 S.W.2d 249 (Tex.Civ.App.—Dallas, 1977, no writ filed), that the two were not equivalent under the holding in Crisp v. Security Nat’l Ins. Co., 369 S.W.2d 326 (Tex.1963), was predicated upon our decision to treat actual cash value and reasonable value of the loss to the insured as equivalent for the purpose of the opinion in Mew, since the parties apparently made no distinction. We are now faced with the necessity of'distinguishing between the two terms. Actual cash value is equivalent to market value, but reasonable value to the insured is not equivalent to the first two terms. The contract provision in the U.S. Fire policy is distinguishable from the provision construed in Crisp in that it clearly provides a contractual measure of damages, rather than a limitation on damages. Thus, the reasonable value of the loss to the insured is not an applicable measure of damages as it was in Crisp.


source: Caselaw Access Project

author: AKIN, Justice.

license: Public Domain

text:
    Paul H. FRANKLIN, Appellant, v. Dr. C. W. RAINEY et al., Appellees.
    No. 19241.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 13, 1977.

      Richard E. Harrison, Nall, Kyle, Harrison & Nall, Sherman, for appellant.
    Robert G. Bush, III, Gary J. Campbell, Kennedy, Minshew, Evans, Campbell, Cain & Bamburg, Sherman, for appellees.
   AKIN, Justice.

This is an appeal from a judgment sustaining defendants’ motion for summary judgment. Summary judgment was granted on the ground that the issues presented by this action were previously adjudicated in a suit brought in 1953 by Donna Rainey against Paul Franklin. Thus, the principal question presented is whether the judgment rendered in 1953 is res judicata or an estop-pel by judgment as to the present controversy. We hold that it is neither and reverse and remand.

The material facts and issues in the two suits are as follows. In the prior action, Donna Rainey, plaintiff, brought an action against Paul Franklin, the adjoining landowner, alleging he diverted the natural water course when he constructed a levee and a ditch on the southwest part of his land causing surface and storm waters to flow onto her property. In that suit Rainey further alleged she was forced to build a levee to protect her property from the surface waters unnaturally diverted onto her property. As a result of this diversion she allegedly suffered injury when the land became marshy, partially flooded, and unfit for cultivation. The case was tried to a jury which found among other things that there had been a natural water course which Franklin had diverted by artificial means and that the diversion was not the proximate cause of Rainey’s damage. Accordingly, a take-nothing judgment was rendered on September 23, 1953.

In the present case, Paul Franklin sued Dr. C. W. Rainey, Donna Rainey’s successor in title, and his tenant, Ivan Reynolds, for damages and for an injunction, alleging that the ditch and levee which was constructed by Rainey’s predecessor in title, had fallen into such disrepair over the years that it was of little or no effectiveness. Franklin further alleged that a natural water course existed across his land and Rainey’s land and that when the ditch and levee are properly maintained, they divert the natural flow of water, but because of their disrepair, they no longer do so. Defendants are in the process of restoring the ditch and levee, and plaintiff asserts that if the defendants are allowed to do so, the natural flow of the water will be diverted onto his land, thereby damaging his land. Both defendants filed motions for summary judgment on the basis that the judgment rendered in the case of Donna Rainey against Paul Franklin was res judicata and collateral estoppel on the issues that at one time there had been a natural flow of surface waters and that Franklin or his predecessors in title by artificial means diverted the natural flow onto Donna Rainey’s property. Summary judgment was granted on these grounds.

Essentially, Rainey contends that since Franklin had previously interfered with the natural drainage and had diverted it across the Rainey land, as the jury found in the previous litigation, Franklin now has no right to claim damages or to an injunction for Rainey’s diversion of water across Franklin’s lands. We cannot agree that the prior judgment constitutes res judicata or that the issues determined in that suit collaterally estopped plaintiff here.

The doctrine of res judicata applies only when the following elements exist: identity of parties, issues, subject matter, relief sought and cause of action. Oak Lawn Preservation Society v. Board of Managers of Dallas County Hospital District, 539 S.W.2d 167, 169 (Tex.Civ.App.—Dallas 1976, no writ); Lozano v. Patrician Movement, 483 S.W.2d 369, 371 (Tex.Civ.App.—San Antonio 1972, writ ref’d n. r. e.); Coulson v. City of San Angelo, 286 S.W.2d 202, 204 (Tex.Civ.App.—Austin 1956, writ ref’d n. r.e.). Res judicata will operate as a bar only to matters raised or that could have been raised in previous litigation, Abbott Laboratories v. Gravis, 470 S.W.2d 639, 642 (Tex.1971); but as to matters that arise subsequently, the prior judgment will not be res judicata. Fort Worth Stockyards Co. v. Brown, 161 S.W.2d 549 (Tex.Civ.App.—Fort Worth 1942, no writ). As Justice Calvert said in Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943, 947 (1958): “The judgment is res adjudicata only of present and not of future conditions.” Here, during the more than twenty years that have elapsed since the judgment in the prior action, the ditch has been obstructed through neglect, and the levee has deteriorated so as not to operate effectively, thus changing again the flow of surface water and creating new conditions. Because the flow of the water has substantially changed since that judgment was rendered, we hold that there is a lack of subject matter identity for the prior judgment to be res judicata of this suit. Although there may be similarity of subject matter insofar as both suits concerned the alleged divergence of the natural flow of surface waters between adjacent landowners, it does not follow that the prior judgment is res judicata to the present case because of facts occurring in the intervening years which may alter the rights of the parties.

Neither is the doctrine of collateral estoppel applicable. That doctrine is properly asserted where the present cause of action is different from a prior suit between the same parties, but where one or more of the issues presented for litigation in the second suit had been previously litigated and determined. Kirby Lumber Corp. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387, 388 (1946) (per Alexander, C. J.); See 2 McDonald, Tex.Civ.Practice, § 7:43 at 274 (1970).

Even though the jury found in the previous case that Franklin had diverted the natural flow of the surface water, the previous judgment does not establish that such diversion was permanent or that it was taking place at the time the present litigation began. Consequently, that finding in the previous litigation does not bar Franklin’s present actions for damages and for injunctive relief resulting from Rainey’s diversion of surface water across Franklin’s land. Thus, Franklin is not estopped by the issues determined in the prior suit. As the supreme court stated in City of Lubbock v. Stubbs, 160 Tex. 111, 327 S.W.2d 411, 414 (1959):

Estoppel by judgment extends only to facts in issue as they existed at the time the judgment was rendered, and does not prevent a re-examination of the same question between the same parties, where, in the interval, the facts have changed, or new facts have occurred which may alter the legal rights or relations of the parties. See Fort Worth Stockyards Co. v. Brown, Tex.Civ.App., 161 S.W.2d 549. [Emphasis added]

Reversed and remanded.

      . Although appellant asserts that the trial court erred in predicating its ruling on res judicata, rather than collateral estoppel, the result is the same here. The confusion that may exist has been created by courts using the terms estop-pel by judgment and collateral estoppel as synonymous with the term res judicata.


author: ROBERTSON, Justice.

text:
    Jacques BERGERAC, Appellant, v. Dorothy MALONEY, Appellee.
    No. 19150.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 14, 1977.
    Rehearing Denied Oct. 6, 1977.
    Morton D. Newman, Dallas, for appellant.
    William B. Pasley, Dallas, for appellee.
   ROBERTSON, Justice.

Jacques Bergerac appeals from an order rendered by a domestic relations court which increased the amount of his child support obligation. The primary question in this case is whether there is sufficient evidence to support the trial court’s finding of a material and substantial change of circumstances between a prior order and the trial date. Since we hold that the evidence is insufficient to support this finding, we reverse and remand.

The parties to this case were divorced in 1965 in California. Later, on October 20, 1968, a California court ordered that child support for the two children be set at $150 per month for each child. In the present case, the trial court found as a fact that the children are now approximately eight years older and that the economic needs of each child have materially and substantially increased since the entry of the 1968 order. The court then increased the monthly support payments to $350 per child.

We do not find sufficient evidence to support the trial court’s finding of a material and substantial change in circumstances. Although we recognize that increased age may be a factor in determining a change of circumstances in child support cases, Lambert v. Lambert, 545 S.W.2d 542, 543, 545 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ); Jackman v. Jackman, 533 S.W.2d 361, 364 (Tex.Civ.App.—San Antonio 1975, no writ), this isolated factor will not support a modification of the support order unless the record contains sufficient evidence from which a comparison can be made between the support needs at the time of the prior order and the current needs of the children. A prior support order can be modified only “if the circumstances of the child or a person affected by the order or portion of the decree to be modified have materially and substantially changed since the entry of the order or decree; ...” (Emphasis added). Tex.Family Code Ann. § 14.08(c)(2) (Vernon Supp.1976).

The record reflects that the mother’s most recent analysis of monthly expenditures attributes $2,608.25 to the children; however, the only testimony regarding their needs relative to the prior order is that in 1968 the combined monthly expenses of mother and children were $3,783. There is no testimony as to how much of this $3,783 was attributable to the children, and, without such evidence, no meaningful comparison can be made to justify an increase in the child support obligation or the amount of such an increase. Consequently, we hold that the trial court abused its discretion in ordering increased child support. In the interest of justice, we are remanding this case to the trial court so that the facts may be further developed. Tex.R.Civ.P. 434; McCart v. Cain, 416 S.W.2d 463 (Tex.Civ.App.—Fort Worth 1967, writ ref’d n. r. e.); Burris Mills, Inc. v. Hein, 399 S.W.2d 950 (Tex.Civ.App.—Houston 1966, writ ref’d n. r. e.).

Reversed and remanded.

      . That decree is not before us, and the record is silent regarding any support order contained therein.


text:
    Franklin BELKNAP, Appellant, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
    No. 19255.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 14, 1977.

      Robert P. Woodruff, Woodruff & Ellis, Dallas, for appellant.
    Catherine A. Gerhauser, Burford, Ryburn & Ford, Dallas, for appellee.
   ROBERTSON, Justice.

This is an appeal from a summary judgment for an insurance carrier in a workman’s compensation proceeding. Texas Employers’ Insurance Association sued to set aside an award of the Industrial Accident Board in favor of Franklin Belknap. Belknap answered and filed a cross-action for workman’s compensation based upon repetitious trauma. The insurance company moved for summary judgment, contending that Belknap failed to give timely notice of injury. The trial court granted the motion and denied all relief claimed by Belknap. We reverse and remand the case for trial.

Section 4a of article 8307, Texas Revised Civil Statutes Annotated (Vernon 1967), provides:

Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after the happening of an injury or the first distinct manifestation of an occupational disease, . . . . [Emphasis added]

Belknap contends that his employer had knowledge of his injury and that the affidavits filed in support of the motion for summary judgment do not conclusively negate the existence of that knowledge. We agree. When an employer actually knows of an employee’s injury, formal notice is not required, Miller v. Texas Employers’ Ins. Ass’n, 488 S.W.2d 489, 492 (Tex.Civ.App.—Beaumont 1972, writ ref’d n. r. e.), and knowledge of the injury by a foreman or other supervisory employee is the equivalent of knowledge by the employer. Twin City Fire Ins. Co. v. Gibson, 488 S.W.2d 565, 573 (Tex.Civ.App.—Amarillo 1972, writ ref’d n. r. e.). Accordingly, in order to support its summary judgment, the insurance company must have conclusively demonstrated that none of the employer’s supervisory personnel had knowledge of Belk-nap’s injury. This burden has not been met.

The insurance company’s motion for summary judgment was supported by affidavits of Belknap’s employer, his supervisor, and claims manager. These affidavits state that Belknap did not give them any notice of his injury. These statements do not exclude the possibility that the employer had other supervisory personnel with knowledge of Belknap’s injury. Although the employer, John H. Fulton, stated in his affidavit that none of his supervisory employees had knowledge of the injury, this is merely a conclusion based upon hearsay and is inadequate to establish lack of knowledge upon the part of all supervisory employees. Evidence amounting to nothing more than opinions and conclusions is not sufficient to establish a contention as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 829 (Tex.1970); Booher v. Criswell, 531 S.W.2d 844, 845 (Tex.Civ.App.—Dallas 1975, no writ). We recognize the difficulty of establishing the negative of an issue by summary-judgment proof, but it is not impossible to meet that burden. The affidavits here indicate that more specific information is available concerning the identity of supervisory employees who might have occasion to be in contact with the plaintiff in the course of their duties. Since the insurance company has not met its burden to establish lack of knowledge as a matter of law, we conclude that rendition of summary judgment was improper.

The judgment of the trial court is reversed, and the cause is remanded for further proceedings.


author: GUITTARD, Chief Justice.

text:
    George Leopold GUTHRIE, Appellant, v. Valerie Mae (Guthrie) RAY, Appellee.
    No. 19258.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 15, 1977.
    Herbert H. Landau, Dallas, for appellant.
    Grier H. Raggio, Raggio & Raggio, Inc., Dallas, for appellee.
   GUITTARD, Chief Justice.

This suit was brought by the father of a five-year-old boy to modify a pre-1974 divorce decree awarding custody to the mother. At the close of the father’s evidence, the court granted the mother’s motion for judgment denying the modification. We hold that this ruling was error because the court did not recognize and decide the fact issue of material and substantial change in the circumstances of the child. Such an issue, we hold, was raised by evidence that the child had resided continuously with the father for the three years following the divorce with the consent of the mother and that a change in this situation would have been distressing to the child. Accordingly, we reverse the judgment and remand the cause for a new trial.

Before discussing the merits, we must consider several procedural questions. In the first place, the mother contends that the conservatorship issue was not properly raised in the trial court because the divorce was granted before January 1, 1974, the effective date of the Family Code, and the father’s first pleading in the present proceeding was made as a motion in the original divorce proceeding rather than as a petition in a new suit as contemplated by the Code. The applicable provision of the Code is section 4(b) of the transitional provisions, as follows:

(b) Any action or suit commenced after January 1,1974, that has as its object the modification of an order, judgment, or decree entered prior to January 1, 1974, but which under this Act would be a suit affecting the parent-child relationship, is governed by the provisions of this Act, and shall be treated as the commencement of a suit affecting the parent-child relationship in which no court has continuing exclusive jurisdiction. Acts 1973, ch. 543, § 4(b), at 1459.

The mother insists that the present proceeding cannot be treated as a new suit because she was not served with citation as required by section 11.09, no social study had been completed, as provided by section 11.12, and the petition did not contain all the allegations for a suit affecting the parent-child relationship as required by section 11.08.

We conclude that none of these contentions are tenable because section 4(b), above quoted, requires that this proceeding be treated as an independent suit, regardless of whether the usual prerequisites of a suit affecting the parent-child relationship have been satisfied. See Curtis v. Gibbs, 511 S.W.2d 263, 268 (Tex.1974). No problem arises here concerning exclusive jurisdiction or venue in the court of some other county, since all the parties still reside in Dallas County, where they resided at the time of the divorce. If there is any question concerning sufficiency of the pleading, service of process, or availability of the social study report, these questions may be raised by exceptions, motion to quash service, motion to postpone the hearing, or in some other appropriate manner. This proceeding must nevertheless be “treated as the commencement of a suit affecting the parent-child relationship,” under section 4(b), since the previous order was issued before 1974. Consequently, the trial court had jurisdiction to decide the conservatorship issue.

The case is further complicated procedurally by an application for writ of ha-beas corpus filed by the mother. We conclude that this application does not affect the father’s suit to modify the previous conservatorship order. The application for habeas corpus was filed as a separate action in the same court after the father’s petition to modify had already been filed. In answer to the application for writ of habeas corpus, the father pleaded grounds for modification of the conservatorship. The judge signed an order consolidating the two proceedings, but he heard them separately. On hearing the application for habeas corpus, he granted the writ and directed the father to surrender possession of the child to the mother. The father complied with this order, but proceeded with his petition for modification of conservatorship, which was heard several weeks later.

We agree with the mother’s contention that under section 14.10(c), the grounds alleged for modification of the conservator-ship did not constitute a defense to the application for writ of habeas corpus, since they raised no “serious immediate question concerning the welfare of the child.” McElreath v. Stewart, 545 S.W.2d 955, 958 (Tex.1977); Standley v. Stewart, 539 S.W.2d 882, 883 (Tex.1976). We also agree with the mother’s argument that the residence of the child in the state for twelve months can have no effect on the application for habeas corpus because the twelvemonth provision in section 14.10(b)(2) applies only to an application to enforce a “previous order . . . granted by a court of another state or nation.”

Nevertheless, we conclude that the habe-as corpus proceeding has no bearing on the present appeal. The order granting the writ of habeas corpus was issued before the hearing on the petition to modify conserva-torship, and.no complaint of that order is made here. We regard the later order denying the modification of conservatorship, from which the present appeal is taken, as having been made in the original action to modify. After the two proceedings were consolidated, the father filed a two-part amended pleading in the consolidated proceeding. The first part was styled “First Amended Answer to Writ of Habeas Corpus,” and the second was styled “Motion to Modify in Suit Affecting the Parent-Child Relationship.” We regard this motion to modify as an amendment of the original petition in the proceeding to modify conser-vatorship. Consequently, after the writ of habeas corpus was granted, the earlier proceeding to modify conservatorship remained pending in the trial court as a separate and independent suit, and the trial court properly heard evidence on the conservatorship issue.

Although the conservatorship issue was thus properly presented to the trial court, the record indicates that the judge did not recognize it and did not exercise his fact-finding function in deciding it. The only evidence before the court was that presented by the father. After the close of the evidence, the mother’s counsel made an oral motion for judgment of dismissal on the ground that the father had shown no substantial change of circumstances since the date of the divorce. The court sustained this motion and denied the modification.

Under these circumstances, the case cannot be regarded as one in which the trial court found the facts in favor of the mother. The case falls, rather, within the rule that in a trial without a jury, granting a defendant’s motion for judgment at the close of the plaintiff’s evidence is equivalent to granting a motion for instructed verdict in a jury case, so that the appellate court must accept the plaintiff’s evidence as true and must reverse and remand if the record contains any evidence that would support a judgment favorable to the plaintiff. Allen v. Nesmith, 525 S.W.2d 943, 946 (Tex.Civ.App.—Houston [1st Dist.]), writ ref’d n. r. e. per curiam, 531 S.W.2d 330 (Tex.1975); Burkhardt v. Harris, 200 S.W.2d 445, 447 (Tex.Civ.App.—Austin 1947, no writ); Lorino v. Crawford Packing Co., 169 S.W.2d 235, 240 (Tex.Civ.App.—Galveston 1943), aff’d, 142 Tex. 51, 175 S.W.2d 410 (1943). Such a motion is said to have the same effect as a common-law demurrer to the evidence, which raises the question of whether plaintiff’s evidence, if taken as true, fails to establish grounds for the relief sought. Donaldson v. Oak Park Cemetery, Inc., 110 S.W.2d 119, 121 (Tex.Civ.App.—Galveston 1937, no writ).

Perhaps a trial judge should have power, when all of the plaintiff’s evidence has been presented, to find the facts against the plaintiff without hearing evidence from the defendant. Conceivably he may do so if the record is clear that his decision was made on that basis. Where, however, the motion for judgment raises only the contention, as in a motion for instructed verdict, that the plaintiff’s evidence is insufficient to raise a fact issue, the court’s fact-finding function is not invoked. Whether the evidence is sufficient to raise a fact issue is quite a different question than whether the evidence preponderates one way or the other. Sufficiency of the evidence to raise a fact issue turns on the legal effect of evidence assumed to be true rather than on the persuasiveness of evidence to the fact finder. Consequently, when such a motion has been granted, the appellate court cannot properly presume any fact finding in support of the judgment.

In the present case the mother’s motion for judgment and the remarks of the judge in sustaining it indicate that his decision was to the effect that the evidence presented by the father did not raise a fact issue of material and substantial change of circumstances that would support a modification of conservatorship. Accordingly, under the above authorities, we have examined the evidence to determine whether it raised such an issue. That examination has convinced us that such an issue was raised and that the evidence would have supported a modification of conservatorship under section 14.08(c)(1). The father testified that at the time of the divorce the mother, though awarded custody, had voluntarily permitted the child to stay with him, and that she had made no effort to obtain possession until after the present proceeding was filed. During the intervening three years, the father had taken care of almost all the child’s needs and the mother had only visited from time to time. Meanwhile, both parties had remarried. The father’s wife testified that she loved the child and had taken care of him as if he were her own. She also testified that her daughter by a previous marriage was a good companion to the child and that the two children loved each other. The father also presented the testimony of a child psychiatrist, who testified that she had visited with the child several times and had interviewed both the mother and the father. Although she found no fault with either set of parents, she expressed the opinion that since the child had never been separated from his father, the father had become the most significant person in his life and that separation would be distressing to the child. Accordingly, she advised that the child remain with the father.

The mother seeks to uphold the judgment on the ground that the father failed to show any material change in the mother’s circumstances, and she argues that the evidence shows that her circumstances were, in fact, more favorable than at the time of the divorce, since she had remarried and was in better health. This argument ignores changes in the circumstances of the child, an alternative ground in section 14.08(c)(1) for modification of an order designating a managing conservator. The evidence would have justified a finding that the child’s circumstances were different after residence with the father for a period of three years and would have supported a conclusion by the trial court that the child’s consequent close association with the father, stepmother, stepsister, and all the surrounding circumstances of the father’s home, were material and substantial changes in the child’s circumstances within section 14.-08(c)(1). We hold that the court erred in failing to recognize and decide this fact issue. Consequently, we reverse and remand the case for a new trial.

This decision should not be understood to mean that the evidence would not have supported an exercise of the trial court’s discretion to deny the modification of con-servatorship if the record were clear that the judge had so exercised his discretion after due consideration of the evidence. We express no opinion on that question.

Reversed and remanded.

      . All references to section numbers unless otherwise specified are to Tex.Family Code Ann. (Vernon 1975) or to Tex.Family Code Ann. (Vernon Supp.1977), if applicable.


text:
    Ex parte Ronald F. JABARA.
    No. 19328.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 16, 1977.
    Rehearing Denied Oct. 20, 1977.

      Jay S. Fichtner, Berman, Fichtner & Mitchell, Dallas, for appellant.
    Charles H. Robertson, Johannes, Robertson & Wilkinson, Dallas, for appellee.
   AKIN, Justice.

This original writ of habeas corpus arises from a dispute between Ronald F. Jabara, relator, and his wife, Mary C. Jabara concerning possession of two of their three children. The Honorable Pat McClung, Judge of the Juvenile Court No. 2 of Dallas County held relator in contempt for his failure to produce the children in court in connection with a writ of habeas corpus filed by Mrs. Jabara seeking possession of two of their children and ordered him confined in jail for seventy-two hours and until he complied by producing the children in court. The court overruled relator’s motion to quash predicated upon a prior order of a Texas domestic relations court appointing relator temporary managing conservator. After his commitment to custody, relator applied to this court for a writ of habeas corpus. We granted bail pending this hearing. The sole ground asserted by relator was that the juvenile court lacked jurisdiction because of a divorce action pending in the domestic relations court and an ex parte temporary custody order granting custody to relator. We grant the writ and discharge relator because we hold that the juvenile court had no jurisdiction since the domestic relations court had acquired dominant jurisdiction before the application for writ of habeas corpus was filed in the juvenile court. It follows, therefore, that the juvenile court’s order holding relator in contempt is void.

The litigation began when Mary C. Ja-bara, a resident of Virginia, filed for divorce in that state. In that suit, she sought custody of her two minor children who were then living with her in Virginia. Subsequently, however, relator, a Texas resident and father of the two children, removed the children to Texas. He then filed for divorce in this state and sought managing conservatorship of the children. On May 26, 1977, the domestic relations court of Fairfax County, Virginia, entered an order granting temporary custody of the children to Mary Jabara, and on the same day the domestic relations court of Dallas County issued a decree which appointed relator temporary managing conservator. The following day, May 27,1977, Mary Jabara filed an application for writ of habeas corpus in the juvenile court of Dallas County, by which she urged that the children be immediately brought before the court and returned to her custody by virtue of the temporary order of the Virginia court. Relator failed to produce the children in court in accordance with a show-cause order and specifically refused to do so when orally ordered by the court to do so. Judge McClung then held Mr. Jabara in contempt. On June 1, Judge McClung ordered the children returned to Mrs. Jabara.

The primary question presented is whether the juvenile court lacked jurisdiction to entertain the habeas proceeding initiated in that court due to the pendency of the action in the Texas domestic relations court. If the juvenile court had jurisdiction to entertain the proceeding, then it had the power to order the children produced in court and to punish by contempt a failure to comply with that order. Before that issue is addressed, however, we must first examine the scope of our own jurisdiction and determine whether we have jurisdiction over a habeas corpus action arising from the juvenile court’s order in this case.

Our Jurisdiction

The habeas corpus jurisdiction of the courts of civil appeals is set forth in Tex.Rev.Civ.Stat.Ann. art. 1824a (Vernon Supp.1976). That article authorizes our issuance of writs of habeas corpus “whenever it appears that [the] restraint of liberty is by virtue of any order, process, or commitment issued by any court or judge . in a divorce case, wife or child support case, or child custody case. . . . ” (emphasis added) Mrs. Jabara urges that the habeas corpus action she filed in the juvenile court was not a divorce, child support, or child custody case; rather, she asserts that the action merely concerned enforcement of legal rights established by the prior Virginia court order and, therefore, this writ does not fall within the ambit of article 1824a. We cannot agree. In a writ of habeas corpus proceeding in the trial court, the right to custody ordinarily may not be litigated; the sole question is the enforcement of the last valid custody order. Lamphere v. Chrisman, Tex., 554 S.W.2d 935 (1977); Standley v. Stewart, 539 S.W.2d 882, 883 (Tex.1976); see Tex.Family Code Ann. § 14.10 (Vernon 1975). This rule does not, however, preclude classification of the ha-beas corpus proceeding as a “child custody” case under article 1824a. In this case, the application for writ of habeas corpus was filed to regain physical possession of the children and thus concerned “custody” in that term’s most basic sense. The fact that the action concerned enforcement of custodial rights, rather than their determination, does not alter the essential custodial nature of the proceedings. Since we conclude that this is a custody case under article 1824a, we have jurisdiction of this application.

Jurisdiction of the Juvenile Court

We are next confronted with the question of whether the Texas domestic relations court acquired exclusive jurisdiction under Tex.Family Code Ann. § 11.05 (Vernon 1975). For purposes of this discussion, we will assume that the Texas domestic relations court properly acquired jurisdiction of the subject matter, although this point is contested by Mrs. Jabara. Section 11.05(a) provides:

Except as provided in Subsections (b) and (c) of this section, when a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing jurisdiction of all matters provided for under this subtitle in connection with the child, and no other court has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfer as provided in Section 11.06 of this code.

Section 11.01(5) defines a suit affecting the parent-child relationship as “a suit brought under this subtitle in which the appointment of a managing conservator or a pos-sessory conservator, access to or support of a child, or establishment or termination of the parent-child relationship is sought.” (emphasis added) Thus, relator argues that a habeas proceeding comes within the definition set out in 11.01(5), because it is a suit in which access to a child is sought. Admittedly, the habeas proceeding seeks to restore a party’s access to the child in the sense that it seeks to retrieve children illegally restrained by another. However, the term as used in section 11.01(5) is limited to a suit brought for determination of the legal right to access to a child, rather than a proceeding to enforce a right which currently exists under a previous court order. Thus, section 11.05(a) does not deny jurisdiction to a court other than the domestic relations court in which such suit is pending to entertain a writ of habeas corpus. Instead, the new Family Code was intended to restrict the scope of habeas corpus proceedings to the sole question of whether the relator is entitled to possession under a court order or, in circumstances not relevant here, by virtue of section 12.04. See Smith, Draftsmen’s Commentary to Title 2 of the Texas Family Code, 5 Tex.Tech.L.Rev. 389, 435-36 (1974) (hereinafter cited as Draftsmen’s Commentary. To hold that writs of habeas corpus could be brought only in the court with continuing jurisdiction would severely restrict the efficacy of this remedy. Persons restraining children will often remove them to another part of the state far from the court with continuing jurisdiction. Thus, the party seeking return of the children may be severely hampered by this ploy if he or she cannot utilize a local court to enforce the right to possession through a habeas proceeding.

Relator argues also that the juvenile court had no jurisdiction because the domestic relations court had acquired dominant jurisdiction of the subject matter of the proceeding in the juvenile court before the application for writ of habeas corpus was filed in the juvenile court. We agree. The order of the domestic relations court appointed Mr. Jabara as temporary managing conservator and temporarily restrained Mrs. Jabara from interfering with his possession and control of the children. When Mr. Jabara asserted the pendency of the action in the domestic relations court by his motion to quash, which we treat as equivalent to a plea in abatement, the juvenile court’s jurisdiction was at an end, and it could enter no order except to dismiss the application for habeas corpus. Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex.1974).

Mrs. Jabara contends that the juvenile court was acting pursuant to the order of the Virginia court, which had obtained jurisdiction before the divorce action was filed in the domestic relations court, and that the Virginia court is the court of dominant jurisdiction. We conclude that the doctrine of dominant jurisdiction does not apply to suits pending in other states. Texas courts may recognize prior proceedings in other states as a matter of comity, but pendency of a proceeding in another state does not oust the jurisdiction of Texas courts to entertain the same controversy. Nowell v. Nowell, 408 S.W.2d 550, 553 (Tex.Civ.App.—Dallas 1966, writ dism’d), cert. denied, 389 U.S. 847, 88 S.Ct. 53, 19 L.Ed.2d 116 (1967). Consequently, Mrs. Jabara’s contention that the domestic relations court should defer to the Virginia court is a matter she may raise in the divorce case in the domestic relations court, and that court can then decide whether it has actual jurisdiction of the parties and subject matter. This contention cannot properly be raised collaterally in the juvenile court in a proceeding to enforce the Virginia order.

Mrs. Jabara further contends alternatively that the doctrine of dominant jurisdiction does not apply to the action in the domestic relations court because the issue in that court was not the same as that in the juvenile court. She argues that the issue in the domestic relations court was the welfare and best interest of the children temporarily, pending final judgment in the divorce action, and then permanently in the event a divorce should be granted; whereas the only issue before the juvenile court was whether Mrs. Jabara was entitled to immediate possession of the children under the Virginia order. She relies on cases such as McElreath v. Stewart, 545 S.W.2d 955, 957 (Tex.1977), and Standley v. Stewart, 539 S.W.2d 882, 883 (Tex.1976), which hold that under section 14.10 of the Family Code the best interest of the children is not at issue in a habeas corpus proceeding unless an emergency requires an immediate protective order and that the only question is which party has the immediate right to possession under the last valid court order.

We recognize that the divorce action in the domestic relations court raised issues that were not before the juvenile court on Mrs. Jabara’s application for writ of habeas corpus. Nevertheless, the issue of the right to immediate possession of the children, which was raised by the application for habeas corpus, was also before the domestic relations court in the temporary conserva-torship aspect of the divorce proceeding. On this issue any order of the juvenile court granting the relief sought by Mrs. Jabara would have led to the same kind of “unseemly conflict” pointed out in Curtis v. Gibbs, 511 S.W.2d 263, 266 (Tex.1974). Although the grounds which the domestic relations court could properly consider were broader than those raised in the juvenile court, it was the same controversy insofar as the right of immediate possession of these two children was concerned. The domestic relations court had appointed Mr. Jabara managing conservator and had ordered Mrs. Jabara not to interfere with his possession of the children. The relief sought by Mrs. Jabara in her application for writ of habeas corpus, namely, delivery of the children to her, would necessarily have defeated the order of the domestic relations court. This is exactly the sort of unseemly conflict that the doctrine of dominant jurisdiction is intended to avoid.

Mrs. Jabara points out that Mr. Jabara was not held in contempt for his failure to deliver the children to Mrs. Jabara, but rather for failure to produce them in court as ordered by the writ and orally by the judge of the juvenile court. She argues that the juvenile judge had authority to order Mr. Jabara to bring the children before him so that he could then decide whether the Virginia order or the order of the domestic relations court should be given controlling effect.

We cannot accept this argument. The only purpose of Mrs. Jabara’s application for habeas corpus was to obtain immediate possession of the children, notwithstanding the contrary provisions of the order of the domestic relations court. The juvenile court could have granted none of the relief prayed for without conflict with the previous order of the domestic relations court. Consequently, when Mr. Jabara brought to the attention of the juvenile court the previous action pending in the domestic relations court and the previous order issued by that court, production of the children in the juvenile court could serve no purpose. The only proper action by the juvenile court was to dismiss the application for habeas corpus. Any attack on the order of the domestic relations court and any attempt to modify that order were matters to be addressed solely to the domestic relations court. In this connection we note that Mrs. Jabara’s attack on the jurisdiction of the domestic relations court on the ground that Mr. Jabara had not been a Texas domiciliary for at least six months prior to filing the suit in the domestic relations court as required by Tex.Family Code Ann. § 3.21 (Vernon 1975) is impermissible. This contention also was a matter to be considered by the domestic relations court. It did not afford grounds for a collateral attack in the juvenile court because these facts did not appear on the face of the domestic relations court order. See Allen v. Bolton, 416 S.W.2d 906, 911 (Tex.Civ.App.—Corpus Christi 1967, no writ); Hodges, Collateral Attacks on Judgments, 41 Tex.L.Rev. 499 (1963).

We do not mean to hold that pend-ency of an action affecting the parent-child relationship necessarily ousts all other courts of habeas corpus jurisdiction. Another court of this state may have jurisdiction to issue a writ of habeas corpus for the purpose of enforcing an order of the court of continuing jurisdiction. See McElreath v. Stewart, 545 S.W.2d 955, 957 (Tex.1977). It is a different matter, however, to say that another court of coordinate jurisdiction may entertain an' action which, if successful, would have the effect of defeating an order of the court which had previously acquired jurisdiction. In that situation, the doctrine of dominant jurisdiction clearly applies.

We recognize, also, that Mr. Jabara was in the position of deliberately disregarding an express order of the juvenile court, and we can understand the juvenile court’s legitimate concern that its order should be obeyed. Nevertheless, a valid commitment for contempt must rest on violation of an order within the jurisdiction of the court. Ex parte Lillard, 159 Tex. 18, 314 S.W.2d 800, 805 (1958); Ex parte Britton, 127 Tex. 85, 92 S.W.2d 224 (1936). Since we hold, for the reasons stated, that the juvenile court had no jurisdiction to proceed after Mr. Jabara raised the question of pendency of the prior action in the domestic relations court, the commitment was void and Mr. Jabara was not in contempt.

Writ of habeas corpus granted.

      . The coercive part of the order is now moot because the children were attached under another order of the juvenile court.


author: NYE, Chief Justice.

text:
    Clinton B. FAWCETT, Appellant, v. Charlie BELLAH, Appellee.
    No. 1179.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 22, 1977.

      C. W. Mann, Corpus Christi, for appellant.
    Pedro P. Garcia, Corpus Christi, for ap-pellee.
   OPINION

NYE, Chief Justice.

This is a contract case. Plaintiff, Charlie Bellah, brought suit against the Defendant, Clinton B. Fawcett, to recover his architect’s fees for the preparation of plans for the construction of a commercial laundry establishment. Trial was to a jury. In response to the special issues submitted and answered, the trial court entered judgment for the Plaintiff. From this judgment, Defendant has perfected his appeal to this Court.

Plaintiff is a licensed architect and engineer. In October of 1972 a Mr. Robert Evers, who is in the laundry equipment business, introduced the parties, Plaintiff and Defendant, to each other. The purpose of the meeting was to arrange for the designing by the Plaintiff architect and the building by Defendant Fawcett of a laundromat on some property owned by the Defendant. At this meeting the litigants discussed the building, the costs and the architect’s fee. The record indicates that the Plaintiff left with the Defendant a form type contract that set out in detail the architectural fees Plaintiff would be charging for his services. Later that same month the Defendant contacted the Plaintiff and requested that he go ahead and prepare the plans for the building. Based on this conversation the Plaintiff prepared the plans and performed the other services that he promised to perform which were set out in the form contract. There was no formal written contract, however, executed by the parties.

After the plans had been completed, the Plaintiff submitted his bill for his services. When the Defendant failed to pay the Plaintiff for the services rendered, Plaintiff filed an affidavit of lien against the Defendant’s property and brought the present lawsuit seeking to recover his architectural fees in the amount of $4,260.00, plus interest and attorney’s fees. The Defendant filed a general denial and a cross-action in which he stated that he “was not bound under any contract to pay the cross-defendant (plaintiff Bellah) for his plans and specifications unless the building was constructed” and that he sought damages in the amount of $50,000.00 for the filing of the above described lien which he alleged was a cloud on the title to his land. He also sought to have the purported lien extinguished.

The case was tried primarily on the theory that the Plaintiff’s architectural fees were contingent upon the Defendant being able to obtain 100% financing for the construction of the building and that since he did not obtain such financing he did not owe the Plaintiff anything; therefore, the Plaintiff wrongfully placed a lien and cloud upon the title to his property for which he sought relief.

The case was submitted to the jury on the following special issues:

“SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that Plaintiff and Defendant had reached an agreement whereby Plaintiff was to prepare plans and specifications for the construction of a building proposed to be erected at the corner of Doddridge Street and South Staples Street?
Answer ‘Yes’ or ‘No.’ ANSWER: Yes
If you have answered Special Issue No. 1 ‘Yes,’ then answer Special Issue No. 2; otherwise, do not answer Special Issue No. 2.
SPECIAL ISSUE NO. 2
Do you find from a preponderance of the evidence that Plaintiff had completed his architectural duties up to the time of the actual construction of the proposed building?
Answer ‘Yes’ or ‘No.’ ANSWER: Yes
If you have answered Special Issue No. 2 ‘Yes,’ then answer Special Issue No. 3; otherwise, do not answer Special Issue No. 3.
SPECIAL ISSUE NO. 3
What sum of money, if any, if paid now, would reasonably compensate the Plaintiff for his services actually performed?
Answer in dollars and cents, if any.
ANSWER: $4,260.00
SPECIAL ISSUE NO. 4
What sum of money, if any, if paid now, would reasonably compensate the Plaintiff’s attorney in the trial of this case. In arriving at this figure, you shall consider the amount of time spent by Plaintiff’s attorney in the preparation of this lawsuit and the actual trial itself.
Answer in dollars and cents, if any.
ANSWER: $1.800.00 ”

Special Issue Nos. 5 and 6 concerned attorney’s fees on appeal which the jury answered zero.

Special Issue No. 7: “Do you find from a preponderance of the evidence that securing 100% construction financing was a condition precedent to the agreement, if any, between the parties?” (“condition precedent” was then defined by the court). The jury answered “No”. The jury then found that the Plaintiff filed an affidavit of lien knowing that the lien was invalid at the time it was filed (Special Issue No. 8), but that the Plaintiff did not file such a lien with malice (Special Issue No. 9). Special Issue No. 10 was conditional and not answered. The jury, in Special Issue No. 11, was then asked to find that the Plaintiff, although knowing that the lien was invalid, refused to release it at the request of the Defendant. The jury answered “No.” Special Issue No. 12, a conditional issue, was not answered. Next the jury was asked to find that the Plaintiff’s refusal to release the lien caused the Defendant to lose a sale on the property. Again the jury answered “No.” Special Issue No. 14 was a conditional issue and not answered. In Special Issue No. 15, the jury found that the Defendant failed to exercise reasonable efforts to minimize the damages, if any, suffered by him.

Based on the answers to all of these issues, the trial court entered judgment awarding the Plaintiff $4,260.00, attorney’s fees in the amount of $1,800.00, plus interest and costs.

Defendant’s first point of error complains of the action of the trial court in overruling Defendant’s objection to Special Issue No. 1 set out above. Defendant’s objection was that Special Issue No. 1 was not a controlling issue to any cause of action in the case. The Defendant argues as part of his multifarious objection to the court’s charge that the issue, if answered yes by the jury, would at best constitute only a gratuitous promise by Plaintiff with no consideration forthcoming from the Defendant. This point of error is overruled.

The Plaintiff’s pleadings stated “that on or about November 1, 1972, Plaintiff entered into a contract with Defendant wherein Plaintiff agreed to prepare plans and specifications for the construction of a building . . . ” The pleadings go on to state that the plans and specifications were completed and delivered to the Defendant; that the Defendant approved and accepted the plans and specifications and has retained them; that the Plaintiff billed the Defendant for the amount of the work performed; and that the Defendant failed and refused to pay. It is clear from Plaintiff’s pleadings and the evidence in the record that the Plaintiff had an express agreement to prepare the plans and specifications and that the Defendant agreed to pay the Plaintiff for his services. There was no exception to Plaintiff’s pleadings. Although the Defendant testified that the Plaintiff’s work was contingent on his securing 100% financing, the jury apparently chose not to believe him.

The first issue was in substantially correct form. If the Plaintiff were to prove up a valid contract, this would have been a proper first issue of a series of issues going to Plaintiff’s case in the main. Defendant s objection did not point out distinctly the grounds that he now argues here on appeal. Defendant’s objection to the court’s charge that the trial court failed to submit a controlling fact issue does not warrant reversal for this reason above. Unless he specifically sets out a proper complaint and objects specifically thereto so that the trial court may correct the error, if there be one, the objection may be overruled as being too general. See Western Hills Hotel, Inc. v. Ferracci, 299 S.W.2d 335 (Tex.Civ.App.—Fort Worth, writ dism’d by agr.).

The Defendant’s contention that the issue is not a controlling fact issue to any cause of action pled by the Plaintiff actually raises the same questions and arguments that Defendant asserts in his third point of error in which he complains of special issue number three and in which he acknowledges in his brief to be his main contention on appeal. This main contention here on appeal is that Plaintiff pled and tendered evidence only on an express contract and therefore was not entitled to these issues which inquire into the existence, vel non, of an implied contract or recovery in quantum meruit.

The Plaintiff admits that his recovery is based on an express contract and argues that these issues prove up such fact. Where an express contract covers the subject matter of a lawsuit, there can be no implied contract or recovery in quantum meruit. Freeman v. Carroll, 499 S.W.2d 668 (Tex.Civ.App.—Tyler 1973, writ ref’d n.r.e.).

The question before us then, and the one raised in Defendant’s first four points of error, is, whether or not the pleadings, the evidence, and issues will support the judgment in Plaintiff’s favor. Although Special Issue No. 1 inquires as to whether or not the parties reached a specific agreement, it does not specifically inquire as to the existence of consideration. This was not error. Special Issue No. 3, although misworded slightly, is really an inquiry to the jury as to the amount of the consideration that the parties undeniably agreed upon. The third issue probably should have read: “What sum of money, if any, was agreed upon by the parties as compensation of the Plaintiff’s architectural work.” However, Defendant’s objection to Special Issue No. 3 did not address itself to this complaint. If this issue as submitted was improperly worded, it was harmless error because the Defendant has not demonstrated on appeal that such error caused or probably caused the rendition improper judgment. Rule 434, T.R.C.P. The amount of money due for the services rendered was virtually undisputed. The main damage question was whether or not any money was due Plaintiff.

In any event, the trial court must have impliedly found consideration in the jury’s specific findings that Plaintiff and Defendant had entered into an agreement whereby the Plaintiff was to prepare the plans and specifications for the Defendant and that the Plaintiff had completed such duties. Under Rule 279, T.R.C.P., an omitted issue can be deemed to be found where it is necessary to support a judgment. Dee v. Parish, 160 Tex. 171, 327 S.W.2d 449 (1959); Utay v. Urbish, 433 S.W.2d 905 (Tex.Civ.App.—Dallas 1968, writ ref’d n.r. e.); Gillen v. Stevens, 330 S.W.2d 253 (Tex.Civ.App.—Waco 1959, writ ref’d n.r.e.). As Professor Hodges states in his treatise on special issues “. . . ‘an omitted issue’ is a single issue of the kind which might properly be submitted to the jury as one, and only one, of the special issues submitted to the jury. It does not by itself constitute a ground of recovery or defense.” 6. Hodges, Special Issue Submission in Texas, 196 (1959). Omitted issues, that constitute only a part of a complete and independent ground of recovery, are deemed found in support of judgment, if they are supported by evidence. Reliable Life Insurance Company v. Torres, 509 S.W.2d 409 (Tex.Civ.App.—Austin 1974, writ ref’d n.r.e.). In this case, no proper objection was made to the absence of a correctly worded issue on consideration, and therefore a finding of consideration is deemed.

As was stated earlier herein, the Plaintiff did not specifically plead for a recovery in quantum meruit nor was his proof based on this theory. His recovery was based on an express contract and the issues were sufficient to support a recovery on this basis. Rule 279, T.R.C.P., provides that where the trial court has fairly submitted the controlling issues raised by the pleadings and evidence, the case shall not be reversed because of the failure to submit other and various phases or different shades of the same issues. Although the courts have held that an issue must be tendered in substantially correct form, this requirement does not mean that the issue must be absolutely correct. Call of Houston, Inc. v. Mulvey, 343 S.W.2d 522 (Tex.Civ.App.—Houston 1961, no writ); Modica v. Howard, 161 S.W.2d 1093 (Tex.Civ.App.—Beaumont 1942, no writ). Defendant’s first four points of error are overruled.

In his final point of error Defendant complains of the action of the trial court in not limiting Special Issue No. 3 to services actually performed by Plaintiff alone. The basis of Defendant’s complaint is that the issue as worded, allowed the jury to consider work done by Plaintiff’s employees along with the work done by Plaintiff himself. In support of his position the Defendant relies on Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.Sup.1962) and Tenneco Oil Co. v. Padre Drilling Co., 453 S.W.2d 814 (Tex.Sup.1970). Both of these cases originally construed Article 2226 (attorney’s fees) to restrict recovery for personal services to those services actually performed. Whatever analogy the Defendant now seeks between these cases and the case at Bar was destroyed by the 1971 amendment to Article 2226 which deleted the reference to personal services and authorized a recovery merely for services rendered. Today services under Article 2226 may include work done by one’s employees and/or his equipment. Mathews Construction Company, Inc. v. Jasper Housing Construction Co., 528 S.W.2d 323 (Tex.Civ.App.—Beaumont 1975, writ ref’d n.r.e.). See Clark Advertising Agency, Inc. v. Tice, 490 F.2d 834 (5th Cir. 1974); Howard v. French-Brown Floors Co., 542 S.W.2d 709 (Tex.Civ.App.—Dallas 1976, no writ). The testimony concerning the services performed by Plaintiff shows that all the work done by Plaintiff for Defendant was done by the Plaintiff himself, his employees or others at Plaintiffs request and that the Plaintiff paid for those services. Clearly he was entitled to recover these services as part of his fee. We see no relationship to Defendant’s objection to Special Issue No. 3 and the attorney’s fee, Article 2226. Defendant’s fifth point of error is overruled.

The judgment of the trial court is affirmed.


text:
    Ann Friar THOMAS and J. Carter Thomas, Appellants, v. RALPH E. FAIR, INC., Appellee.
    No. 1186.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 22, 1977.
    Rehearing Denied Oct. 20, 1977.

      Edwin R. DeYoung, McKenzie & Baer, Dallas, for appellants.
    Robert Lee Bobbitt, San Antonio, for ap-pellee.
   OPINION

NYE, Chief Justice.

This is a venue case. Appellants Thomas-es, who were the landowners and Plaintiffs below, brought suit against Ralph E. Fair, Inc. to have an oil and gas lease on their land located in Goliad County terminated allegedly for non-production. Defendant, Ralph E. Fair, Inc., timely filed a plea of privilege to be sued in Bexar County. The landowners filed their controverting plea. After a hearing the trial court, without a jury, ruled for the Defendant; granted the plea of privilege; and ordered the case transferred to Bexar County. Plaintiff landowners have perfected their appeal from this judgment.

In March of 1976, Ann and T. Carter Thomas filed their original petition to terminate an oil, gas and mineral lease on approximately 1,067 acres of land located in Goliad County. The Thomases were the original lessors of the tract who leased the property to Ralph Nelson who assigned the lease to Ralph E. Fair, Inc., the present holder of the lease. The original lease was executed in 1951 for a 10 year term and as long thereafter as oil, gas or other minerals were produced. It is the landowners’ contention that the entire lawsuit is based upon Defendant’s failure to properly develop the land as a result of which (1) the lease is no longer producing in paying quantities and should be terminated or (2) the Defendant should answer in damages for its failure to properly develop the land under the lease. Defendant filed a general denial and a plea of privilege to be sued in its principal place of business, Bexar County. The landowners filed a controverting plea to Defendant’s plea of privilege, alleging an exception to Defendant’s plea under Tex.Rev.Civ.Stat.Ann. art. 1995(14) (1964). Defendant filed a reply to the landowners’ controverting plea wherein it alleged that the allegations, for venue purposes, in landowners’ original petition were made in bad faith and that the petition failed to state a cause of action sufficient to bring the suit within subdivision 14 of Article 1995. On the day of the hearing Plaintiffs filed an amended controverting plea which not only asserted an exception under subdivision 14 but also plead for the first time exceptions under subdivisions 5 and 23. (Although the petition states subdivision 21, it was agreed by the parties that the landowners actually intended to plead subdivision 23). After a full hearing the trial court granted Defendant’s plea of privilege and ordered the case transferred to Bexar County. No findings of fact or conclusions of law were made by the trial judge.

In their first point of error the Plaintiffs complain that the trial court erred in overruling their exception to Defendant’s plea of privilege under subdivision 14 of Article 1995. Subdivision 14 to Article 1995 states that suits for the recovery of land, or for damages to land, or to remove encumbrances upon title to land, or to quiet title to land, shall be brought in the county where the land may lie. The venue facts which the Plaintiffs must establish under this subdivision are: 1) that the suit is of the type specified under the subdivision, i.e., in this case, that the suit is one affecting title to real property; and 2) that the land or part thereof is located in the county where the suit was brought (in this case, Goliad County). Piazza v. Phillips, 153 Tex. 115, 264 S.W.2d 428 (1954); Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69 (1945); Petroleum Processing, Inc. v. Roemer, 396 S.W.2d 528 (Tex.Civ.App.—Corpus Christi 1965, no writ). In order to defeat a Defendant’s plea of privilege, the burden is on the Plaintiffs to allege and prove by a preponderance of the evidence that the case comes within one of the exceptions to the venue statute. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935); Socony Mobil Company, Inc. v. Southwestern Bell Telephone Co., 518 S.W.2d 257 (Tex.Civ.App.—Corpus Christi 1974, no writ).

In determining venue here, it remains for this Court to determine the nature of the suit solely from the facts alleged in the Plaintiffs’ petition, the rights asserted and the relief sought. Renwar Oil Corporation v. Lancaster, 154 Tex. 311, 276 S.W.2d 774 (1955); Edgar v. Bartek, 507 S.W.2d 831 (Tex.Civ.App.—Corpus Christi 1974, writ dism’d). The ultimate or dominant purpose of this type of suit determines whether or not this case falls under subdivision 14. Edgar v. Bartek, supra; Morgan v. Box, 449 S.W.2d 499 (Tex.Civ.App.—Dallas 1969, no writ); Texaco, Inc. v. Gideon, 366 S.W.2d 628 (Tex.Civ.App.—Austin 1963, no writ).

The actual questions raised by Plaintiff landowners’ first point of error are succinctly set out in Defendant appellee’s first cross-point of error. Defendant states that there are two basic grounds, either of which if true, would be sufficient for the trial court to have denied Plaintiffs’ claim under subdivision 14, Article 1995. Defendant’s first ground is that Plaintiffs failed to properly incorporate their original petition into their amended controverting plea and therefore failed to plead the venue facts necessary to come within that subdivision. Rule 86, T.R.C.P., provides in pertinent part:

“ . . . When a plea of privilege is filed in accordance with this rule, it shall be prima facie proof of the defendant’s right to change of venue; ... If such adverse party desires to controvert the plea of privilege, he shall within ten days after he or his attorney of record received the copy of the plea of privilege file a controverting plea under oath, setting out specifically the grounds relied upon to confer venue of such cause on the court where the cause is pending.” (emphasis added).

Plaintiff landowners’ amended controverting plea relied upon by them to allege that this cause of action must be brought in Goliad County under the terms of subdivision 14 of Article 1995, states the following:

Plaintiffs’ cause of action against Defendant, as more fully set forth in Plaintiffs’petition is for the termination of the oil, gas and mineral lease on Plaintiffs’ real property located in Goliad County, Texas. Therefore, this suit may be maintained in the county of Goliad, Texas, under the provisions of the Revised Civil Statutes of Texas, Article 1995, Subdivision 14. (emphasis added).

This pleading is not sufficient to allege any exception to venue in the county of the Defendant’s residence as Rule 86 required. The rule of law involved herein was set out by the Supreme Court in A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619 (1939). The Court held: that a controverting affidavit which contains no allegations of fact and contains a mere reference to the petition is insufficient to supply the essential facts in order to sustain venue where the suit was filed. Many other cases support this rule. Some are as follows: Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347 (1933); Spencer v. Gray, 209 S.W.2d 651 (Tex.Civ.App.—Fort Worth 1948, no writ); C. F. Lytle Co. v. Preston, 175 S.W.2d 440 (Tex.Civ.App.—Fort Worth 1943, no writ); Benedum v. John Woodley, Inc., 50 S.W.2d 493 (Tex.Civ.App.—Beaumont 1932, no writ); Grogan-Cochran Lumber Co. v. McWhorter, 4 S.W.2d 995 (Tex.Civ.App.—Beaumont 1928, no writ). See also Leonard v. Maxwell, 365 S.W.2d 340 (Tex.Sup.1963).

The second reason the trial court was correct in refusing to grant Plaintiffs’ subdivision 14 exception concerns Defendant’s assertion that Plaintiffs’ allegation that production in paying quantities had ceased was made in bad faith for venue purposes. Where such an allegation is raised it places on the Plaintiffs the additional burden of proof that said allegation was not made in bad faith. Noel v. Griffin & Brand of McAllen, Inc., 478 S.W.2d 633 (Tex.Civ.App.—Corpus Christi 1972, no writ); Batex Oil Company v. La Brisa Land and Cattle Company, 352 S.W.2d 769 (Tex.Civ.App.—San Antonio 1961, writ dism’d). A review of the record indicates Plaintiffs totally failed on this issue.

The landowners brought suit to terminate the oil and gas lease primarily because of the alleged failure of the Defendant to produce from the lease in paying quantities after the expiration of the primary term. A review of the evidence shows that the lease was in fact producing in paying quantities. The landowners admitted that they received royalty payments. We hold that such evidence and proof was sufficient for the trial court’s implied finding of bad faith which thereby authorized the granting of the plea of privilege. See Batex Oil Company v. La Brisa Land and Cattle Company, 352 S.W.2d 769 (Tex.Civ.App.—San Antonio 1962, writ dism’d); Citizens Bridge Co. v. Guerra, 152 Tex. 361, 258 S.W.2d 64 (1953). Appellant landowners’ point of error number one is overruled.

Landowners’ second point of error is that the trial court erred in not sustaining venue in Goliad County under subdivision 5 of Article 1995. Subdivision 5 states that if a person has contracted in writing to perform an obligation in a particular county expressly naming such county, suit may be brought against him in that county. The venue facts which must be pled and proven under subdivision 5 are: 1) the Defendant must be a party reached by the statute; 2) the Plaintiff’s claim is based on a written obligation upon which he bases his recovery; 3) the contract was entered into by the Defendant or one authorized to bind him or was assumed or ratified by him; and 4) that the contract by its terms provides for the performance of the obligation sued upon in the county of suit. Fleetwood Construction Compnay, Inc. v. Western Steel Company, 510 S.W.2d 161 (Tex.Civ.App.—Corpus Christi 1974, no writ).

The Plaintiff landowners failed to incorporate their petition into their controverting plea (see arguments under first point of error); therefore, we can only look to the plea itself to determine whether or not subdivision 5 is applicable. Plaintiff landowners’ plea states that the lease was entered into in Goliad County; that it was in writing; and that it concerned Defendant’s obligation to perform under such lease in Goliad County. This pleading is clearly insufficient. The plea fails to state what obligation, if any, the Defendant had in Goliad County. It fails to even allege that any obligation was breached. Plaintiff landowners’ second point of error is overruled.

Plaintiff landowners’ final point of error concerns the alleged error of the trial court in failing to sustain venue in Goliad County under subdivision 23 of Article 1995. Subdivision 23 provides that suits against private corporations may be brought in the county where the corporation’s principal office is located or where the cause of action arose. Initially it should be noted that Plaintiff landowners had some problems in deciding exactly which additional exception to plead. In their controverting plea they assert subdivision 21, which is obviously not applicable. On appeal they assert subdivision 23, but since the Defendant is a foreign corporation, they probably intended to plead subdivision 27.

Defendant asserts that subdivision 23 had no application because the subdivision applies only to domestic corporations. This contention is also incorrect. Subdivision 23 is applicable to both foreign and domestic corporations. Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.2d 978 (1932); Pittsburg Water Heater Co. of Texas v. Sullivan, 115 Tex. 417, 282 S.W. 576 (1926); Delhi Gas Pipeline Corporation v. Allgood, 492 S.W.2d 651 (Tex.Civ.App.—Tyler 1973, no writ); Northwestern Mutual Insurance Company v. Lawson, 476 S.W.2d 931 (Tex.Civ.App.—Tyler 1972, no writ); Shamrock Oil and Gas Corporation v. Price, 364 S.W.2d 260 (Tex.Civ.App.—Amarillo 1963, no writ).

However, this subdivision suffers the same infirmity as the other subdivisions pled by Plaintiff landowners. The controverting affidavit was improperly pled. The Plaintiff landowners alleged that the Defendant was a corporation and that the cause of action arose in Goliad County. In order to maintain venue under subdivision 23 a Plaintiff must plead and prove: 1) that the action is against a private corporation; 2) that Defendant had an agency or representative in the county where venue is sought to be sustained; 3) that Plaintiff resided in the county of suit at the time his cause of action arose; and 4) that Plaintiff had a cause of action against the Defendant. Continental Transfer & Storage Company, Inc. v. Gee, 285 S.W.2d 892 (Tex.Civ.App.—Eastland 1955, no writ); Golasinski v. Warren Refrigerator Co., Inc., 226 S.W.2d 220 (Tex.Civ.App.—Galveston 1949, no writ); Trinity Universal Ins. Co. v. Wallace, 186 S.W.2d 86 (Tex.Civ.App.—San Antonio 1945, no writ). Clearly Plaintiffs’ pleadings fail to address the existence of any agent in the county or that they had a cause of action against the Defendant.

There is an additional compelling reason why venue should not be sustained under subdivision 23. To come within subdivision 23 the Plaintiffs must prove that a cause of action exists; the Plaintiffs have the same burden as in a trial on the merits. White Stores, Inc. v. Fielding, 533 S.W.2d 431 (Tex.Civ.App.—Corpus Christi 1976, no writ); Socony Mobil Company, Inc. v. Southwestern Bell Telephone Co., 518 S.W.2d 257 (Tex.Civ.App.—Corpus Christi 1974, no writ). A review of the testimony offered at the venue hearing indicates Plaintiffs totally failed to discharge this burden. The record indicates that the oil well in question was producing in paying quantities so as to negate the cause of action alleged by the landowners. This third point of error is also overruled.

The judgment of the trial court is affirmed.