MORIARTY v. WILLIAMS

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Docket Number

No. 08-87-00324-CV.

Attorney(S)

Philip C. Short, DuBose Short, Houston, for appellant. Donald E. Godwin, Mawell, Godwin Carlton, Bernie E. Hauder, Dallas, for appellees.

Judges

FULLER, Justice.

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Smart Summary

Factual and Procedural Background

Appellant Ed Moriarty filed suit against Appellees Clayton W. Williams, Jr. and ClayDesta Communications, Inc. in Bexar County, Texas, alleging breach of contract among other claims. The Appellees moved to transfer venue to Midland County, where Williams resided and ClayDesta had its principal office. The 131st District Court of Bexar County granted the motion to transfer venue. Subsequently, the 142nd District Court of Midland County granted summary judgment in favor of the Appellees. Moriarty appealed both the venue transfer and the summary judgment.

Legal Issues Presented

Whether the 131st District Court of Bexar County erred in transferring venue to Midland County.
Whether the 142nd District Court of Midland County erred in granting summary judgment in favor of the Appellees.

Arguments of the Parties

Appellant's Arguments

The trial court improperly considered an amended opposition to the motion to transfer venue that was filed late without leave of court; therefore, the court should have considered the original timely opposition.
The first amended original petition, filed properly before the venue hearing, contained new causes of action beyond breach of contract, including declaratory judgment, conversion, quantum meruit, negligence, abuse of process, and libel and slander, which maintained venue in Bexar County.
Appellees failed to file amended answers or motions to transfer venue addressing the amended petition, resulting in a lack of specific denial of venue facts.
Appellee ClayDesta did not specifically deny having an agency or representative in Bexar County, which under Texas law admits the fact for venue purposes.
Venue was proper in Bexar County because the plaintiff resided there at the time of the accrual of the libel and slander claims, and Texas law permits venue in such cases at the plaintiff's election.
Because multiple defendants were properly joined, venue was proper in Bexar County for all claims against all defendants.

Appellees' Arguments

The trial court could not consider the late-filed amended opposition to the motion to transfer venue.
The late-filed amended opposition effectively replaced the original timely opposition, thereby negating any response to the motion to transfer venue.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Nava v. Steubing, 700 S.W.2d 668 (Tex.App.—San Antonio 1985, no writ)	Presumption that trial court refused to consider late-filed pleadings without affirmative indication of allowance.	The court presumed the trial court did not consider the late-filed amended opposition to the motion to transfer venue.
Schepps v. American District Telegraph Co. of Texas, 286 S.W.2d 684 (Tex.Civ.App.—Dallas 1955, no writ)	An amended pleading supplants the original and stands on its own; answers to the original pleading are construed as answers to the amendment unless the amendment introduces wholly new claims.	The court held the trial court was required to consider the first amended original petition and treat the original answer as responsive to it.
Getty Oil Company v. Corbin, 653 S.W.2d 342 (Tex.App.—San Antonio 1983, cause dismissed as moot)	Alternate allegations are sufficient to maintain venue.	The court found that the amended petition's multiple causes of action were sufficient to maintain venue in Bexar County.

Court's Reasoning and Analysis

The court analyzed the procedural posture regarding the motion to transfer venue, emphasizing that the trial court should not have considered the late-filed amended opposition without leave, but should have considered the original timely response. The court recognized that the first amended original petition, properly filed before the venue hearing, introduced new causes of action that supported venue in Bexar County. Because the Appellees did not amend their answers or motions to address the amended petition, they failed to specifically deny venue facts, which under Texas procedural rules were admitted. The court also applied statutory provisions regarding venue for corporate defendants and claims for libel and slander, concluding that venue was proper in Bexar County. The court further noted that when multiple defendants are joined, venue proper as to one defendant extends to all. Based on this reasoning, the court concluded the transfer of venue to Midland County was erroneous and that the summary judgment granted thereafter was also improper.

Holding and Implications

The court reversed the order transferring venue from Bexar County to Midland County and consequently reversed the summary judgment granted by the Midland County court. The case was remanded with instructions to transfer the case back to the 131st District Court of Bexar County. The decision directly affects the parties by restoring venue in Bexar County and vacating the summary judgment. No new precedent was established beyond the application of existing venue and procedural rules.

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Ed MORIARTY, Appellant, v. Clayton W. WILLIAMS, Jr., and Claydesta Communications, Inc., Appellees.

FULLER, Justice.

This is an appeal from the granting of a motion to transfer venue and the thereafter granting of a summary judgment in favor of Appellees, Clayton W. Williams, Jr. (Williams) and ClayDesta Communications, Inc. (ClayDesta). We reverse the order of the 131st District Court of Bexar County that transferred venue to Midland County, and we necessarily therefore reverse the summary judgment thereafter granted by the 142nd District Court of Midland County.

Point of Error No. One asserts that the 131st District Court of Bexar County erred in transferring the case to Midland County, Texas.

Points of Error Nos. Two through Seven assert that the 142nd District Court of Midland County, Texas erred in granting summary judgment in favor of Appellees.

Appellant's suit against the Appellees was filed in Bexar County, the residency of the Appellant, alleging a cause of action for breach of contract. Appellees filed a motion to transfer venue to Midland, Texas, the residency of Williams and the principal office of ClayDesta. Appellant filed a response in opposition to the motion to transfer venue and attached an affidavit of the Appellant.

Appellant, within thirty days of the venue hearing, filed an amended opposition to the motion to transfer venue without first obtaining leave of the court. Rule 87(1) of the Texas Rules of Civil Procedure provides: "[e]xcept on leave of the court any response or opposing affidavits shall be filed at least 30 days prior to the hearing of the motion to transfer. . . ." There was no affirmative indication in the record that the trial court allowed the late filing of the amended opposition to Appellees' motion to transfer venue. Therefore, it is our duty to presume that the trial court refused and did not consider the late filing of Appellant's amended opposition response. Nava v. Steubing, 700 S.W.2d 668 (Tex.App. — San Antonio 1985, no writ). Appellees contend that the trial court could not consider the amended opposition to the motion to transfer venue but also claims the amended opposition response in effect "took the place" of the Appellant's original on-time response, thereby "wiping out" from the trial court's consideration any answer or response to Appellees' venue motion. We disagree and find that the trial court should consider the Appellant's original response to the venue motion. Even if such contention put forth by Appellees had validity, it would not justify the transfer of venue.

Appellant's first amended original petition was filed more than seven days before the venue hearing and was properly before the court at such hearing. Tex.R.Civ.P. 63. Rule 87 sec. 3(b) states in regard to the venue hearing: "[t]he court shall determine the motion to transfer venue on the basis of the pleadings, any stipulations made by and between the parties and such affidavits and attachments as may be filed by the parties. . . ."

Appellant's first amended original petition supplanted the Appellant's original petition and the court was duty bound to consider Appellant's last amended pleading. Schepps v. American District Telegraph Co. of Texas, 286 S.W.2d 684 (Tex.Civ.App. — Dallas 1955, no writ). The last amended pleading stands on its own allegations, unaided by the superseded pleading. "Since the amended pleading takes the place of the pleading it supersedes, a filed answer to the earlier pleading will be construed automatically as an answer to the amendment, at least so long as the latter does not set up an entirely new claim on a wholly different transaction or occurrence." 2 McDonald, Texas Civil Practice, sec. 8.10 (rev. 1982).

At the time of the venue hearing, the trial court should have looked at Appellant's first amended original petition which alleged new causes of action. Appellees did not file an amended answer or an amended motion to transfer venue to meet the first amended original petition. This resulted in a lack of specific denial of all venue facts alleged in the first amended original petition.

The Appellant's original petition alleged only a breach of contract action whereas the amended pleading alleged the existence of a cause of action for (1) breach of contract, (2) declaratory judgment, (3) conversion, (4) quantum meruit, (5) negligence, (6) abuse of process, (7) libel and slander. Alternate allegations are sufficient for the purpose of maintaining venue. Getty Oil Company v. Corbin, 653 S.W.2d 342 (Tex.App. — San Antonio 1983, cause dismissed as moot).

Appellee ClayDesta is a corporation and, as such, suit against it "may be brought in the county in which its principal office is situated, in the county in which all or a part of the cause of action arose, or in the county where the plaintiff resided when all or a part of the cause of action arose, provided the corporation . . . has an agency or representative in the county. . . ." Tex.Civ.Prac. Rem. Code Ann. sec. 15.036 (Vernon 1986). Appellee ClayDesta did not specifically deny that it had an agency or representative in Bexar County as alleged by Appellant. A failure to specifically deny a pleaded venue fact admits it for purposes of venue. Tex.R.Civ.P. 87 sec. 3(a).

In Appellant's amended pleading, he sued for damages for libel and slander. "A suit for damages for libel, slander, or invasion of privacy shall be brought and can only be maintained in the county in which the plaintiff resided at the time of the accrual of the cause of action, or in the county in which the defendant resided at the time of filing suit, or in the county of the residence of defendants, or any of them, or the domicile of any corporate defendant, at the election of the plaintiff." [emphasis ours]. Tex.Civ.Prac. Rem. Code Ann. sec. 15.017 (Vernon 1986).

When at least two defendants, such as here, are properly joined in a single lawsuit and the trial court has venue of an action or claim against any one defendant, the court also has venue of all claims or actions against all defendants. Tex.Civ.Prac. Rem. Code Ann. sec. 15.061 (Vernon 1986). The trial court should have denied Appellees' motion to transfer venue to Midland County.

Point of Error No. One is sustained.

We reverse the order of the 131st District Court of Bexar County that transferred venue to Midland County and necessarily therefore reverse the summary judgment granted by the 142nd District Court of Midland, Texas and remand the case to that court in Midland with instructions to order the district clerk of Midland County to transfer the case to the 131st District Court of Bexar County, Texas.