*1 direct appeal, appeal this dismissed
want jurisdiction. Nothing this stated in however,
opinion, should construed to
рrejudice right attempt appeal provisions out-of-time 44.08(e)
of Tex.Code Crim.Pro.Ann. art.
(Vernon 1966). JOHNSON, INC., Appellant,
BERNARD CONSTRUCTORS,
CONTINENTAL
INC., Appellee.
No. 13522. Texas, of Appeals
Court
Austin.
Feb. 1982.
Rehearing April Denied
The appellant’s plea trial court denied privilege hearing appel- after and sustained controverting plea lee’s to the effect that County proper venue in Travis as to both exception defendants under four of exception provides, article 1995. That rath- simply purposes, er for our if two counties, defendants reside in different suit brought county where either Appellee proved pri- defendant resides. against Department, ma facie case County, “resident” of Travis and contends must, therefore, exception four, Ap- in the county. submit venue pellant interpretation resists based given exception Stockyards four in National v. Maples, Bank 95 S.W.2d (1936). Appellant appellee admits was not re- establish, evidence, quired extrinsic prima against appellant, facie case the non- defendant; rather, resident the issue of present venue in the circumstances must be solely upon рroposition this determined allegations appellee’s peti- law: Do the Anderson, Graves, John T. Dougherty, controverting plea tion and show a cause of Hearon, Garwood, Austin, Moody & ap- for (1) against appellant action which is either: pellant. joint against claim and the (2) Department; grow- a cause of action Pappas, Russell, Chris Wyckoff, C. Dunn ing so out of the same transaction and Frazier, Houston, for intimately against connected with the claim Department the two should be POWERS, Justice. joined under “the rule intended to avoid a Appellee, Constructors, Inc., Continental multiplicity of suits?” Id. sued, Texas, County, Travis the Texas An examination of controvert- Department Parks and Wildlife ing plea incorporates by reveals that it ref- Johnson, lant Bernard Inc. The suit arose ap- erence all the contained in out of construction of a bulkhead turn, pellee’s petition. petition, in as- at Lake Livingston, Texas under a contract Department, serts the resident between apрellee Department. defendant, two causes of action in contract: The contract called for construction of the (1) appellee fully performed the bulkhead plans specifications prepar- bulkhead to contract and its work thereunder had been ed by provi- and contained other finally accepted by Department; allegedly gave appellant sions which certain completion required the work extra fill architect/engi- and duties as “the appellee supplied; the bulk- material neer.” expressly required head contract the De- Appellant interposed plea privilege material; partment pay the extra County, to be sued in Harris its “residence” and, Department breached the bulkhead for venue purposes. it; Tex.Rev.Civ.Stat.Ann. pay by refusing art. 1995 The “residence” failed, although the bulkhead built to con- Department, purposes, for venue Travis plans specifications, whereupon County. Department re- requested it; further, alternative, build agent representa- Pleading unnamed and in the Defendant, Department tive of the represented that Plaintiff would show that the Johnson, Department Incorporated, Bernard failed to pay would for the rebuild- ing; bulkhead; responsibilities delegated and, rebuilt the Specifi- it under the Bulkhead Contract. breached this concomitant oral cally, properly said Defendant failed to contract by refusing pay the reasonable *3 supervise and administer the Bulkhead value of work in making the re- failure, Project. As a said result of such quested repairs. thereby Defendant breached said contract With alleged the claims by causing damages Plaintiff’s as herein ref- appellee against appellant, the non-resident erenced. defendant, petition reveals an intent to Appellee appellant does not contend be- allege a cause of action in negligence and generally came liable on the contract be- one for breаch of contract. appellee tween the Department. Nor In setting forth its claim negligence, appellee appellant does contend became appellee makes the following allegations: contractually appellee by bound to virtue of appellant engaged by was the Department express Rather, contract between them. to serve as architect on the bulkhead appellee appellant claims that because fur- project; appellant prepared the pertinent “job specifications” nished and assumed plans specifications; under the terms of obligations specifically assigned ap- contract, the bulkhead appellant was made pellant express ap- in the contract between responsible administration pellee Department, appellant there- of the contract as “representative” of by became contractually bound in favor of Department construction; and, during appellee obligations those with- negligent, the negligence be- Thus, out negligence. so far as we are able ing alleged in the following words: determine from briefs and Plaintiff would show that said Defendant rather allegations, appellee’s indistinct failed to properly administer the Bulk- ultimately claim is one for negligence only; Project. head Due to the failure of said negligence being to avoid such Defendant to properly process however, change said, (1) origin to have an either orders and administer Project, said Plain- express contract made appellee between tiff suffered extensive delays and the in- Department, in the common creased costs resulting therefrom. of negligence.1 Said law Defendant abrogated responsibilities its showing any Essential to “cause of ac- in supervising and administering the tion,” is, cognizable claim in the Project. Bulkhead The acts and/or omis- State, courts of our are allegations suffi- part sions on the of said Defendant con- cient to invoke a rule of substantive law stitute negligence as that term is under- which, alleged, under the circumstances stood in law. negligence proxi- Such vests in plaintiff right imposes mately caused damages, Plaintiff’s which upon the corresponding duty defendant a Plaintiff would greatly show exceed the which he has breached. MacDonald v. jurisdictional minimum limits of this Trammell, 163 Tex. S.W.2d court. (1962); Phoenix Lumber Co. Houston Appellee’s claim for breach of contract is Water S.W.
stated as
47;
follows:
McDonald,
Texas
Tex.R.Civ.P.
put
1. One
promissory assumption
is hard
to understand what
in ex-
of such duties
argument
appellant, by
change
intends
as-
No
form of consideration.
suming
upon any
the duties
to it in the
claim is made that
relied
thereby
appellee;
express
implied promise
became liable in contract to
relevant
the
made
proposition
and there is
appellee’s
appellant.
put
no citation for that
We
the best face we can on
appeal.
nothing
aрpellee’s pleading
briefs on
There is
and briefs when we state
appellant’s suggests
proposition
opinion.
or briefs which
in the text of the
id.,
care, skill, expedience, and
Civil Practice
(rev.1981);
degree
site
2.02
§
faithfulness,
factual alle-
the matters which were as-
plaintiff’s
6.12. Whether
gations
right,
express
set
forth a
and a
signed
except by
breach cannot be determined
ref-
Ap-
between the
erence to the substantive law. We
inquire
provi-
refers to these contract
pellee’s brief
requisite duty
first whether
on
them in their
quotes some of
sions and
part
lant’s
arisen
force of a
could have
entirety.
It
is inconceivable
admittedly
to which he was
not a
against appellant
could maintain its action
ordinary
sense.
the contents of the
proving
without
at trial
resulting
contract and the
bulkhead
A DUTY BASED UPON CONTRACT
upon appellee therein.
placed
said to be
cases,
sub-
any action is said to be in
appellee’s allega
The substance of
contract, even
an action on the
tiоns,
stance
liberally interpret
when we
them and
*4
neg-
intendment,
it is
an action
supply
though
is that
denominated
every reasonable
Inter-
ligent performance of the contract.2
appellant
perform
requi-
failed to
with the
ments,
should,
appellee
point, clarify
forth a cause of
has not set
2. We
at this
several mat-
statutory
question
appellant’s
of
invoked a rule of
as to defeat
ters which bear
the ultimate
action so
county
appellee’s pleadings
privilege
of its “resi-
whether
the substantive
could be liable to
to be sued
appellant
law under which
dence.”
artfully
appellee
is not whether
has
issue
example,
pleaded
it is
of
For
a cause
action.
Appellee’s petition
controverting plea nei-
and
whether,
appellant suggests, ap-
as
immaterial
pellee
any provision in the
ther set forth nor refer to
allege
a
of
an element of cause
failed to
places upon appellant
which
bulkhead contrаct
Rather,
negligence.
issue is
action for
fact,
specific duty.
only specific
a
act of
appellee’s allegations,
taken as
when
whether
negligence alleged by
appellant
appellee is that
true,
invoke a rule of substantive law
properly “process” change
failed to
We
the
orders.
wrong
appellee
it
will
relief to
for the
afford
purposes
for the
of
that
assume
discussion
appellant.
attributes to
Under the
not consider the actual contract
aid of
required appellant
to
bulkhead contract
case, may
Stockyards
we
rule of
“process”
remaining allega-
such orders. The
provisions in
negligence
by appellee
tions of
made
are that
although
appellee’s allegations,
the con-
appellant negligently performed
general
at the
was introduced in evidence
tract itself
“supervise”
to
“administer”
contract
and
hearing
part of the
and is before us as
venue
project.
appellant failed
the bulkhead
to take
Because
Depart-
proved against
prima
facie case
exception
generality
special
of
ment,
The issue before
the resident defendant.
general
negligence,
these
claims of
we are de-
venue,
deter-
to be
us is one not of
mined
prived
interpretative rule that
of the valuable
allega-
solely by
reference
specific
negligence,
allegation
re-
the one
of
practicality
justice
as-
orders,
of this
tions. The
specting
“processing”
change
Stockyards
questioned
pect
been
has
allegations accordingly.
general
limits the more
appellate
ignored
some intermediate
even
courts.
354.
We note
pellant’s
Lawyers
Corp.,
Stone v.
Title Ins.
554 S.W.2d
McDonald,
4.10.1,
supra,
at 353-
(Tex.1977).
n
Nevertheless,
appellant objected at the venue
alleges ap-
immediately
that
hearing
rela-
that there existed no contractual
assigned
obligations
were
contractual
tionship
appellant
appellee, and
between
Department,
“representative”
as
of the
to it
with the
that connection was owed
any duty
by appellant
that
owed
claimed
any duty
necessary implication
(the Depart-
“runs” to the “State of Texas”
Department
ment). Appellant
try by
therefore did not
con-
Appellee also
intended for its benefit.
“duty” question.
aspects
sent
Buchanan v.
688
the
of the
See
those
“delegat-
responsibilities
alleges
were
that such
Jean,
141 Tex.
172 S.W.2d
appellant by
Department.
must
We
ed” to
assume the truth
antithetical
(1943),evaluating
in similar circumstances
They
allegations.
are
of these
plaintiffs controverting plea
as to whether
contracting
being
appellant
trespass
it “set out
action”
Moreover, appel-
ordinary
party sense.
tempted
exception nine of article 1995. We are
intend to
that it did not
briefs make clear
lee’s
allege appellant
rehearing
to remand the case for
venue
party
the con-
was such
quеstion
presentation
of the confused
because
Department.
appellee and the
us,
between
in Buchan-
of the issues before
as was done
allegations,
general
lib-
Nevertheless,
thrust of
proceed
The
erally interpreted,
an.
as best we can
negligently
us, pri-
is that
under the
marily upon
we have before
pow-
supervisory
very
one or more of
exercised
ers sometimes
the basis that even under the
assigned
in similar
by ap-
to architects
general allegations
pellee,
negligence
made
vary
in kind and
supplying
Such
intend-
contracts.
all reasonable
Printing
national
Pressman &
sentative” of the Department.
Assistants’
If
Smith,
Union v.
negligent
198 S.W.2d was indeed
in the performance of
(1947).
any duty
assigned to
in the bulkhead
imputed
would be
rule,
As a
a suit
to the Department.
Then the
breach of
not be maintained
therefore, just Montgom
would be liable
person
who is not a party to the
ery Ward &
Co.
held liable
contract, particularly a non-party who is
repairman’s negligence
performance
in his
duties
the terms of the con
obligation
contractual
owed Mont
tract.
George,
Jones v.
cause
of сontract”
exists be-
no
Valley Ready-
he owes no
plaintiff,
George, supra;
tween himself and the
Carruth
C.J.S.,
plaintiff upon
Co.,
supra.
which
supra; 17A
Mix Concrete
not the
may
predicated.4
action
Such
legal
was not in
contem-
Because
instance,
case before us.
In this
a contract-
contract,
no
it owed
plation
party
(ap-
ing party (appellee) sues a defendant
However,
contract-based
pellant)
party
who is not a
light,
viewed in its most favorable
upon
founded
said to have arisen
con-
also be viewed as
argument may
lee’s
provisions
required
virtue of contract
which
ought
there
tending
proposition
non-party
defendant
certain
duty placed upon the
be a common-law
Appellee
pertinent
raises the
con-
tasks.
not a con-
though
even
it was
appellant,
impose liability; appel-
tract as a sword
had, and
because
tracting party,
lant does not raise it as a shield from liabili-
exercised,
affirmatively
contol over
ty. Appellant
interpose
“privity
does
virtue of
process by
in the construction
defense,
contract” as a
in a far differ-
provisions.
unspecified
certain but
sense, saying
ent
in effect:
“I was not a
liberally interpreted,
Appellee’s allegations,
plain-
to the contract
which the
argument.
will allow the
sues;
therefore,
not, by my prom-
tiff
I did
ise, obligate myself
respecting
to him
THE
A DUTY BASED UPON
words,
duty upon
he
In other
sues.”
LAW
COMMON
contends,
correct-
believe
enforced,
reported cases
We
from the
know
ly,
may
contractual duties
not be
circumstances,
contracts between
building
who is
and construction
in these
one
(Second)
Torts
which deline-
4. House v. Houston Waterworks
(1895); City
of Wichita Fails
of one who furnishes
S.W. 179
ates the
Swartz,
(Tex.Civ.App.
persons
371
(the
drawn,
Department here)
carefully
owner
a con-
professionally
and
and
and
here),
tractor
(appellee
may
in
vary greatly
specifications
are clear and
from
powers
assigned
super-
and duties
to a
precise,
is an
that ac-
incidental benefit
vising
by agreement
architect
of the con-
crues to
contractor.
tracting parties. The
authority
architect’s
Rolland,
Co.,
Landscape
v.
Valley
Inc.
218
parties
connection
with
and the work
120,
Va.
237
122-123
S.E.2d
varies accordingly.5
words, generally speaking, any duty
other
any
If
generality
expressed
can be
with
power assigned
to the architect
to the capacity assigned
the su-
building contract
is for the benefit of the
pervising
contracting par-
architect
employed
owner who
the architect.
ties, might
perhaps be this:
jurisdictions
judicial-
some
have
Courts in
The duty of the architect
protect
is to
ly
upon
duty of
imposed
architects a
ordi-
owner to the end that
of the
quality
nary
in favor of
care
the contractor. These
workmanship
goes
into
project,
power
courts
done so
have
based
quality
kind and
of the materials
possessed
over the contractor
said
to be
used,
that are
will be in accordance with
the architect. We find
of these
some
cases
the plans
specifications
upon which
lacking
logical analysis; particularly
be-
the owner
agreed.
and architect
have
they ignore
cause
what
seems
us
fun-
undertakings
These
by the architect are
proposition:
protect
damental
the architect’s
rela-
designed to
and enhance the
profit
parties
tion to the
and the work is one
other interest of
con-
tractor. The
specified by
fact
will
contracting parties
contractor
their
profit
benefit and
plans
bargained-for
agreement.6
that are
long as the
So
See, Lonergan
agreement
owner);
v. San Antonio Loan Trust
&
contractor
Co.,
(1907) (imply
Eisele,
Assoc.,
Tex.
As indicated previously, jurisdic- some tions adopted and, upon have those whom it generally, works. theory See apparently, have even promulgated gen- The Duty to Act Shapo, M. In the eral arсhitects, rule that merely upon based us, however, case before as by appel- made status as their architects, upon or based allegations, lee’s is specifically alleged stereotype court, of architects held by the was, that appellant under the terms of the owe a duty of care to the contractor in the bulkhead “representa- made the circumstances we have before us in this Department. public tive” of the We see no case. We find no such rule of substantive policy why contracting parties reasons law in jurisprudence of our State. We may not so limit or qualify appellant’s rela- may ourselves, not promulgate it as dis- tionship to themselves and to the work and cussed below. why interpret we should not so any power We do not see general how a rule of relied upon appellee as a basis for its claim. application may be stated of the ar- kind Therefore, appellee’s pleadings even if gued appellee. When shall reasonably interpreted be implying spe- amount and kind of control be deemed suf- cific or general power assigned appellant, ficient to impose the duty? May any kind power is relevant to the specific cir- degree of control in particular cumstances giving appellee’s injuries rise to sufficient, no matter how minimal or (which we do not believe the are unrelated to the injury alleged? Any such general rule of application, do), based an sufficient that power qualified assumed control of the architect so as to be for the accommodation and contractor, over the invariably must result protection and not for injustice particular an in a case when the benefit of assigns no control to the architect Though parties, not raised with respect particular to a aspect of the point possible out that it is for one to incur contractor’s work occurs, wherein the injury another, of care toward in certain is, nevertheless, the architect held to a circumstances, simply by the former’s em- general duty said to be justified barking upon undertaking. Restate- by the existence of his over the contractor. (Second) ment of Torts 324A §§
375 (1965).10 Supreme imposed power necessary Our Court has to create a new and a the requirement, however, that a cause of new cause of action in the circumstances negligence action for alleged, does not exist in such where Supreme the Court of Texas circumstances unless the affirmative under has established and never contrary revoked taking pursued is for the benefit of the one legal principles, being applicable there injured by and, negligent performance; statute which either authorizes the action requirement additional injured that the or principles. otherwise disestablishes such person must have injury suffered not from State, Refining Humble & v. Oil Co. 158 merely but from his reliance 1942, (Tex.Civ.App. S.W.2d 336 — Austin upon the undertaking. Savings Colonial ref’d). writ It is our under the com Taylor, Association v. (Tex. 544 116 S.W.2d decisis, mon law doctrine of stare as it was 1976). Given the by ap- made court, of the trial to follow the pellee, it would be pure conjecture and Supreme decisions of Court of Texas therefore unreasonable for us to conclude directly (1) which are on point, viz. If the appellee intended plead such a cause of action is not maintainable pleading without action. While we would missing assume a contract, proving gist of element any cause of action inartfully the action is for breach of the pleaded, we do not believe we can reason nonfeasance, by either malfeasance or it is ably every assume element of a cause of substance an action for action antithetical to the pleadings. contract; performance of the International
With respect
Printing
then to
Pressmen & Assistants’
alle
Union
gations
negligence,
Smith,
(2)
we
supra;
hold that
its alle
a suit for breach of con
gations did not invoke a
may
rule of substantive
not be
per
maintained
a
law, applicable
circumstances,
contract;
to the
son who
is not a
rule vests in
appellee
right
a
impos
George, supra;
Jones v.
Valley
Carruth v.
es
the defendant
a corresponding Ready-Mix
Co.,
if,
supra;
Concrete
alleged,
impos
circumstances
the law
es no duty upon
pro
the defendant for the
As an additional ground for our
tection
plaintiff, any
act or omission
holding
allegations have not
by the defendant does not amount
to ac
invoked a rule of the substantive law which
negligence.
tionable
Light
Denison
& Pow
places
right,
a
and in
Patton,
621,
er
v.Co.
154
540
S.W.
corresponding duty, we cite the proper role
(1913).
court,
this
appellate
intermediate
insofar
requests us to create a new foregoing
We believe the
established
of the kind contended for by appellee.
principles
This
possibility
defeat the
Court
not
judicial
exercise the
action,
raw
injury,
for
economic
said
provides:
10. Section
involving
323
injury
ment in cases
economic
physicаl
Ajax
Mfg. Corp.
harm.
Hardware
undertakes, gratuitously
One who
or for con-
Corp.,
(2nd
v. Industrial Plants
181
sideration,
569 F.2d
to render services
to another
Ball, Hunt, Hart,
1977);
Cir.
Roberts v.
Brown
recognize
necessary
which he should
as
person
Baerwitz,
Cal.App.3d
Cal.Rptr.
57
protection
things,
of the other’s
(1976);
Co.,
Holding
Abel
subject
Inc.
Amer.
liability
physical
to the other for
N.J.Super.
Dist. Tel.
resulting
A.2d
harm
from his failure to exercise
Greenfield,
Schwartz v.
Stein & Weis-
undertaking,
reasonable care to
his
(a)
inger,
if
90 Misc.2d
N.Y.S.2d 582
failure to exercise such care increas-
Taylor
imposed liability
harm,
(b)
es
case cited above
the risk of such
the harm is
fire,
by
clearly
suffered
for destruction of a house
case
because of the other’s
reliance
physical
undertaking.
plaintiffs
“thing.”
harm
imposes
imposed
important
Section 324A
That case also
condition
similar
physical
person
undertaking
harm suffered
that the defendant’s affirmative
third
when
actor,
circumstances,
plaintiff.
in similar
undertakes
benefit of the
We are not
Taylor opinion
to render services fоr another.
informed
whether
By analogy,
suppose,
encompasses
some
have al-
courts
relevant cause of action
economic
recovery
theory
injury.
lowed
under the
of the Restate-
Rolland,
arise
virtue of
duty imposed
in the Co. v.
218 Va.
ty,
county
appellant’s
“residence.”
placed
under a
imposed by law to
perform without
functions
PHILLIPS,
Justice,
Chief
dissenting.
as they
affect
contractor. The
It is
for
difficult
me to understand how
stop
architect to
the work alone is
hold,
law,
can
majority
as matter
tantamount
to a power of economic life
that an
responsible
architect who is
or death over the contractor.
It is only
directing
building project
just
is immune
authority,
exercised in
such
all
liability
tort
relationship, carry
to a
legal
contractor whose work
commensurate
responsibility.
he is supervising.
especially
This is
so
where
impression
the case is one of first
in
also,
See
v. John Morris
Conforti
C.
Associ
Texas and the better reasoned cases in oth-
ates,
N.J.Super.
175
ly, a cause of action tort was stated
appellee’s petition venue proper County.
Travis
Because I appellee properly find that tort,
stated a cause of action I need not
consider appellee’s contract claim for venue
purposes. Nevertheless, is well estab plaintiff,
lished that a good who in faith joinable against
asserts claims the same de
fendant, can maintain venue all those county
claims in a proper where venue is Valley one claim. Brazos Harvestore
Systems,
Beavers,
Inc. v.
(Tex.Civ.App. Tyler dism’d); writ — Middlebrook Bradley v. David Manufactur
ing
(rev’d 1981).
Appellee has shown itself to be within
subdivision 4 of article 1995. Venue as to against
Continental’s claim Bernard John
son is proper in County. Travis Conse
quently, a severance Continental’s
claim the other defendants is not
necessary. Such a decision would serve to
further our general policy state’s of avoid
ing a multiplicity suits. Boyd v. San Bank,
Antonio National
(Tex.Civ.App. 1943, writ); Antonio — San Willson, Stevens Tex. 39 S.W.2d CRAWFORD, al., Appellants,
Glacier et INCORPORATED,
PULLMAN et
al., Appellees.
No. C2939. Texas,
Court of Appeals (14th Dist.).
Houston
Feb. Levit, Bel-
Abraham Levit and Soffar laire, appellants.