*2 BISSETT, Before KENNEDY and GON- ZALEZ, JJ. Prac- 17.56 of
OPINION
Section
Act states
tices
that:
BISSETT, Justice.
brought
alleges
action
a claim
[a]n
This is
venue case. Rick Heinz
subchap-
for relief under
17.50 of this
brought
suit in the 267th District Court
may
ter
commenced
County against Champlin
Petrole-
*3
person
against
which the
whom suit
alleging a
um
cause of action
brought
...
fixed and
has a
dаmages
of
and
in violation
breach
contract
of
the time
suit is
business at
§ 17.41
of
COM.CODEANN.
TEX.BUS. &
brought
....
(Vernon
seq.
Supp.1982-1983)
et
herein-
jury
found
“business
Act.”
“Deceptive
after the
Trade Practices
was,
(appellant)
defendant
more or less
Champlin
Company, hereinafter
Petroleum
form,
regular
actually
and
con-
“appellant,”
plea
privilege
called
filed
County,”
that the
ducted Victoria
and
county of
to be sued in Tarrant
(appellant) had a
and es-
“defendant
fixed
registered
agent,
residence of its
in Victoria
tablished
Heinz,
foreign
Rick
herein-
corporation.
County.” The
to
“em-
jury failed
find that
“appellee,”
a controvert-
aftеr called
filed
powers from the de-
ployers with broad
ing plea alleging
proper
that venue was
(appellant) actually
and
fendant
resided
provisions
County.”
worked Victoria
art.
1995
TEX.REV.CIV.STAT.ANN.
§
§§ 14,
(Vernon 1964)
27
17.56
and under
Appellant challenges the
and factu-
Tri-
sufficiency
support
of the evidence to
al
response
jury's
jury.
al was to a
In
to the
considering
In
a “no
jury’s findings.
issues,
special
the trial
answers to the
point
or
evidence”
evidence”
“insufficient
judgment overruling appel-
court entered
error, we will follow the well established
plea
sustaining
privilege
lant’s
and
ven-
forth
test set
in Glover v. Terns General
County.
We
ue Victoria
reverse.
400
Indemnity Company, 619 S.W.2d
Alviar,
(Tex.1981);
and Garza
According
appellee’s
this
pleadings,
(Tex.1965).
S.W.2d
merits,
case when tried on the
will involve
(a
interpretation
of a written contract
question of
We first consider the
wheth
agreement)
appellant and
farmout
between
agency
representa
or
appellant had an
er
appellee,
together with
resolution
County.
v. Shell
tive Victoria
Rouse
material
whether or not
made
(Tex.Civ.
Company,
The with sufficient to meet presented by evidence the stan- par ties dards Milligan shows that established and in was in the busi Rouse maintaining producing gas; it, County oil and venue in Victoria lessee, operated owned and under gas subdivision 27. wells located on the gas McFaddin Ranch and 2 We nоw consider whether there was wells located on the Morrow Ranch. All jury’s evidence sustains finding which wells are located in County, Victoria Texas. had “a fixed and established gas produced The from the wells was sold place County.” of business Victoria to Tennessee Gas Transmission Company. Appellee, affidavit, cоntroverting gas gathered by appellant was in two alleged: lines, gas different one of which was con “... Plaintiff shows that Defendant directly nected into Tennessee Gas Trans maintains a field office on the McFaddin line, mission Company’s and the other into Ranch Victoria from Pipeline a Houston Company line where it which sоme of their business activities on transported to a Tennessee Gas Trans pres- such ranch are conducted ... mission gas compres line. Two ence of said field office allows Plaintiff Ap sors were located on McFaddin Ranch. to maintain venue in un- pellant had two who took care der TEX.BUS. & COM.CODE ANN. from the wells. § 17.56.” duties, When asked to describe their one of appellant’s witnesses testified: term “fixed and established
“They
property every day,
tour the
do
of business” is not defined in the
repairs
required,
mechanical
are
Therefore,
what
ad-
necessary,
rates as
just flow
service the
given
the term is not one of art and is to be
ordinary,
its
common
Al
orders
customers are received
construction.
where
fixed,
continuously
though we
to find a Tex
at a
have been unable
and attended
permanent, ‘regular,’
place;
as case which has
the term under
‘established’
defined
Act,
short,
of the business.
‘branch’
******
term has
been construed
the federal
on
Summarizing
courts
several occasions.
‘regular
“If
is a
this [field office]
these holdings,
merely
it has been held that
business,’
then so is
established
doing
enough
business in a
is
garage,
of a
or of a
erection
house
establish “a fixed and
machine in a
installation
one
build-
business”; something
required;
more is
ing,
‘regular’
the words
and ‘estab-
appear
legally
must
is
defendant
meaning
no
lished’ have
and must
engaged
carrying
part
substantial
wholly ignored.”
ordinary
its
business on a
The above mentioned federal cases
physical
in a
basis
location within
coun
all hold that a fixed and established
phrase
ty;
permanent,
denotes a
contin
party
is a
where a
uous,
substantial office for
busi
in a
engaged
carrying
continuous
operations. Tyler
Ludlow-Saylor
ness
part
ordinary
manner a substantial
its
Company,
U.S.
S.Ct.
Wire
significant
business,
on
requires
(1914);
ployee of appellant, and occupied was not we hold that there is ap- no evidence that by any employee “approximately ninety pellant had a fixed and percent of the time.” It is uncontradicted business in Victoria County under Sеction building placed on the McFad- 17.56 of the din Ranch “for the convenience of gau- appellant’s We sustain “no evidence” gers to make their reports and points. Therefore, we do not reach its telephone in reports.” their There is no insufficiency “factual points. evidence” any evidencе that salesmen any contacted appellant’s building. at the judgment of the trial court is RE- undisputed It is none of judgment VERSED and is here REN- business with third was conducted DERED that the cause be transferred to a out building. evidence, when district court Tarrant Texas. viewed its entirety, conclusively shows that the building is not a “business office” KENNEDY, J„ dissents. kind, “production but is a facility,” and nothing more. KENNEDY, Justice, dissenting. building was not a struc- I respectfully dissent. I believe that the ture. There is no evidence that it was ever majority opinion incorrectly has evaluated given recognition being place of busi- *6 the law and the facts of this case concern appellant. Moreover, respeсt with ing application of TEX.BUS. & COMM. negotiation upon contract § (Vernon CODE ANN. Supp.1983). 17.56 founded, which the suit is testi- that, opinion, majority its states fied: applied test to determine “[t]he “Now, your this is written contract whether a defendant has a fixed and estab Champlin, you
with negotiated it in Cor- place provision business under the pus signed Christi and it by you was § Deceptive of 17.56 of the Trade Practices Corpus by Champlin Christi and in Hous- virtually Act determining is identical for ton after it approved was in the Houston whether it had ‘an agency representa office, right? tive’ under art. subdivision 27.” I Yes, A sir.” disagree. legislature Had the intended for allegation The mere by appellee in Deceptive venue under the Trade Practices controverting affidavit that cases, Act to be the same as in other civil “maintains a field office” Victoria generally, they Coun would provided not have ty is no evidence that it special constitutes a fixed Deceptive venue section to the plaсe and established business Victo Trade Appeals Practices Act. Courts of County purview ria within the required give De are Trade ceptive Trade Practices If Act. this “field Practices Act the most liberal construction office” is a “fixed and established comprehensive and application possible. business” of Christi, under the evidence Corpus First Title hearing, adduced at the every Cook, then oil and Inc. v. 625 (Tex.App.— S.W.2d 814 gas producer in pro- this state who dism’d). has a Fort Worth writ 550 agree provisions “fixed and purposes
While I
term
for
under the
venue
§
has not been
business”
17.56.
state, I
defined
the Courts of
do
this
every in-
acknowledge
I
that not
would
comрelled
feel
a 1914 United
follow
in a
stance of oil
Supreme
States
Court
and a 1922 U.S.
case
Decep-
give rise to venue under
would
Michigan.
case
Other
District Court
from
case
Trade Practices Act. Each
must
tive
jurisdictions
term
which have
defined
facts to deter-
viewed on its individual
“place
applied
the “notо
business” have
proper
venue is
mine whether
riety
This test
test”.
is that
However,
given
taking
Act.
the definition
mercan
business is where commercial and
logical
majority
to its
con-
the term
on,
prod
tile transactions are carried
clusion,
multi-mil-
a defendant
have a
could
they
made and
are
ucts are
from which
facility prоduction type
lion dollar
distributed, the
sold or
where work
subject
and not be
to venue
generally,
occasionally
and not
done.
long
as
as no
was done
“business”
Corp.,
Reporter
Re
Products
7 U.C.C.
P.S.
facility
“production”.
I
only
from that
but
(2d
(E.D.N.Y.1970)
'd.,
411
aff
The term and established patent purposes business for venue
infringement cases has been defined systematic regular continuous
where a activity
course of business is carried Inc. v.
from a location. Watsco F.Supp. 38 Henry Company, Valve BANK, Appellant, ADDISON (S.D.N.Y.1964); Corp. Railex v. Ma White (E.D.N. Company, chine TEMPLE-EASTEX, INC., Appellee. Y.1965). No. 08-83-00130-CV. Giving plain meaning its as it is the term that, 17.56, I hold found would Appeals under venue El Paso. Act, a fixed and established *7 4, Jan. 1984. is one where the busi- party is conducted on a continu- Rehearing Feb. 1984. Denied permanent from a locаtion. ous basis Error Application for Writ of cause, I Reviewing the evidence in this March in the business find that the gas; appellant has producing oil and oil and Victoria producing
been years; appellant has thirty
County for facility in located
an elaborate $400,- approximately at County valued two appellant has had
000.00; county for a employees in the that, I under these years. feel
number has fixed and estab-
facts, of business Victoria