OPINION
This is a venue case. The Pleas of Privilege of Defendants Bevill, Breslar & Schul-man Government Securities, Inc., [hereinafter called “Bevill”], Art Frey and Edward E. Rotenberry were sustained and the cause of action was transferred to Harris County. We affirm in part and reverse and render in part.
Portland Savings & Loan Association, [hereinafter “plaintiff”], filed suit in the District Court of Nueces County, Texas, against Bevill, Frey and Rotenberry to recover damages for аlleged misrepresentations of material facts occurring during the sale of certain securities. All defendants filed pleas of privilege. Bevill, a nonresident of Texas, is a New Jersey corporation, and is a broker and dealer in the business of buying and selling securities. Frey and Ro-tenberry are salesmen for Bevill, who reside in Houston, Texas.
Plaintiff controverted the pleas of privilege. It asserted that venue was sustainable in Nueces County, Texas, under the provisions of Subdivisions 3 and 29a of Tex. Rev.Civ.Stat.Ann. art. 1995 (1964). It further claimed that venue was maintainable in Nueces County under the provisions of Tex.Bus. & Com.Code § 17.56 (Supp.1980).
On December 12, 1980, a hearing was had on the pleas of privilege of all three defendants. The testimony adduced showed that the alleged misrepresentations of a material nature occurred in telephone conversations by defendants Frey and Rotenberry made from Harris County to San Patricio County, Texas. Plaintiff’s principal place of business is located in San Patricio County; it also maintains a business office in Nueces County. Ben Eastland, the managing officer of plaintiff, testified that defendants Frey and Rotenberry had called him personally several times at his home in Nueces County in regard to the involved securities.
Bevill, in answer to requests for admissions served upon it, in effect, admitted: 1) Bevill is not licensed to do business in Texas; 2) Bevill does not have an agent for service of process in Texas; 3) Bevill is not incorporated in Texas; 4) Bevill does not have a place of business, or office, in Texas; 5) Bevill does not have a certificate of authority to transact business in Texas; 6) Bevill is not registered as a dealer with the Texas Securities Commission; and 7) Bevill is not a resident of Texas.
At the conclusion оf the hearing, the trial court sustained the pleas of privilege of all three defendants and transferred the cause to the District Court of Harris County, Texas. Plaintiff has appealed.
Findings of fact and conclusions of law were not requested or filed in this case. The trial court’s judgment sustaining the pleas of privilege should therefore be affirmed if it can be upheld on any legal theory that finds support in the evidence.
Bishop
v.
Bishop,
Plaintiff first cоntends that the trial court erred in sustaining Bevill’s plea of privilege because: 1) Bevill, a foreign corporation, is not a resident of Texas and was not such a resident on the date suit was filed; 2) Bevill “has no venue rights” under Tex.Rev.Civ.Stat.Ann. art. 1995, and cannot “assert” a plea of privilege; and 3) Bevill’s plea of privilege is “fatally defective in that *244 it does not state a county in Texas to be the county of residence of said Apрellee (Be-vill).” We agree.
The courts of Texas have frequently followed the rule that a nonresident defendant has no venue rights to assert under Article 1995. This rule stems from the language of Article 1995, which provides: “No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases: ...” [Emphasis added]. The rule, as stated in McDonald, provides:
“. . . One having no residence in Texas, or a foreign entity without a registered office or place of business in the state, has no right to be sued in any particular county unless the venue of the action is controlled by some mandatory provision of the statute.” 1 McDonald: Texas Civil Practice, sec. 4.03.2 (1981).
In
O. F. Mossberg & Sons, Inc. v. Sullivan,
“[Thе manufacturer] was unable to state, and did not allege in its plea of privilege a county of residence, thereby failing to meet the requirement of Rule 86, Texas Rules of Civil Procedure, that ‘A plea of privilege to be sued in the county of one’s residence ... ’ [Emphasis added]. [The manufacturer’s] plea of privilege was fatally defective in having failed to meet this requirement, and due exception having been takеn to the plea, the trial court was compelled to strike the plea.” Id. at 956.
See also
Dealer Service Plan, Inc. v.
Chabarria,
In
Peacock v. Bradshaw,
Bevill failed to allege a county of residence in Texas in its plea of privilege as required by Rule 86, T.R.C.P. This deficiency was timely brought to the attention of the trial court. The evidence presented at the venuе hearing showed that Bevill is a New Jersey corporation, with no place of business or registered agent in Texas. Defendant Frey testified that during the tenure of his employment with Bevill as a salesman, he was “based” in Houston, Texas. This testimony is not sufficient, as argued by Bevill, to establish residence of Bevill in Harris County, Texas. For venue purposes, the residence of a corporation may be either the place designated in its charter as its principal place of business, where the principal place of business is actually located or where its registered office and agent is located.
Ward v. Fairway Operating Company,
*245 Venue was proper against nonresident defendant Bevill in Nueces County, Texas.
Plaintiff also contends that it is entitled to maintain venue in Nueces County as to all defendants under Tex.Bus. & Comm. Code Ann. [hereinafter “DTPA”] § 17.46 where “the defendant or an authorizеd agent of the defendant solicited the transaction made the subject of the action.” That section provides that venue is proper under the DTPA “in a county in which defendant or an authorized agent of the defendant solicited the transaction made the subject of the action at bar.” But, in order to establish venue in Nueces County under that particular section of the DTPA, plaintiff was required to initially
allege
facts sufficient to shоw that it was a “consumer” of “goods” or “services” within the definitions set out in the DTPA § 17.45 (Supp. 1980-81), and to
prove
that the solicitation made the subject of the action took place in Nueces County. This, it did not do. Concerning the necessary allegations in order for the DTPA to apply, see
Farmers and Merchants State Bank of Krum v. Ferguson,
Plaintiff’s pertinent allegations concerning a violation of the DTPA read:
“. . . Defendants offered and sold securities to Plaintiff by means of misrepresentations and untrue statements of material fact and/or omissions to state a material fact or facts necessary in order to make statements made not misleading. ...”
This petition alleges a claim for relief from misrepresentations occurring during the sale of securities. It does not allege that plaintiff is a “consumer” of “goods.”
A “consumer” is one who
purchases or leases goods or services.
DTPA § 17.45(4) (1980). “Goods” arе tangible chattels or real property purchased or leased for use. DTPA § 17.45(1) (1980). As stated by Chief Justice Greenhill in
Riverside Nat. Bank v. Lewis,
It is asserted by plaintiff that the language contained in Plaintiff’s First Amended Original Petition is sufficiently broad to encompass a claim for relief from the sale of “services” as well as the sale of “goods.” We do not agree. There are no allegations regarding “services” in the language used in the petition. Although “services” may have been a part of what defendants actually sold, the plain reading of the petition reveals that it only alleges a claim for relief from a sale of securities. See Riverside Nat. Bank v. Lewis, supra.
In regard to the proof necessary under the DTPA, the evidence adduced at the venue hearing was that the alleged misrepresentations occurred in phone calls made by defendants Frey and Rotenberry from Harris County to plaintiff’s principal place of business in San Patricio County. The only contacts defendants had with Nueces County were that a couple of phone calls had been made to the home of Mr. East-land, one of plaintiff’s officers. These *246 phone calls apparently relayed only market information concerning the securities. Applying the appropriate standard of review, there was some evidence to support the trial court’s implied finding that no solicitations were made in Nueces County. Therefore, the DTPA does not apply to the transactions made the basis of this suit insofar as venue is concerned. Merchants State Bank of Krum v. Ferguson, supra; Smith v. Baldwin, supra. The trial court properly held that plaintiff failed to prove venue under Section 17.56 of the DTPA. Plaintiff’s seventh, eighth and ninth points of error are overruled.
Bevill argues that the trial court properly sustained its plea of privilege because Subdivision 30 of Article 1995 is a mandatory provision which authorized the transfеr of the cause as to it to Harris County. It further argues that such a transfer is mandated by Section 17.56 of the DTPA. We disagree.
It is true that a mandatory venue provision may be urged by a nonresident to transfer venue.
O. F. Mossberg & Sons, Inc. v. Sullivan,
supra;
Kirshenbaum v. Smith,
The original petition was filed in this case on November 21, 1979. Section 17.56 of the DTPA in effect on that date provided:
“An action brought which alleges a claim to relief under Section 17.50 . .. may be commenced in the county in which the person against whom the suit is brought resides, has his principal place of business, or has a fixed and established place of business at the time the suit is brought or in the county in which the alleged act or practice occurred or in a county in which the defendant or an authorized agent of the defendant solicited the transaction made the subject of the action at bar.” [emphasis added].
The important words in Section 17.56 for the purpose of deciding whether venue is permissive or mandatory are that venue “may be commenced” in a certain county under this venue provision. Our courts have repeatedly distinguished between the mandatory language of “shall” or “must” in a venue provision and the permissive language of “may” in such provision.
Langdeau
v.
Burke Inv. Co.,
supra;
Bachus v. Foster,
As a nonresident defendant, Bevill cannot use the permissive venue provision of Section 17.56 of the DTPA as a ground to be sued in Harris County. Therefore, since Section 17.56 of the DTPA does not itself contain аny mandatory venue provisions, Subdivision 30 of Article 1995 is inapplicable.
Concerning venue as to all defendants, plaintiff further complains that the trial court erred in sustaining the pleas of privilege because each of the defendants is a necessary party to its suit, and since venue *247 as to the defendant Bevill. is proper in Nueces County, venue as to the defendants Frey and Rotenberry is proper in Nueces County pursuаnt to the provisions of Subdivision 29a 1 of Tex.Rev.Civ.Stat.Ann. art. 1995 (1964). We disagree.
Plaintiff, in order to maintain venue against the defendants Frey and Rotenber-ry under Subdivision 29a, must allege and prove 1) the venue facts which show that the suit is maintainable where brought against at least one defendant and 2) the remaining defendants whom he seeks to hold under Subdivision 29a are necessary parties to the suit within the meaning of that Subdivision.
Loop Cold Storage Co.
v.
South Texas Packers, Inc.,
“. . . a plaintiff who relies on Subdivision 29a to maintain venue . . . must not only allegе the facts which make such defendant a necessary party to the suit within the meaning of that Subdivision, but must also prove by independent evidence all of such facts except those [a] which are taken as admitted under the pleadings or [b] which are established as a matter of law by the allegations of the petition.”
See also
First City Mtg. Co. v. Gatling,
In determining whether parties are necessary under Subdivision 29a, we must decide “if the complete relief to which plaintiff is entitled under the facts of the case as against the defendant properly sua-ble in that county can be obtained only in a suit to which both defendants are parties.”
Union Bus Lines v. Byrd,
In the present case, plaintiff has used three tortfeasors for misrepresentations which allegedly occurred in the sale of securities. Proof offered in the plea of privilege hearing showеd that the defendants Frey and Rotenberry were at all times acting as salesmen and agents of the defendant Bevill in their dealings with the plaintiff. Both the principal (Bevill) and the agents (Frey and Rotenberry) would be liable to plaintiff for any tortious acts committed during an agency relationship.
Dr. Salsbury’s Laboratories v. Bell,
The only evidеnce offered by the plaintiff to show the nonresidency of Bevill was the answers to requests for admission propounded to Bevill. These requests were not propounded to defendants Frey and Ro-tenberry, and cannot be used against them since answers to requests for admission may be used only against a party making the admissions. There was no competent evidence as far as Frey and Rotenberry were concernеd which showed that Bevill was a nonresident of Texas.
Gonzales v. Blake,
The plaintiff in this case is able to get complete relief from defendant Bevill; *248 therefore, Frey and Rotenberry, the other party defendants, are not necessary parties under Subdivision 29a of Article 1995. The trial court properly transferred the cause of action against Frey and Rotenberry to their residence county, Harris County. Plaintiff’s tenth point is overruled.
Since we sustain plaintiff’s first, second, third and fourth points of error, there is no need to consider its fifth and sixth points wherein it asserts venue as to Bevill under Tex.Rev.Civ.Stat.Ann. Art. 1995, subd. 3 (1964). We have considered the remaining points of error; they are overruled.
Plaintiff argues that the splitting of his lawsuit into two parts would greatly hinder the administration of justice in this action. We are sympathetic to its argument, but as the Supreme Court stated in Loop Cold Storage Co. v. South Texas Packers, Inc., supra, “This is one controversy which perhaps could most fairly and expeditiously be tried as one lawsuit. But the Texas venue law does not leave our decision to considerations of better administration of justice.” Id. at 108.
The action against the defendant Bevill is severed from the action against the defendants Frey and Rotenberry. The portion of the trial court’s judgment which sustained the pleas of privilege of the defendants Frey and Rotenberry to be sued in Harris County, Texas, is sustained. The portion of the trial court’s judgment which sustained Bevill’s plea of privilege and ordered the cause as to it transferred to the District Court of Harris County, Texas, is reversed, and judgment is rendered that Bevill’s plea of privilege be and it is hereby overruled. The costs of this appeal are apportioned and assessed 50% to plaintiff and 50% to the defendant Bevill.
CAUSE IS SEVERED and the trial court’s judgment is AFFIRMED IN PART and is REVERSED AND RENDERED IN PART.
OPINION ON MOTION FOR REHEARING
On motion for rehearing aрpellee Bevill moves this Court to set aside its prior judgment and affirm that portion of the trial court’s judgment which sustained its plea of privilege. Specifically, Bevill complains that we erred in holding “that venue under Section 17.56 of the Deceptive Trade Practices Act [hereinafter “DTPA”] is permissive.” Bevill’s argument on the mandatory/permissive nature of the DTPA merits further discussion.
Bevill contends that venue under Section 17.56 is mandatory because the DTPA creates a remedy not available to consumers at common law, and under the rule set out in
Mingus v. Wadley,
“. . . where the cause of action and remedy for its enforcement are derived not from the common law but from the statute, the statutory provisions are mandatory and exclusive, and must be complied with in all resрects or the action is not maintainable.”
The above rule sets out the power to be exercised by the trial courts of our state in certain special proceedings. District, county and justice courts are normally described as courts of general jurisdiction. But when these courts exercise power over a special matter conferred on them solely by statute, they are characterized as сourts of limited jurisdiction and must follow strictly the exclusive and mandatory provisions of the statute’s procedural requirements. 1 McDonald Texas Civil Practices sec. 1.03 (1981). Examples of these proceedings are suits to remove the disabilities of an infant,
Cunningham v. Robison,
An action under the DTPA is not such a special proceeding. As stated in
Pennington v. Singleton,
In
Evans v. American Pub. Co.,
“. . . There is a well-marked line of distinction between ordinary suits or actions, which are controlled by the venue statutes, and those special proceedings authorized by statute, which do not come within that class. The latter are illustrated by condemnation proceedings, workmen’s compensation claims, divorce cases, and the like. These are not ordinary suits or actions, and exist in substance and procedure only through the statute. That the statute regulates a cause of action such as libel, death action, and the like, is no reason for holding the same to be a special statutory proceeding at all. It is still a suit or action, governed by the usual court proceedings, cognizable in the ordinary courts, subject, of course, to all statutory requirements including venue.”
The above quote aptly describes the situation under the DTPA. One bringing a cause of action for misrepresentation through the DTPA would have had a similar cause of action at common law absent sоme of the legislative refinements to make the action available to present day consumers. The DTPA is not solely a creature of statute, subject to the rules of Mingus v. Wadley, supra. The motion for rehearing is overruled.
Notes
. “Whenever there are two or more defendants in any suit brought in a county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.”