Ramcon Corp. v. American Steel Building Co.

668 S.W.2d 459

Tex. App.

1984

Check Treatment

RAMCON CORPORATION, Louis Rochester and Scott Moore, et al., Appellants, v. AMERICAN STEEL BUILDING COMPANY, INC., Appellee.

No. 08-83-00336-CV.

Court of Appeals of Texas, El Paso.

March 14, 1984.

459

clear that the child was in Cuba. In the absence of personal jurisdiction over Appellant, the court may not enter any order binding on both parties regarding division of property outside the state nor decree the managing conservatorship of a child.

Fox v. Fox, 559 S.W.2d 407 (Tex.Civ.App.-Austin 1977, no writ). In , where there was no personal jurisdiction over the wife in a divorce filed by the husband, it was held that the trial court had no jurisdiction to adjudi-cate conservatorship where the marriage was not celebrated in Texas, the children were not before the court, and there was no proof the children had ever been to Texas. In the case before us, there is no evidence that the marriage was celebrated in Texas or that the child had ever been to Texas. It is clear the child was not before the court, that the court did not have per-sonal jurisdiction over the Appellant and that there was no evidence that any of the property divided was in the state. Appellant‘s points of error are sustained.

The judgment is reversed and the cause remanded for a new trial for the reasons stated and in the interest of justice. The cause shall be abated in accordance with the Soldiers’ and Sailors’ Civil Relief Act, supra.

Michael C. Steindorf, Carol Kirk, Turpin, Smith, Dyer & Saxe, Midland, for appellants.

Douglas J. Johnston, Philip J. Kochman, Crady & Peden, Houston, Robert E. Young, Tuttle, Sheehan, Young & Smith, Dallas, for appellee.

OPINION

WARD, Justice.

This purported interlocutory appeal is from an order dated October 25, 1983, sus-taining the plea of privilege filed by a third-party defendant, severing that third-party action and transferring the same to a district court in Harris County. A motion to dismiss the appeal for want of jurisdic-tion has now been filed by the third-party defendant based on the terms of the 1983 Amendment to the General Venue Statute. We sustain the motion and dismiss the appeal.

The trial court made findings of fact and conclusions of law. The following events are noted. On July 29, 1982, the primary suit was brought in Midland County by Tiger Charter Corporation against Ramcon Corporation, Scott Moore and Louis Roch-ester for breach of a construction contract, breach of warranties, misrepresentation and fraud. It was not until July 22, 1983, that Ramcon Corporation and Scott Moore filed their third-party cross-action for con-tribution and indemnity against American Steel Building Company, Inc. American Steel was served with such cross-action on August 30, 1983. On September 12, 1983, American Steel Building Company, Inc. filed its plea of privilege as to the third-par-ty cross-action praying that the cause as to it be transferred to Harris County, its county of residence. On September 19, 1983, Ramcon Corporation and Scott Moore filed their controverting plea stating that Article 1995 as amended on September 1, 1983, applied and that venue was proper in Midland County under various sections, particularly Section 4(b). That section pro-vides that if venue is proper in the main action, then the court has venue on all cross-claims and third-party claims proper-ly joined under the Texas Rules of Civil Procedure. The venue of the main action was in Midland County. On September 30, 1983, American Steel filed its first amended plea of privilege and motion to transfer. The plea of privilege relied upon the terms of Article 1995 before its amendment, be-cause it was in effect at the time American Steel was made a party by the third-party action filed against it. The motion to transfer was based on various other grounds. Hearing with live testimony was held on October 17, 1983, and as previously pointed out, the court entered an order sustaining the plea of privilege, severed out the third-party cross-action and trans-ferred it to a district court in Harris Coun-ty. The trial court filed the following con-clusions of law:

This venue question is governed and must be determined by venue law and procedure, to-wit: Article 1995 TEX.REV.CIV.STAT.ANN. and T.R. C.P. Rule 86 as they existed prior to their amendment effective Septem-ber 1, 1983.
Article 1995 Section 4 subparagraph (b) as amended effective September 1, 1983 is not applicable to this case.
The facts as stated above do not show that Cross-Plaintiff‘s cause of action or a part thereof arose in Mid-land County and Cross-Plantiff [sic] has thus failed to carry its burden under Art. 1995(23) to show that ven-ue exception applicable.
Art. 1995 TEX.REV.CIV.STAT.ANN. Section 1 as amended effective Sep-tember 1, 1983 is not applicable to this case.
Cross-Defendant‘s Plea of Privilege must be sustained, the Cross-Plain-tiff having failed to carry its burden of proof to show that any venue ex-ception under Art. 1995 as it existed prior to September 1, 1983 is applica-ble to this case.

Ramcon Corporation perfected its attempt-ed appeal from the order by filing its ap-peal bond on October 25, 1983.

Section 3 of Amended Article 1995 (1983 Tex.Sess.Law Serv. ch. 385, sec. 3 at 2124-25) provides:

This act takes effect September 1, 1983, and shall not apply to pending appeals on venue questions. For the purposes of appeal on venue questions pending prior to September 1, 1983, the former law is continued in effect.

In the Original Proceeding in Mandamus in

Graue-Haws, Inc. v. Fuller, 666 S.W.2d 238 (1984), this Court had occasion to con-strue the quoted part of the statute. There the hearing on the plea of privilege oc-curred after September 1, 1983, and the plea of privilege was overruled the trial court holding the September 1, 1983, amendment controlled the disposition of the plea of privilege. In that case, the plaintiff relied on the exceptions set forth in what originally was Section 23, Article 1995, as a basis for holding venue in Reeves County. That same wording was carried forward in the new amendment. Again, in that case, the relator argued that the language of the amendment did not make it applicable to venue matters pending on September 1, 1983. The majority of this Court disagreed and held that the legislature made only one exception to the applicability of the new statute when it stated that the act “shall not apply to pending appeals on venue questions.”

American Steel now files its motion to dismiss the present appeal for want of jur-isdiction on the ground that Article 1995 and Rule 87, Tex.R.Civ.P., both as amended on September 1, 1983, provide that no inter-locutory appeal shall lie from the determi-nation of the venue question. In the

Graue-Haws case, this Court also held that the trial court‘s ruling on a plea of privi-lege shall be reviewed only when the final judgment reaches the Court.

Ramcon, in its response to the motion to dismiss the appeal, argues that it is faced with an untenable position should the inter-locutory appeal be dismissed. Ramcon would not only be forced to abide by an order sustaining a plea of privilege which was incorrectly decided under the old stat-ute, but would be faced with two trials. Section 4(d)(2) of the new statute provides as follows:

On appeal from trial on the merits, if venue was improper it shall in no event be harmless error and shall be reversible error. In determining whether venue was or was not proper the appellate court shall consider the entire record, including the trial on the merits.

Ramcon argues that it is apparent that there is now uncorrected reversible error already present in the case and that the whole trial will be an exercise in futility, a result which was not intended by the legis-lature.

Ramcon further argues that since the trial court has decided the plea of privilege under the old statute, that fairness now dictates that this Court take appellate juris-diction under the old statute and render its decision on the merits of the plea of privi-lege.

Regardless of any merits as to Ramcon‘s position on the venue question, we do not reach those matters, as the question before us is one of our jurisdiction only. We hold that this was a purported appeal taken after September 1 and that no such inter-locutory appeal is now permitted.

While this Court does not have appellate jurisdiction of the interlocutory order, it has now been given a much broader juris-diction and power than before in manda-mus. Article 1824 amended June 19, 1983, Tex.Rev.Civ.Stat.Ann. If Ramcon Corpora-tion should now seek to proceed by applica-tion for mandamus, this Court will give such a proceeding serious consideration as it will concern a matter that should be resolved at the present time.

OSBORN, Justice, concurring.

I concur in the opinion of Justice Ward. In doing so, I would note that the trial court‘s order sustaining the plea of privi-lege was entered on October 25, 1983. This Court‘s opinion in

Graue-Haws, Inc. v. The Honorable Lawrence Fuller, 666 S.W.2d 238 was not issued until January 11, 1984.

The trial court‘s order sustaining the plea of privilege is an interlocutory order over which the trial court retains jurisdic-tion until a final disposition of the case on the merits. In view of this Court‘s decision in the

Graue-Haws, Inc. case, the trial court may now determine to reconsider its interlocutory order sustaining the plea of privilege of the third-party defendant, American Steel Building Company, Inc., and if the order entered on October 25, 1983, is set aside and a new order entered overruling the plea of privilege and motion to transfer, there would be no need for this Court to entertain a petition for writ of mandamus.

STEPHEN F. PRESLAR, Chief Justice, dissenting.

I respectfully dissent from the procedure of dismissing the appeal. I would reverse the judgment of the trial court and direct the trial court to dismiss the venue cause of action.

This is a void judgment under Section 4(b) of Article 1995 as amended and effec-tive September 1, 1983. That subsection provides that venue of third-party claims is established by the venue of the main ac-tion. The court then could not entertain this plea by the third-party defendant. Be-cause there is no provision in law allowing this venue plea, the judgment is void. Stat-ed otherwise, the trial court was without jurisdiction of any venue issue attempted by this third-party defendant.

“On the appeal to the court of civil ap-peals of a cause of which the trial court did not have jurisdiction, the proper practice is not to dismiss the appeal but to reverse the judgment and remand the cause with the direction that it be dismissed.”

Fruit Dis-patch Co. v. Rainey, 111 Tex. 266, 232 S.W. 281 (1921). See also, ; ; ; .

I agree with the majority that the trial court was in error in trying this matter under the terms of Article 1995 prior to its amendment effective September 1, 1983. In the

Graue-Haws, Inc. case mentioned by the majority, everything in regard to the venue plea happened prior to September 1, 1983, except the hearing. The defendant in that case was served in July and had to respond to that pleading under the old Arti-cle 1995. That was the basis of the writ-er‘s dissent in that case. In the case be-fore us, the defendant was not served until August 30, 1983, and the time for filing his plea of privilege did not arise until after September 1; it is then controlled by the amended Article 1995.

I would avoid any further delay in this matter and reverse the judgment of the trial court and remand the cause with di-rections that the trial court dismiss the plea of privilege.