*1 SCHERO, Joe E. Appellant, MANGES, Appellee.

Clinton

No. 16924. Court of Appeals Texas,

San Antonio. Feb. 1983. Rehearing Denied March 1983. White, Pollard, Margaret

William A. H. Wallis, Houston, appellant. Olney G. Adams, Antonio, Pat Maloney, Royal San Mann, Laredo, appellee. Lawrence ESQUIVEL, CANTU and Before REEVES, JJ.

OPINION

ESQUIVEL, Justice. an order overrul- appeal This is an privilege. ing Services, Inc., Patterson Patterson d/b/a (Patterson) initiated a law suit Rental Tools Joe E. *2 359 lee Manges, overruling plea privilege Clinton cause 1243 on erred in number controverting the docket of the 49th was in- Judicial District because the affidavit Zapata Court of County, opera- Texas. The of law in that it did sufficient as a matter pleading tive in cause number 1243 was state a cause of action and because it Plaintiff’s Original Third Amended Peti- exception general failed to state an tion, that, and it alleged was therein art. venue statute. Tex.Rev.Civ.Stat.Ann. period August 2, 1978 to December (Vernon 1995 Supp.1982-83). 28,1980, Hydrill Patterson delivered certain appellant we note that did At the outset tubing which was placed to be at a certain to the coun any special exceptions not file Zapata well in County. The essence of the filed controverting terclaim or affidavit cause of action alleged petition in the was By except his failure to appellee Manges. appellant that appellee Manges, Schero and affida controverting to the contents of the jointly money owed Patterson for rental of any vit at the trial level he has waived like the tubing and for wrongfully withholding appeal. the first time on complaint tubing using the same for their 90; Insur Superior Tex.R.Civ.P. Wade v. own use and benefit. Appellant Schero Co., 893, (Tex.Civ.App. ance 244 896 S.W.2d Original his First Amended Answer answer- 1951, ref’d). Appellant writ —Eastland ed Patterson’s suit aby general special points of error numbers one and Schero’s denial and a against appellee cross-action two are overruled. Manges for contribution and indemnity. We with agree appellee Appellee Manges appellant answered to waiv- controverting speaks only affidavit general Schero’s cross-action with a denial Accordingly, appellant er. final Schero’s 25, and a motion for severance. March On together two will be discussed since points 1981, appellee Manges’ motion for sever- appellant of whether they involve issue ance granted and appellant Schero’s rights by filing his venue Schero waived cross-action was ordered to be docketed as Manges. cross-claim appellee 13, number April 1981, 1243-A. On lee filed a counterclaim ap- It well settled that a pellant Schero cause number 1243-A county in a other than who institutes a suit seeking to hold Schero accountable for oth- jurisdic that of his residence submits to the er business deals between them. In re- as to all tion of the court of sponse to such counterclaim appellant Sche- growing directly out of the matters ro filed his plea privilege. After hearing suit, waives his thereby the argument of counsel receiving cer- right privilege on his to be sued insist tain joint-stipulated exhibits, hearing but a cause of of his domicile on no testimony, the court took the character asserted in a cross- of that 13, under July advisement. On Robertson, 147 Tex. Zachry action. v. 1981, the court entered overruling its order (1948); 952 Skidmore S.W.2d appellant plea of privilege result- Cook, (Tex.Civ.App. ing in this appeal. dism’d). The trial court three, point of error number ap only con any did not hear evidence and pellant raises Schero the issue of inade filed in the case. We pleadings sidered the quate required by notice as pleadings have the to assist only therefore 166-A(c). Rule 166-A(c) applies to motions appel the true nature of determining us in proceedings in summary judgments. lant Manges’ The nature of summary judgment is not now be Since by looking the claims can be determined court, 166-A(c) fore we inap this find Rule Short, pleadings. Powell plicable. Point of error number three is (Tex.Civ.App. — Amarillo overruled. in cause We have examined other and we can reach no points of error numbers one and number 1243-A Manges’ coun- appellee two but that appellant alleges that the conclusion to, wells way gas terclaim in no relates or arises out Schero for work various oil Zapata County.” appellant located Sehero’s appellee Manges for contribution and in- Manges’ answer Following us, we demnity. Under evidence before granting of his motion cross-action and appellee Manges hold that has failed to severance, the cause was docketed as show that waived his Manges filed number 1243-A. Thereafter *3 County. to be sued in Harris The court seeking counterclaim Schero his overruling erred in appellant plea Schero’s out of mutual business damages arising of privilege. judgment The of the claimed Manges in which Schero dealings is reversed the cause is hereby and Manges sought an was indebted to him. remanded with instructions to sever all or as- properties lien equitable Manges’ lee counterclaim in cause number accounting from of and an sets Schero 1243-A and transfer same to the District Schero.

Court of Harris County. counterclaim, response to CANTU, Justice, dissenting. Manges privilege. of plea filed this Schero denominated “Contro- filed an instrument majority opinion correctly disposes The of neither sets Plea” in which he out verting er- points Schero’s first three of rule general to the statutory exception any However, agree ror. I that cannot Schero’s to be sued right an absolute has Schero require final two contentions the treatment domicile, directly nor or the of his in by majority. accorded the into his his indirectly incorporates properly appellee’s In order to understand state a cause Plea” so as to “Controverting of position regard plea with to Schero’s Manges’ “Contro- of action Schero. it is to examine all of privilege necessary to show tending facts alleged Plea” verting trial court the exhibits admitted before the had, filing of his prior that Schero upon stipulations. concern- rights his of waived plea privilege, to Patter- plaintiff Schero’s answer by was received testimony ing venue. No Petition, Original son’s Third Amended and plea privilege of court on the trial against appellee Manges, in his cross-action opposing treated the the court hearing and partial liability admitted to Schero law.1 question a raising as instruments sought indemnity contribution Zachry v. relies on majority opinion The Manges Manges allegedly had been because 307, 214 Robertson, Tex. equipment supplied beneficiary of the Cook, (1948) and Skidmore he and by Patterson. admitted that Schero 1967, (Tex.Civ.App. — San engaged in numerous Manges had been that a dism’d) proposition for the gas business joint ventures in the oil than county other in a who institutes á suit further throughout Texas. Schero South jurisdic to submits that of his residence cer- with the admitted that his involvement to ail county as tion of the court of result County arose as a Zapata tain well subject of the out growing directly matters ventures joint of his desire to further his waives the'suit, thereby matter of being a question well in Manges, with to be sued privilege to insist on his right long range joint ventures. part of their on a cause his domicile in a cross- asserted in his brief that of that character further admits action Schero rule, the foregoing original Applying law- action. the true nature of Patterson’s Manges’ counterclaim holds that rental value “of suit was to recover the to Schero’s of nor relates neither arises out to tubing equipment various [delivered] proof, permitting tender of present a Manges evi- ter without to 1. offered Counsel parties would that he raising support trial court assured waiver dence in of his motion proof. right The deprive to offer of a not them and advised bar of Schero’s and an standing by under advisement matter was taken were the court that witnesses apparent benefit attorney by Manges’ entered without testify. Following pleas order proof. imploring the mat- not to decide the trial court cross-action against Manges for contribu of the that is the transaction or occurrence tion and indemnity. original The matter either of the majority then sev or of ers a counterclaim therein. Such Manges’ counterclaim and orders it contemplates a suit for contribution or in- transferred to County Harris while at the 97(e). demnity. Cross-claims same time retaining Schero’s cross-action may already in the main parties involve not against Manges Zapata County. The 97(f). suit. Tex.R.Civ.P. filed purports upon to be based common law A be either equitable right to implied contribution or an permissive. or need not involve The claim contractual indemnity since it does plead- action to be pending of a purport to arise long result of tort or ed so as it out of the transaction arises some matter of provision. Manges’ contractual occurrence that is the liabili ty opposing claim and does not contingent party’s upon require presence adjudication liability to Although Patterson. *4 third the parties of whom court cannot ac- was already a along defendant with Schero quire jurisdiction. the claim the If meets suit, to Patterson’s original Schero was foregoing requisites recognized it is as a not compelled to seek contribution or in compulsory counterclaim. See also R. Mc- demnity from Manges until an unfavorable Donald, 7.49. Texas Civil Practice § judgment exposed to liability. him Thus against Manges was contrast, permissive a counterclaim not mandatory but only permissive may at pleaded against opposing party the be an time it was brought and could whether or not it arises out of the transac have been subject tion maintained in a or occurrence that is the matter separate suit. County of opposing the claim. party’s Nueces v. Tex.R.Civ.P. Svajda, (Tex.Civ. 608 S.W.2d 752 97(b); McDonald, R. Texas Civil Practice 1980, App. Corpus Christi writ ref’d n.r. — also, Hemphill 7.50. See v. Greater e.); § Barker v. Fagg, (Tex. 107 S.W.2d 490 Bank, (Tex.Civ. Houston Civ.App. 1937, writ). no — Austin 1976, App. writ). no Dist.] [14th — Houston When Schero’s cross-action was severed Furthermore, may the counterclaim seek from lawsuit, the main Schero assumed the greater a recovery or lesser amount of than posture of a plaintiff and that of a does opposing party may the and seek dif- severance, fact, defendant. The order relief, only by ferent limited styled parties a such manner. Mang- jurisdiction matter court. of the es’ against Schero did not We only thus note that cross-claims under change the previous status of parties 97(e) compulsory Tex.R.Civ.P. counter- and but merely rendered a counter-de- claims, 97(a) require under Tex.R.Civ.P. fendant as well plaintiff as a while at the that the counter or cross-claims arise out of same time rendering Manges a counter- the transaction or occurrence that is the plaintiff in addition to his status of defend- opposing party’s matter of the claim ant. or original action. It is the rights axiomatic that conferred Robertson, Both Zachry supra, by our venue statutes are the benefit of Cook, supra, speak Skidmore v. in terms of defendants and not plain- benefit of cross-actions but it is evident that the term tiffs who necessarily have and do exercise is used in generic really sense when it the power to select their forum. The ma- refers to a counterclaim as be- jority opinion makes no distinction between original tween original plaintiff a cross-plaintiff counter-plaintiff. and a holdings The are defendant in the lawsuit. Tex.R.Civ.P. 97 and clearly addresses dis- language therefore consistent with the tinguishes between cross-claims and coun- that the 97(a), requiring coun- terclaims. For a cross-claim example, may terclaim out transaction or oc- arise of the arise as a party one a currence is the co-party may be if it pleaded opposing party’s arises out claim. case, might instant cannot well have examination initiated it in his home subject Manges’

be limited solely Privilege be Plea of cause Schero’s is county. cause derivative or in home The net result original ruling upon Patterson’s lawsuit. Whatev of the is to confer might er claim have select he Schero the where will dependent prosecute of the claim Patterson has his he will lawsuit where arising solely Schero. Cf. Barton v. Farmers’ defend as a a counterclaim Bank, (Texas litigate State Com.App. S.W. result of Schero’s decision to 1925). recognized against Manges. While it is that venue rights are generally for the benefit of a Schero, having selected a forum for the defendant, plaintiff a occasion litigation of with a controversies connected rights. waive the same Perone v. Texas particular series of transactions which Department Corrections, 583 S.W.2d 880 might result in liabilities established (Tex.Civ.App. Tyler dism’d); — against him be to now permitted should not Crosby v. Trucks, Heldt Brothers about the forum. Ratner v. Pow complain S.W.2d 235 (Tex.Civ.App. ers, (Tex.Civ.App. 565 S.W.2d 120 —East no writ); Vanguard land Insurance Prior to Young, it was well settled that a supra. Co. v. successfully urge could not From all the exhibits before he where had sued appears some of claims it which was not residence defend Manges asserts Schero are related ant filed a Bailey See some manner to claims Patterson *5 Co., (Texas Federal Supply 287 1090 S.W. Manges holds both Com.App.1926); Traders & General Insur but partial liability which Schero admits ance Co. v. Rhodabarger, 109 S.W.2d 1119 indemnity seeks contribution and (Tex.Civ.App. dism’d). Paso writ — El Manges. by The counterclaim asserted against any essence set-off

The rationale plaintiff calling “a him in of liability adjudged against favor a defendant purpose into court for the Schero. The counterclaim is therefore obtaining relief him invites him to patently unrelated. up set all defenses which defeat on, sued or any appropriate other [claim] trial did not evidence Since the court hear germane to the matter of the nothing there is before us other than the suit, which should be ... settled before a determining to assist us adjudication proper of the merits ... can If Manges’ true nature obtained., grants be He him the presume refuses setting up all such counterclaims ... as necessary trial found such facts as aré court he holds plaintiff which may being there no support judgment, legally pleaded be in such suit.” De la findings fact conclusions of law re v. 64 Vega League, (1885). Tex. Co., quested by Schero, Oil Rouse Shell (Tex.Civ.App. Corpus S.W.2d In these counterclaims which arise out of — dism’d) minimally then Christi claim, plaintiff’s matter to the this should remand the case court they be permissive, the law development for a of evidence Stewart, remains unchanged. Hurst v. the true nature 668 (Tex.Civ.App. it to the waiver. relates issue of 1975, writ dism’d); Vanguard Insurance Co. Young, (Tex.Civ.App.— I disposition dissent made Houston [1st Dist.] majority. Only permissive those counterclaims that

do not arise out of the plaintiff’s pose problem. Clearly compelled

Schero was not to initiate a law- suit Zapata County. He