Opinion
No. 10-05-00314-CV
Opinion delivered and filed October 18, 2006.
Appeal from the 82nd District Court, Falls County, Texas, Trial Court No. Cv 35155.
Reversed and remanded.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
This case involves breach of an oral contract. John Rothwell contends that the court erred by: (1) transferring venue; (2) granting Rob Parker's counterclaim; (3) failing to award attorney's fees; and (4) failing to grant a declaratory judgment. We reverse and remand.
BACKGROUND
Rothwell owned several bulls. His business partner Roy Carter assisted in determining which bulls would be potential bucking bulls. Carter solicited Parker to maintain and develop the bulls for bucking purposes. Parker later entered an agreement with Rothwell to purchase an interest in four bulls for $25,000. The parties disagree as to whether Parker purchased Carter's interest in the bulls or Rothwell's interest. When Parker failed to pay the full $25,000, Rothwell sued. Parker counterclaimed for expenses associated with maintaining the bulls. The court awarded a judgment to Rothwell on his claims, but also granted Parker's counterclaim. Rothwell appealed.
ISSUES PRESENTED
Rothwell asserts four issues on appeal. First, he argues that the court erroneously transferred venue from McLennan County to Falls County. Second, he contends that no evidence exists to support his agreement to pay expenses, the statute of limitations bars Parker from recovering certain expenses, and the court's findings are in conflict. Third, he complains about the court's failure to award attorney's fees. Fourth, he argues that the court erred by failing to declare Rothwell's undivided one half interest in certain bulls. Parker asserts a cross-point also challenging the court's failure to award attorney's fees. Because Rothwell's venue issue would result in remand, we first address that portion of his second issue asserting no evidence. See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000); see Bradleys' Elec. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999).
If a party "presents multiple grounds for reversal," we first address "points that would afford the party the greatest relief." Bradleys' Elec. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999).
ISSUE TWO
Parker asserted counterclaims for breach of contract and quantum meruit, alleging that Rothwell verbally agreed to pay expenses associated with maintaining the bulls. According to Rothwell, no evidence exists to support either of Parker's theories.
Standard of Review
A court's findings of fact are reviewed in the same manner as jury findings. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Lucas v. Tex. Dep't of Protective Regulatory Servs., 949 S.W.2d 500, 502 (Tex.App.-Waco 1997, pet. denied). A no-evidence "challenge should be addressed to specific findings rather than the judgment as a whole." Beard v. Beard, 49 S.W.3d 40, 54 (Tex.App.-Waco 2001, pet denied). We consider whether the evidence "would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We "must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Id.
No Evidence
To prove breach of contract, a party must show: (1) a valid contract with the defendant; (2) plaintiff performed or tendered performance; (3) defendant breached the contract; and (4) plaintiff suffered damages as a result of the breach. Critchfield v. Smith, 151 S.W.3d 225, 233 (Tex.App.-Tyler 2004, pet denied); Runge v. Raytheon E-Systems, Inc., 57 S.W.3d 562, 565 (Tex.App.-Waco 2001, no pet.).
At trial, Parker testified that Rothwell verbally agreed to pay maintenance expenses, as is customary in the industry. Parker denied agreeing not to charge for expenses, but admitted that money generated by the bulls was credited against expenses. He neither discussed these expenses with Rothwell nor billed Rothwell for any expenses, but first demanded payment only after Rothwell sued. Rothwell testified that Parker bore the responsibility of expenses. He further testified to questioning Parker about expenses, but Parker replied that none were owed. Nevertheless, Rothwell admitted that Parker's expenses are reasonable and customary.
While this evidence is conflicting as to Rothwell's agreement to pay expenses, the court acted as the "sole judge of the credibility of the witnesses and the weight to be given their testimony." Hatteberg v. Hatteberg, 933 S.W.2d 522, 530 (Tex.App.-Houston [1st Dist.] 1994, no writ); see also McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). The court may consider all "facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony." Hatteberg, 933 S.W.2d at 530.
In resolving these conflicts, the court could reasonably conclude that Rothwell agreed to pay expenses and subsequently breached this agreement. "Ordinary terms, customs and usages" may be considered when construing contracts. GTE Sw., Inc. v. PUC of Tex., 102 S.W.3d 282, 295-96 (Tex.App.-Austin 2003, pet dism'd); see Intratex Gas Co. v. Puckett, 886 S.W.2d 274, 278 (Tex.App.-El Paso 1994, no writ). Parker testified that his owners customarily pay maintenance expenses. The fact that Rothwell asked Parker if anything was owed indicates his awareness of the usual custom of paying expenses. Rothwell even admitted the expenses were reasonable and customary.
The court could reasonably conclude that: (1) Parker and Rothwell agreed that Parker would maintain the bulls at Rothwell's expense; (2) Parker performed his obligations by maintaining and developing the bulls; (3) Rothwell breached this agreement by failing to pay; and (4) Rothwell's failure to pay damaged Parker. See Critchfield, 151 S.W.3d at 233; see also Runge, 57 S.W.3d at 565. Therefore, the evidence is sufficient to support Parker's counterclaim on a breach of contract theory. See City of Keller, 168 S.W.3d at 827. Because we so hold, we do not address Rothwell's remaining arguments that Parker is not entitled to recover either on quantum meruit or joint venture. See Tex.R.App.P. 47.1.
ISSUE ONE
In his first issue, Rothwell argues that venue is proper in McLennan County; thus, the 19th District Court of McLennan County erred by transferring venue to Falls County.
When determining venue, a court considers only the pleadings and affidavits. See TEX. CIV. PRAC. REM. CODE ANN. § 15.064(a) (Vernon 2002); TEX. R. CIV. P. 87(3). Properly pled venue facts "shall be taken as true unless specifically denied." TEX. R. CIV. P. 87(3)(a). In such a case, the "party pleading the venue fact must make prima facie proof of that venue fact." Id. When reviewing venue, we consider the "entire record, including the trial on the merits." TEX. CIV. PRAC. REM. CODE ANN. § 15.064(b); see Wilson v. Tex. Parks Wildlife Dep't., 886 S.W.2d 259, 261 (Tex. 1994). We must determine whether "venue was proper in the ultimate county of suit." Id. Reversal is required where a motion to transfer is erroneously granted or denied. See TEX. CIV. PRAC. REM. CODE ANN. § 15.064(b); Wichita County v. Hart, 917 S.W.2d 779, 781 (Tex. 1996).
Rothwell argues that McLennan County is a proper venue because it is where "all or a substantial part of the events or omissions giving rise to the claim occurred." TEX. CIV. PRAC. REM. CODE ANN. § 15.002(a)(1) (Vernon 2002). According to Rothwell, while at the parking lot of the West Auction Barn located in McLennan County, Parker verbally agreed to purchase four bulls from Rothwell. Rothwell's business records reflect this fact. Parker also testified to meeting Rothwell at this location. Rothwell contends that McLennan County was the location from which the bulls were shipped, where payment was due, and where Parker represented that he would pay $25,000 for the bulls.
Parker also relies on section 15.002(a)(1) to support venue in Falls County. He states that he resides in Falls County where he operates his business, acquired ownership of the bulls, maintained the bulls, and from which he paid Rothwell. Parker claims that he and Carter agreed that Parker would pay Carter's remaining debt with Rothwell. According to Parker, Falls County constitutes the location where this agreement occurred, all negotiations took place, Rothwell agreed to Parker's payment of Carter's debt, and Rothwell refused to pay past due expenses. Parker claims no agreement was made in McLennan County. After trial, the court found that Parker maintained the bulls in Falls County.
Based on the evidence, venue appears proper in either county. See Velasco v. Tex. Kenworth Co., 144 S.W.3d 632, 635 (Tex.App.-Dallas 2004, pet denied). As the plaintiff, Rothwell possessed the "first choice in the filing of the lawsuit." Wilson, 886 S.W.2d at 260. Parker then bore the burden of showing that " no substantial part of the events giving rise to appellant's claims" took place in McLennan County. Velasco, 144 S.W.3d at 635 (emphasis added). Rather than showing the absence of a "substantial part of the events," Parker merely showed that a "substantial part of the events or omissions occurred in another county." Id. (emphasis added). Such a showing is insufficient to support transfer of venue. See id.
"All or a substantial part of the events or omissions giving rise to the claim" may transpire in more than one county. See Velasco v. Tex. Kenworth Co., 144 S.W.3d 632, 635 (Tex.App.-Dallas 2004, pet denied).
Consequently, because Rothwell filed suit in a proper venue, venue cannot be transferred even if Falls County "would have been proper if originally chosen" by Rothwell. Wilson, 886 S.W.2d at 261. Although Falls County "qualified as a county where a substantial part of the events or omissions giving rise" to Rothwell's claims occurred, there is, nevertheless, "probative evidence" that McLennan County also satisfies section 15.002(a)(1). Velasco, 144 S.W.3d at 635; Wilson, 886 S.W.2d at 261.
Therefore, venue was proper in either McLennan County or Falls County and the court erred by transferring venue. See Wilson, 886 S.W.2d at 261; see also Velasco, 144 S.W.3d at 635; Hart, 917 S.W.2d at 781. Rothwell's first issue is sustained. Accordingly, we do not reach Rothwell's remaining arguments or Parker's cross-point. See TEX. R. APP. P. 47.1.
CONCLUSION
We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.