A. H. Belo Corp. v. Sanders

598 S.W.2d 7, 1980 Tex. App. LEXIS 3283

• Court: Court of Appeals of Texas
• Decided: January 31, 1980
• Docket: No. 8748
• Status: Published

Opinions

RAY, Justice.

This is a venue case. Appellee (plaintiff) H. B. Sanders (Sanders) filed suit against appellant (defendant) A. H. Belo Corporation (Belo) for damages for slander of title and for removal of a cloud on the title to his real estate located in Marion County, both remedies being based upon a claim of a wrongful filing of an abstract of judgment.

Belo filed its plea of privilege which was overruled by the trial court. Appellant has perfected its appeal and submits five points of error for our consideration, contending that the trial court should have transferred this case to Dallas County where appellant maintains its principal place of business.

In appellee’s controverting affidavit he asserted that the abstract of judgment filed by Belo in Marion County cast a cloud upon the title to certain lots in Marion County which he owned. While not specifically mentioned in the controverting affidavit, such allegation would have the effect of asserting that Sanders’ suit came within Subdivision 14 of Article 1995, Tex.Rev.Civ. Stat.Ann. 1 McDonald’s, Texas Civil Practice § 4.49, p. 600.

Sanders also asserted venue in Marion County by virtue of Subdivisions 7 and 23 of Article 1995, supra.

It is undisputed that on August 9, 1976, Belo caused to be filed and recorded in the Abstract of Judgment records of Marion County a judgment from the 193rd Judicial District Court of Dallas County in favor of Belo, styled Belo Corporation v. H. B. Sanders, Individually and d/b/a Deer Cove, numbered 75-10597-L. Subsequently, on May 24, 1978, in a bill of review action, the 193rd Judicial District Court in Dallas set aside its former judgment. On May 30, 1978, the bill of review judgment was filed and recorded in the Abstract of Judgment records of Marion County and decreed that the 1976 judgment in cause no. 75-10597-L was a nullity, “. . . and any Abstract of Judgment created from said Judgment is a nullity . . . .” The Belo Corporation, however, has refused to execute and record a release of the judgment, and the abstract thereof remains of record in Marion County.

While Subdivision 14 of Article 1995, supra, is not mentioned in either brief submitted by the parties, it must be considered as one of the subdivisions considered by the trial court in rendering judgment. The controverting affidavit as well as Sanders’ amended petition state that the suit is to remove a cloud upon the title to all of the land and lots owned by appellee in Marion County, Texas. The allegations contained in the amended petition bring the case within Subdivision 14, supra, and venue would be maintainable in Marion County if the evidence was sufficient to justify the trial court in impliedly finding that Sanders owned land in Marion County.

In a suit to remove cloud from title to land, the plaintiff has the burden of proving two venue facts: First, the nature of the suit; and second, that the land is located in the county of suit. Atlantic Richfield Co. v. Trull, 559 S.W.2d 676, 679 (Tex.Civ.App. Corpus Christi 1977, writ dism’d); Batex Oil Company v. LaBrisa Land and Cattle Co., 352 S.W.2d 769, 771 (Tex.Civ.App. San Antonio 1961, writ dism’d).

There was no direct testimony that Sanders’ land was located in Marion County, but the county clerk testified that an abstract of judgment had been filed against H. B. Sanders by the Belo Corporation in Volume 4, Page 363, of the Marion County Abstract of Judgment records. Sanders testified that he lived in Marion County, that he had a Jerico Subdivision where he sold lots, and that he had “a little grocery store there too.” He further testified that he made an application for a loan with the Citizens National Bank in Baytown; that he went “to the abstract plant” and asked them to give him a title policy on his property, but that the abstract company refused to issue a title policy because the Belo Corporation had an abstract of judgment on record. He also testified that he had agreed to sell a lot in his subdivision, and that when he went to the abstract company and applied for a title policy on his lot, he was refused because of the Belo abstract of judgment being on record. Since the abstract of judgment was filed in Marion County, and the abstract company refused, because of that abstract of judgment, to issue a title policy covering Sanders’ lots, it can be inferred that those lots were located in Marion County. The circumstantial evidence is sufficient to support the trial court’s implied finding that Sanders owned some land in Marion County and that the title to that land was clouded by an abstract of judgment on record in the county clerk’s office which had not been released. Such evidence was sufficient for the trial court to have sustained venue in Marion County under Subdivision 14 of Article 1995, supra.

The judgment of the trial court will be affirmed.

CORNELIUS, C. J., not participating.