Affirmed, and Opinion filed April(%?fl%l980. a 52 @9 SEVEN ELVES, INC., ET AL, Appellants
NO. A2322 VS.
GRANT PLAZA HUNTSVILLE ASSOCIATES, Appellee
Adfidfl@:==::::rr--:::=h «a
MMWQ ‘N©§>¥]®VT’ “6‘2? N%@v§3
Appeal from 12th District Court of Walker County QQSEA {Nflr
'54:?! AEJE £39
_ _ _ _ _ lEIfl©© awaaans [NM (33311115?
This is a venue case. Grant Plaza Huntsville Associates (appellee) sued Seven Elves, Inc., Gary Woodall and Charles Friday in Walker County seeking a joint and several judgment on a claim for damages based upon a written lease agreement and a written guaranty. Each defendant filed a plea of privilege to be sued in Harris COunty. Appellee filed a controverting affidavit alleging that sections 5, 23 and 29a of Article 1995, TEX. REV CIV STAT. ANN. (Vernon 1964) applied and that venue was proper in Walker County. After a hearing to the court, the trial court denied the pleas of privilege. Seven Elves, Woodall and Friday appeal from this ruling.
On August 1, 1974 Seven Elves executed a lease as a tenant for a shopping center space in Huntsville, Walker County. The lease was for a five year period ending November 30, 1979. Appellants Woodall and Friday executed a written guaranty as part of the lease agreement, in which they guaranteed the performance of the obligations and payment of rent. Eltinge, Graziadio and Sampson Development Company was the original lessor, but subsequently assigned its interest to American Villages, Inc., a California corporation. American Villages then assigned its
interest to appellee.
Appellant urges that section 23 of article 1995 is
insufficient to maintain venue in Walker County as to Seven Elves. We disagree. Section 23 states in part that: "Suits against a private corporation, association, or joint stock company may be brought ... in the county in which the cause of action or part thereof arose....” The main issue that we must decide is whether the cause of action or part thereof arose in Walker County. The Supreme Court has held that "either some part of the transaction creating the primary right, or some part of the iransaction relating to the breach of that right, must have occurred in the county where the suit is brought." Stone Fort National Bank of Nacogdoches v. Forbess, 91 S.W.2d 674, 676 (Tex. Sup. 1936). Seven Elves leased premises in Walker County and, eventually, abandoned the premises and failed to perform other obligations there. The transaction creating the right and relating to the breach of that right has its genesis in the leasing of the premises in Walker County. See Lubbock Manufacturing Co. v. Sames, 23 Tex- sup. Ct. J. 319 (April 9, 1980). Thus, the evidence supports the implied finding of the trial court that some part of the transaction creating the primary right and relating to the breach of that right arose in Walker County.
Since we hold that venue is proper as to Seven Elves‘—? under section 23, we must next consider whether venue is proper as to appellants Woodall and Friday. Section 29a provides that:
29a. Two or more defendants.——Whenever
there are two or more defendants in any suit
brought in any county in this State and such
suit is lawfully maintainable therein under
the provisions of Article 1995 as to any of
such defendants, then such suit may be main-
tained in such county against any and all necessary parties thereto.
NC "1
To maintain venue in Walker County as to Woodall and Friday, they must be "necessary parties” within the mean- ing of section 29a. A necessary party is one whose joinder
is necessary to give plaintiff the complete relief to which
he is entitled in the suit which can be maintained in that
county. Ladner v. Reliance Corp., 293 S.W.2d 758 (Tex. Sup. 1956). We recognize that the area of law dealing with necessary
mfi’vt‘! mv- rave 57.,
parties has been in a state of flux. Some courts have held to
the contrary, but we believe that guarantors, in a suit against the principal obligor and in which plaintiff may be entitled to a joint judgment, are necessary in order to give the plain-
tiff the full relief to which he is entitled. See Willis v.
Victoria Bank & Trust Co., 76 S.W.2d 532 (Tex. Civ. App.-
Beaumont 1934, no writ). Furthermore, the Supreme Court has stated that a plaintiff cannot get the full relief to which it is contractually entitled, a joint as well as a several judgment, against both surety and principal, unless both are sued in the same action. Ramey & Mathis v. Pitts, 230 SQW:“j 2d 211 (Tex. Sup. 1950).
In view of our holdings on sections 23 and 29a, it is not necessary to consider the question of whether venue could be sustained on the basis of section 5. The judgment of the trial court is affirmed.
Affirmed.
/s/ J. Curtiss Brown Chief Justice
Judgment rendered, and Opinion filed April 23, 1980.
Panel consists of Chief Justice Brown and Associate Justices
Miller and Pressler.
q ‘Hwfiarna‘i’m- -.. ..
THE STATE OF TEXAS K
COUNTY OF HARRIS I
I, THELMA MUELLER, Clerk of the Court owaivil
'Appeals, Fourteenth Supreme Judicial District of Texas,
at Houston, do hereby certify that the preceding 3
page§ contain a true and correct copy of Court's
opinion rendered April 23, 1980
in Cause No. A2322 ,
' VES INC. ET AL A ellants I
VS.
GRANT PLAZA HUNTSVILLE ASSOCIATES, Appelleei
from walker County, and now on file in my
of£ice.
TO CLREIFY WHICH, I hereunto set my hand and
affix the Seal of Said Court,
, at Houston, this the 13th 1* day Of June : A.D. 1980 .
Wm; Mch
Clerk
By HKKKKX
No. .... ...
IN |4TH COURT
OF CIVIL APPEALS HOUSTON
Appellants
GRANT ...PLAZA HUNISVILLE ASSOCIATES,
.Ap_p.e.l.l.e.e.
CERTIFIED COPY OF COURT'S OPINION
THELMA MUELLER. CLERK
b)
BE IT REMEMBERED
3 THAT at the term of the Honorable Court of CW]. Appeals for the 14th Supreme Judicial
District of the State of Texas, begun and holden at Houston on the 1st Monday of October, A. D. 1379 ,pn$an J CURTISS BROWN, Chief Justice and Associate Justices
GEROGE E MILLER and PAUL PRESSLER. a
In the cause
SEVEN ELVES, INC , ET. AL Appellant. s ,
No, A2322
Walker
From County
Tr Ct# l3,308
Opinion by CJ J Curtiss Brown
GRANT PLAZA HUNTSVILLE, ASSOCIATES Appeuee‘ ,
the £0110“!!! judgment was rendered April 23, 1980
"This cause, being an appeal from the order overruling plea of privilege rendered by the court below and entered on October 26, 1979, came on to be heard on the transcript of the record, and the same being inspected, because it is the opinion of this Court that there is no error in the order, it is therefore considered, adjudged and ordered that the order of the court below be affirmed in all things. It is further ordered that the appellants, Seven Elves, Inc., Gary R Woodall and Charles M Friday, and their surety Reliance Insurance Company, pay all costs incurred by reason of this
appeal, It is further ordered that this decision be certified below
for observance "
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JUN 31. 7 l9®
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Free access — add to your briefcase to read the full text and ask questions with AI
Affirmed, and Opinion filed April(%?fl%l980. a 52 @9 SEVEN ELVES, INC., ET AL, Appellants
NO. A2322 VS.
GRANT PLAZA HUNTSVILLE ASSOCIATES, Appellee
Adfidfl@:==::::rr--:::=h «a
MMWQ ‘N©§>¥]®VT’ “6‘2? N%@v§3
Appeal from 12th District Court of Walker County QQSEA {Nflr
'54:?! AEJE £39
_ _ _ _ _ lEIfl©© awaaans [NM (33311115?
This is a venue case. Grant Plaza Huntsville Associates (appellee) sued Seven Elves, Inc., Gary Woodall and Charles Friday in Walker County seeking a joint and several judgment on a claim for damages based upon a written lease agreement and a written guaranty. Each defendant filed a plea of privilege to be sued in Harris COunty. Appellee filed a controverting affidavit alleging that sections 5, 23 and 29a of Article 1995, TEX. REV CIV STAT. ANN. (Vernon 1964) applied and that venue was proper in Walker County. After a hearing to the court, the trial court denied the pleas of privilege. Seven Elves, Woodall and Friday appeal from this ruling.
On August 1, 1974 Seven Elves executed a lease as a tenant for a shopping center space in Huntsville, Walker County. The lease was for a five year period ending November 30, 1979. Appellants Woodall and Friday executed a written guaranty as part of the lease agreement, in which they guaranteed the performance of the obligations and payment of rent. Eltinge, Graziadio and Sampson Development Company was the original lessor, but subsequently assigned its interest to American Villages, Inc., a California corporation. American Villages then assigned its
interest to appellee.
Appellant urges that section 23 of article 1995 is
insufficient to maintain venue in Walker County as to Seven Elves. We disagree. Section 23 states in part that: "Suits against a private corporation, association, or joint stock company may be brought ... in the county in which the cause of action or part thereof arose....” The main issue that we must decide is whether the cause of action or part thereof arose in Walker County. The Supreme Court has held that "either some part of the transaction creating the primary right, or some part of the iransaction relating to the breach of that right, must have occurred in the county where the suit is brought." Stone Fort National Bank of Nacogdoches v. Forbess, 91 S.W.2d 674, 676 (Tex. Sup. 1936). Seven Elves leased premises in Walker County and, eventually, abandoned the premises and failed to perform other obligations there. The transaction creating the right and relating to the breach of that right has its genesis in the leasing of the premises in Walker County. See Lubbock Manufacturing Co. v. Sames, 23 Tex- sup. Ct. J. 319 (April 9, 1980). Thus, the evidence supports the implied finding of the trial court that some part of the transaction creating the primary right and relating to the breach of that right arose in Walker County.
Since we hold that venue is proper as to Seven Elves‘—? under section 23, we must next consider whether venue is proper as to appellants Woodall and Friday. Section 29a provides that:
29a. Two or more defendants.——Whenever
there are two or more defendants in any suit
brought in any county in this State and such
suit is lawfully maintainable therein under
the provisions of Article 1995 as to any of
such defendants, then such suit may be main-
tained in such county against any and all necessary parties thereto.
NC "1
To maintain venue in Walker County as to Woodall and Friday, they must be "necessary parties” within the mean- ing of section 29a. A necessary party is one whose joinder
is necessary to give plaintiff the complete relief to which
he is entitled in the suit which can be maintained in that
county. Ladner v. Reliance Corp., 293 S.W.2d 758 (Tex. Sup. 1956). We recognize that the area of law dealing with necessary
mfi’vt‘! mv- rave 57.,
parties has been in a state of flux. Some courts have held to
the contrary, but we believe that guarantors, in a suit against the principal obligor and in which plaintiff may be entitled to a joint judgment, are necessary in order to give the plain-
tiff the full relief to which he is entitled. See Willis v.
Victoria Bank & Trust Co., 76 S.W.2d 532 (Tex. Civ. App.-
Beaumont 1934, no writ). Furthermore, the Supreme Court has stated that a plaintiff cannot get the full relief to which it is contractually entitled, a joint as well as a several judgment, against both surety and principal, unless both are sued in the same action. Ramey & Mathis v. Pitts, 230 SQW:“j 2d 211 (Tex. Sup. 1950).
In view of our holdings on sections 23 and 29a, it is not necessary to consider the question of whether venue could be sustained on the basis of section 5. The judgment of the trial court is affirmed.
Affirmed.
/s/ J. Curtiss Brown Chief Justice
Judgment rendered, and Opinion filed April 23, 1980.
Panel consists of Chief Justice Brown and Associate Justices
Miller and Pressler.
q ‘Hwfiarna‘i’m- -.. ..
THE STATE OF TEXAS K
COUNTY OF HARRIS I
I, THELMA MUELLER, Clerk of the Court owaivil
'Appeals, Fourteenth Supreme Judicial District of Texas,
at Houston, do hereby certify that the preceding 3
page§ contain a true and correct copy of Court's
opinion rendered April 23, 1980
in Cause No. A2322 ,
' VES INC. ET AL A ellants I
VS.
GRANT PLAZA HUNTSVILLE ASSOCIATES, Appelleei
from walker County, and now on file in my
of£ice.
TO CLREIFY WHICH, I hereunto set my hand and
affix the Seal of Said Court,
, at Houston, this the 13th 1* day Of June : A.D. 1980 .
Wm; Mch
Clerk
By HKKKKX
No. .... ...
IN |4TH COURT
OF CIVIL APPEALS HOUSTON
Appellants
GRANT ...PLAZA HUNISVILLE ASSOCIATES,
.Ap_p.e.l.l.e.e.
CERTIFIED COPY OF COURT'S OPINION
THELMA MUELLER. CLERK
b)
BE IT REMEMBERED
3 THAT at the term of the Honorable Court of CW]. Appeals for the 14th Supreme Judicial
District of the State of Texas, begun and holden at Houston on the 1st Monday of October, A. D. 1379 ,pn$an J CURTISS BROWN, Chief Justice and Associate Justices
GEROGE E MILLER and PAUL PRESSLER. a
In the cause
SEVEN ELVES, INC , ET. AL Appellant. s ,
No, A2322
Walker
From County
Tr Ct# l3,308
Opinion by CJ J Curtiss Brown
GRANT PLAZA HUNTSVILLE, ASSOCIATES Appeuee‘ ,
the £0110“!!! judgment was rendered April 23, 1980
"This cause, being an appeal from the order overruling plea of privilege rendered by the court below and entered on October 26, 1979, came on to be heard on the transcript of the record, and the same being inspected, because it is the opinion of this Court that there is no error in the order, it is therefore considered, adjudged and ordered that the order of the court below be affirmed in all things. It is further ordered that the appellants, Seven Elves, Inc., Gary R Woodall and Charles M Friday, and their surety Reliance Insurance Company, pay all costs incurred by reason of this
appeal, It is further ordered that this decision be certified below
for observance "
FULEED‘) MN suenEME sous?
fig firearm
JUN 31. 7 l9®
(EARN .. JA©IK<§©NL @tnnn
BVW @BPwfi'Y
I, THEIMA MUELLER, Clerk of the Court of Civil Appeals for the 14th Supreme Judicial District of Texas, at the City of Houston, hereby certify that the foregoing is
a true copy of \ judgment entered herein by this Court in the above entitled
and numbered cause as appears of record in Minute Book. 2. , Page. 5.88. IN WITNESS WHEREOF, I, hereunto set my hand and affix the seal
of said Court at Houston thisA—day x5 of June A. D 1930—
THELMA MUELLER, Clerk
/ Kym W
BE IT REMEMBERED THAT at the term of the Honorable Court of ClVll Appeals for the 14th Supreme Judicial
District of the State of Texas, begun and holden at Houston on the lst Monday of October, A. D.
19-2-_9_, present J CURTISS BROWN, Chief Justice and Associate Justices
GEROGE E MILLER and PAUL PRESSLER.
INC... ,. ET AL Appellant. s , No. A2322
V8.
From Walker. County Tr Ct # l3 , 308 Opinion byCJ J Curtiss Brown GRANT PLAZA HUNTSVILLE! ASSOCIATES ‘Appellee. , the following order was rendered May 14, 1980
"It is ordered that appellants' motion for rehearing be over-
ruled."
I, THELMA MUELLER, Clerk of the Court of Civil Appeals for the 14th Supreme Judicial District of Texas, at the City of Houston, hereby certify that the foregoing is
a true copy of order entere‘i herein by this Court in the above entitled 2 , Page 59.7
and numbered cause as appears of record in Minute Book. IN WITNESS WHEREOF, I, hereunto set my hand and affix the seal
13th day
of said Court at Houston this
of June A. D 19_8Q_
7/ B m
THE STATE OF TEXAS
HHH
.SDUNTY OF HARRIS
I, THELMA MUELLER, Clerk of the Court of Civil Appeals for the Fourteenth Supreme Judicial District of the State of Texas, at Houston, do hereby certify that the $ 25 no required by Rule 388-A,
R.S. Article 3924-1 was paid by John F Schaffer, attorney for the
appellants.
In Cause No._ A2322
’
SEVEN ELVES, INC , ET AL, Appellants VS.
GRANT PLAZA HUNTSVILLE ASSOCIATES, Appellee .
From County.
TO CERTIFY WHICH, I hereunto set my hand and affix the Seal
of said Court of Civil Appeals, at Houston this the
13th day of June ’19 80 S;£E;té§Vfi—QJI thtg:gg§£%i : Clerk A I‘ By XXXKKXK
SUPREME COURT NO _____________________________ _- No. 5.222.? _____ __ 14th DISTRICT
SEVEN ELVES, INC , ET AL
Petitioner vs.
GRANT PLAZA HUNTSVILLE ASSOCIATES
Respondent
TRANSCRIPT
FROM THE
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