Elkins v. Auto Recovery Bureau

649 S.W.2d 73, 1983 Tex. App. LEXIS 4018

• Court: Court of Appeals of Texas
• Decided: February 1, 1983
• Docket: 05-81-013334-CV
• Status: Published

Opinions

WHITHAM, Justice.

Appellant, Rodney R. Elkins, appeals from a judgment dismissing this suit in a county court at law for want of jurisdiction. Appellees, Hobart Douglas Jameson, Sr., d/b/a Auto Recovery Bureau, and The Citadel Apartments, contend that the trial court was without jurisdiction because the amount in controversy exceeds $5000.00. For the reasons that follow we affirm in part and reverse in part.

In his original petition Elkins sued only Jameson for wrongful conversion of Elkins’ automobile alleging damages in the amount of $2000.00. Thereafter, Elkins filed amended pleadings which added Citadel as a defendant. The amended pleadings contained three counts.

Count one alleged wrongful oral inducements of Elkins by Citadel to enter into a written lease agreement and damages caused the leased premises by Citadel. El-kins sought damages under count one in the sum of $1900.00. Elkins also sought relief under count one against Citadel under the Deceptive Trade Practice Act, Tex.Bus. Com.Code Ann. § 17.41 et seq. (Vernon Supp.1982), which at that time provided for mandatory treble damages. The sum of $1900.00 trebled equals $5700.00.

Count two contained Elkins’ claim against Jameson for wrongful conversion of his automobile again alleging damages in the amount of $2000.00. (The sole cause of action asserted in his original petition.) But in count two Elkins also sought to recover this $2000.00 against Citadel as well, alleging that Jameson and Citadel were both jointly and severally liable for the sum of $2000.00.

In count three Elkins sought to recover from Citadel his $100.00 security deposit under the written lease between the parties which Elkins alleged he was wrongfully induced to sign in count one. Thus it appears that Elkins’ amended pleadings:

(a) carried forward his old suit against Jameson for conversion, and added Citadel as a defendant, (old suit) and

(b) presented a second and new cause of action for wrongful inducements to enter into a written lease and for damages under that lease, (new suit)

County courts at law have jurisdiction concurrent with that of the District Court where the matter exceeds $500.00 and does not exceed $5000.00 exclusive of interest. Tex.Rev.Civ.Stat.Ann. art. 1970a (Vernon Pamp.Supp.1981).

We conclude that the present case is controlled by Isbell v. Keynon-Warner Dredging Co., 113 Tex. 528, 261 S.W. 762 (Tex.Comm’n App.1924, opinion adopted). In that case the initial cause of action in the county court alleged damages within the jurisdictional limits of the county court. The plaintiff’s amended pleadings upon which the ease went to trial contained the initial cause of action to recover possession of a dragline bucket or its value. However, the amended pleadings also sought to recover the reasonable rental value of the bucket until termination of the suit. The amounts sued for in both counts exceeded the then jurisdictional limits of the county court. In Isbell the court stated:

When the amended petition sets up a new cause of action it does not relate back, but speaks from the date upon which the amendment itself is filed. This is because an amended petition which presents a new cause of action, instead of the old one, amounts to the beginning of a new suit. Ayres v. Cayce, 10 Tex. [99] 107. However, where the amended petition retains the old suit, as in the present case, and presents, as well, an additional cause of action, it speaks from the date of the filing of the original petition as to the old suit and from the date of the filing of the amendment as to the additional cause of action.

If the new matter was not a new cause of action, the amending allegations related back entirely, and spoke as from the date of December 8, 1921, asserting a matter in controversy of not more than $1,000, in that the alleged damages, as of that date, added to the alleged value of the bucket, only totaled $997. If the new matter, on the other hand, was a new cause of action, it did not interfere in any way with the suit already in progress. The repetition of the old suit related back. The new matter if it set up a new cause of action did not; and, though it might not have been sustainable in whole or in part for lack of jurisdiction over it, that situation, if true, did not deprive the court of jurisdiction over the old suit.

The general rule, to which this case appears to be no exception is that where jurisdiction is once lawfully and properly acquired, no subsequent fact or event in the particular case serves to defeat the jurisdiction. (Emphasis added) Isbell, 261 S.W. at 763.

In the present case we conclude that count two of Elkins’ amended pleadings constitutes an old suit with the addition of a new defendant and speaks from the date of filing of the original petition. We hold, therefore, that the trial court had jurisdiction of the old suit and of Jameson and Citadel as defendants to the cause of action asserted in count two.

We note that in count one Elkins alleges that Citadel damaged the rented premises over the course of the tenancy and that this damage to the premises included “causing Plaintiff’s vehicle to be removed from where Plaintiff had parked it and to be withheld from Plaintiff unreasonably.” Just how the alleged wrongful removal of Elkins’ automobile can constitute damage “to the premises” escapes us. If this allegation constitutes Elkins’ efforts to merge count one and count two into one cause of action, then we do not agree. We hold, therefore, that counts one and three of El-kins’ amended pleadings contain new matter and that this new matter constitutes a new cause of action. We fail to see how a cause of action for conversion of the automobile and causes of action for wrongful inducements to enter into a written lease and upon that lease can constitute one and the same cause of action. Since the amount in controversy in the new causes of action exceeds the jurisdictional limits of the county court at law, we hold that the trial court was without jurisdiction of the new matter alleged in counts one and three of Elkins’ third amended petition.

We recognize that in Isbell the court went on to hold that the trial court had jurisdiction to render judgment for a sum in excess of $1000.00 (the jurisdictional limit) based in part on the cause of action for rental of the bucket while the litigation was pending. The court did so because the defendant had retained possession of the bucket by virtue of his replevy bond and it was necessary for the trial court to hear and decide all matters arising upon the bond for the value of the bucket and its rent during the time ensuing after execution and approval of the bond. That circumstance does not exist in the present case. The present case does not invoke the general rule that “where jurisdiction is once lawfully and properly acquired, no subsequent fact or event in the particular case serves to defeat that jurisdiction.” Flynt v. Garcia, 587 S.W.2d 109 (Tex.1979); Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368, 371 (Tex.1962). Rather, the present case is within the exception to that rule as stated in Isbell, e.g., “When the amended petition sets up a new cause of action it does not relate back, but speaks from the date upon which the amendment itself is filed. This is because an amended petition which presents a new cause of action, instead of the old one, amounts to the beginning of a new suit.” Isbell, supra at 763.

Accordingly, we reverse the trial court’s order of dismissal as to the cause of action alleged by Elkins in count two of his third amended petition and we affirm the trial court’s order of dismissal as to the causes of action alleged by Elkins in counts one and three of his third amended petition.

Reversed in part and affirmed in part.