# Von Scheele v. Kugler-Morris General Contractors, Inc.

> Court of Appeals of Texas · December 31, 1975 · 532 S.W.2d 375

URL: https://www.frixlaw.com/law-library/cases/9674054

## Case

- **Full name:** Edgar VON SCHEELE, Appellant, v. KUGLER-MORRIS GENERAL CONTRACTORS, INC., Et Al., Appellees
- **Court:** Court of Appeals of Texas
- **Decided:** December 31, 1975
- **Citations:** 532 S.W.2d 375
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Guittard
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

ON MOTION FOR REHEARING
In footnote 1 of our original opinion we explained that although our disposition of the venue question turned on Kugler-Mor-ris’s action against Von Scheele and Dee Brown Masonry, Inc., as alleged in its cross-claim and counterclaim, the litigation began as a suit by Dee Brown against Kugler-Morris and Von Scheele. Dee Brown’s claim against Kugler-Morris was for the balance due on the masonry subcontract, and his claim against Von Scheele was for interference with performance of Kugler-Morris’s obligation under the subcontract. On motion for rehearing Von Scheele contends that venue of the original action by Dee Brown should be separately considered and determined. He cites cases such as Boyd v. Thompson-Hayward Chemical Co., 450 S.W.2d 937 (Tex.Civ.App.—Tyler 1970, writ dism’d), which involved subdivision 29a of article1 1995 rather than subdivision 4, and held that venue of a severable third-party action or cross-claim must be determined independently of the original action.
We need not decide whether Dee Brown’s actions and Kugler-Morris’s action are severable, since we conclude that controlling consideration is not severability but propriety of joinder of actions to avoid a multiplicity of suits. In this connection we note that the test of joinder of actions for venue purposes under subdivision 4 differs from the test under subdivision 29a. Under subdivision 29a, which applies when none of the defendants is a resident of the county, the test is severability, based on the strict concept of “necessary parties,” and no consideration is given to the problem of a multiplicity of suits. Union Bus Lines v. Byrd, 142 Tex. 257 , 177 S.W.2d 774, 776 (1944). On the other hand, under subdivision 4, which applies when at least one of the defendants is a resident of the county, the broader “proper party” test is used, and that test is defined in terms of avoiding a multiplicity of suits. Stockyards National Bank v. Maples, 127 Tex. 633 , 95 S.W.2d 1300, 1302 (1936). Although Stockyards dealt with actions by one plaintiff against more than one defendant, we see no reason why the same principle should not be applicable where, as here, the same three parties are involved in both actions.
We also find a persuasive analogy in cases where a plaintiff asserts several different causes of action against the same defendant. In such cases the courts have held that if venue is proper as against one of the several causes of action alleged, other causes of action against the same defendant may be joined in order to avoid a multiplicity of suits. Middlebrook v. David Bradley Manufacturing Co., 86 Tex. 706 , 26 *382 S.W. 935 (1894); Parkhill Produce Co. v. Pecos Valley Southern Ry., 348 S.W.2d 208, 209 (Tex.Civ.App.—San Antonio), writ ref’d n. r. e. and this holding approved in Pecos Valley Southern Ry. v. Parkhill Produce Co., 163 Tex. 88 , 352 S.W.2d 723 (1961). Although the claims joined here are not different claims of the same* plaintiff against the same defendant, we conclude that similar reasoning applies where the parties are the same and there is a common issue of fact. Here the two actions involve not only the same three parties, but also the same principal fact issue, namely, performance of the masonry subcontract. Clearly, the two actions should be tried together to avoid a multiplicity of suits.
In this connection we hold also that the order in which the actions were filed is not controlling. Determination of the venue question must be made relative to and consistent with the posture of the case at the time of the venue hearing. Estes Chemical Co. v. Ciba-Geigy Corp., 501 S.W.2d 469, 479 (Tex.Civ.App. — Amarillo 1973), reversed and remanded for settlement, 505 S.W,2d 249 (Tex.1974). Since both the Kugler-Morris action and the Dee Brown action were before the court at the venue hearing, and in both actions pleas of privilege and controverting pleas had been filed, the court was not required to determine whether one action or the other should be regarded as the “main action” for venue purposes. Since the original action by Dee Brown against Kugler-Morris and Von Scheele was properly joined with the action by Kugler-Morris against Von Scheele and Dee Brown, venue of the entire controversy lay in Dallas County. Consequently, the trial court properly overruled Von Scheele’s plea of privilege with respect to Dee Brown’s action as well as its plea of privilege with respect to Kugler-Morris’s action.
Motion overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9674054. Public record. Not legal advice.