Baylor Construction Company v. E. Martinez Sandblasting and Painting ( 2004 )

  NUMBER 13-03-087-CV

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG  

BAYLOR CONSTRUCTION COMPANY,                                    Appellant,

v.

E. MARTINEZ SANDBLASTING AND PAINTING,                      Appellee.

On appeal from the County Court at Law No. 2

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Garza

          By two issues, Baylor Construction Company appeals a summary judgment rendered in favor of E. Martinez Sandblasting and Painting (“Martinez”) on its suit on sworn account against Baylor. For the reasons that follow, we overrule both issues and affirm the judgment of the trial court.

Venue

          In its first issue, Baylor argues that the trial court erred in denying its motion to transfer venue. The plaintiff has the first choice to fix venue in a proper county by filing the suit in the county of its choice. In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999) (orig. proceeding). A plaintiff’s choice of venue stands unless challenged by proper motion to transfer venue. See Tex. R. Civ. P. 86(1); In re Missouri Pac. R.R. Co., 998 S.W.2d 212, 216-17 (Tex. 1999). If the plaintiff’s venue choice is not properly challenged through a motion to transfer venue, the propriety of venue is fixed in the county chosen by the plaintiff. Wilson v. Texas Parks & Wildlife Dep’t, 886 S.W.2d 259, 260 (Tex. 1994); see Tex. Civ. Prac. & Rem. Code Ann. § 15.063 (Vernon 2002); Tex. R. Civ. P. 86(1).

          In this case, Martinez filed suit in Hidalgo County. Baylor objected to venue on the ground that Baylor is “not a resident or inhabitant” of Hidalgo County. Baylor asked the court to transfer the case to Bexar County, where it resides and has a office. The trial court denied Baylor’s motion without issuing findings of fact or conclusions of law.

          After reviewing Baylor’s motion to transfer venue, we conclude that Baylor has not preserved this issue for appellate review. See Tex. R. App. P. 33.1(a)(1) (objection must comply with rules of civil procedure). Rule 86.3 requires that a motion to transfer venue state the legal and factual basis for the transfer. Tex. R. Civ. P. 86.3. Baylor’s motion recited only facts. It stated that Baylor was not a resident or inhabitant of Hidalgo County. It also stated that Baylor was a resident of Bexar County, where it has an office. These facts, however, do not establish that Martinez’s choice of venue was improper or that venue was mandatory in Bexar County. See id. They do not establish a legal basis for transfer; they state a factual basis for transfer. To properly challenge Martinez’s choice of venue, Baylor was required to argue its motion in terms of law and fact. See id. Having neglected half of its burden in this regard, Baylor never made a proper challenge to venue in Hidalgo County. Therefore, any error in venue was not preserved. See Tex. R. App. P. 33.1(a). Baylor’s first issue is overruled.

Summary Judgment

          In its second issue, Baylor contends that summary judgment was improper because an issue of material fact exists. Specifically, Baylor argues that its verified denial raised an issue of fact as to whether Larry Hammer was its employee or an employee of Vicor, its co-defendant in this action. Baylor, however, never filed a written response to Martinez’s motion for summary judgment. Thus, the only issue Baylor may raise on appeal is that Martinez failed to carry its burden of proof. See Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979).

          When a trial court’s order granting summary judgment is silent as to the reasoning upon which the ruling is based, as in this case, the appellate court should affirm the summary judgment if any ground advanced in the motion is meritorious. See Harwell v. State Farm Mut. Auto Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995); Larson v. Family Violence & Sexual Assault Prevention Ctr., 64 S.W.3d 506, 515 n.8 (Tex. App.–Corpus Christi 2001, pet. denied). In reviewing a traditional summary judgment, we must determine whether the summary judgment proof establishes as a matter of law that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff’s cause of action or whether the defendant has conclusively established all elements of an affirmative defense. Pech v. Estate of Tavarez, 112 S.W.3d 282, 285 (Tex. App.–Corpus Christi 2003, no pet.); see also Crain v. Smith, 22 S.W.3d 58, 59 (Tex. App.–Corpus Christi 2000, no pet.). We take as true all evidence favorable to the non-movant and indulge every reasonable inference in the non-movant’s favor. Trigo v. Munoz, 993 S.W.2d 419, 421 (Tex. App.–Corpus Christi 1999, pet. denied). Our review is de novo. Texas Commerce Bank-Rio Grande Valley, N.A. v. Correa, 28 S.W.3d 723, 726 (Tex. App.–Corpus Christi 2000, pet. denied).

          To prevail in a cause of action on sworn account, a party must show: (1) that there was a sale and delivery of merchandise or the performance of services; (2) that the amount of the account is just; that is, that the prices were charged in accordance with an agreement, or in the absence of an agreement, that they are the usual, customary and reasonable prices for that merchandise or services; and (3) that the amount is unpaid. Worley v. Butler, 809 S.W.2d 242, 245 (Tex. App.–Corpus Christi 1990, no pet.) (citing Maintain, Inc. v. Maxson-Mahoney-Turner, Inc., 698 S.W.2d 469, 471 (Tex. App.–Corpus Christi 1985, writ ref’d n.r.e.); Hercules Exploration, Inc. v. Halliburton Co., 658 S.W.2d 716, 723 (Tex. App.–Corpus Christi 1983, writ ref'd n.r.e.)); see also Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 773 (Tex. App.–Corpus Christi 2001, no pet.). Martinez’s summary judgment proof established each of the foregoing elements. Thus, Martinez was entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c).

          We may not reverse the trial court’s award of summary judgment based on grounds not expressly set forth in the non-movant’s response. Id.; see Clear Creek Basin Auth., 589 S.W.2d at 677; City of Mission v. Ramirez, 865 S.W.2d 579, 581 (Tex. App.–Corpus Christi 1993, no writ). Baylor did not file a response to Martinez’s motion. Consequently, even if issues of material fact are evidenced by the record, as Baylor contends, we cannot reverse the trial court’s judgment based on such issues. See Tex. R. Civ. P. 166a(c); Stewart v. Tex. Lottery Comm’n, 975 S.W.2d 732, 735 (Tex. App.–Corpus Christi 1998, no pet.) (“Any issue which the non-movant claims would justify denying summary judgment must be included in its response.”). Baylor’s second issue is overruled.

          The judgment of the trial court is affirmed.   

                                                                                      DORI CONTRERAS GARZA,

                                                                                      Justice

Memorandum Opinion delivered

and filed this the 1^st day of July, 2004.