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QUERNER TRUCK LINES v. ALTA VERDE INDUSTRIES (02/29/88)

decided: February 29, 1988.

QUERNER TRUCK LINES, INC., APPELLANT
v.
ALTA VERDE INDUSTRIES, INC., APPELLEE



Appeal from the 293rd District Court of Maverick County, Trial Court No. 7,892, Honorable Ben Martinez, Judge Presiding. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

COUNSEL

ATTORNEY FOR APPELLANT: Jerry N. Dennard, San Antonio, Texas.

ATTORNEY FOR APPELLEE: E. R. Dulin, Jr., Paul J. Tarski, Uvalde, Texas.

Rudy Esquivel, Associate Justice, Shirley W. Butts, Associate Justice, Alfonso Chapa, Associate Justice.

Author: Esquivel

RUDY ESQUIVEL, Associate Justice

This is an appeal from a summary judgment in favor of Alta Verde Industries, Inc., appellee/plaintiff and against Querner Truck Lines, Inc., appellant/defendant.

Appellee sued appellant for damages caused when appellant allegedly permitted meat products, which appellant was transporting for appellee by contract, to undergo temperature changes resulting in damaged meat. Appellant filed a motion to transfer venue, a general denial, and a counterclaim for money owed by appellee for transportation services. Each party filed a motion for summary judgment. The trial court denied appellant's motion to transfer venue and granted appellee's motion for summary judgment, dismissing appellant's counterclaim with prejudice. The trial court entered a judgment awarding appellee $10,693.42 in damages, $3,000.00 for attorney's fees, and costs. Appellant filed a "Motion to Vacate and Grant New Trial" which was overruled by operation of law. This appeal resulted. We affirm.

Appellant raises three points of error:

POINT OF ERROR NO. 1

THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT.

POINT OF ERROR NO. 2

THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION TO TRANSFER VENUE.

POINT OF ERROR NO. 3

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN ENTERING THE SUMMARY JUDGMENT IN CONTRAVENTION OF TEXAS RULE OF CIVIL PROCEDURE 18a.

We first consider appellant's second point of error.

Appellant filed a motion to transfer venue from Maverick County to Bexar County. An affidavit was attached. Appellee filed a response to which an affidavit was also attached. Appellant's affidavit in support of the motion stated that appellant is a corporation with its only office located in Bexar County, and that the cause of action is based on a contract made and issued, and which became effective, in Bexar County.

Appellee's affidavit in response to the motion stated that the beef transported by appellant under the agreement was loaded in, and transported from, Maverick County.

TEX. CIV. PROC. & REM. CODE ANN. ยง 15.036 (Vernon 1986) (formerly TEX. REV. CIV. STAT. ANN. art. 1995) provides that:

A suit against a private corporation . . . may be brought . . . in the county in which all or a part of the cause of action arose . . . .

In the case before us the venue facts established that the meat was picked up by appellant, loaded in, and transported from, Maverick County. Accordingly, we hold that a part of the cause of action against appellant arose in Maverick County. Loop Cold Storage Co. v. South Texas Packers, Inc., 483 S.W.2d 914, 918 (Tex. Civ. App.--Corpus Christi 1972), rev'd in part on other grounds, 491 S.W.2d 106 (Tex. 1973).

Appellant's second point of error is overruled.

Under its first point of error, appellant states five reasons why the trial court erred in granting summary judgment:

1) the summary judgment proof shows a fact issue exists whether appellee delivered old or "off" meat to appellant for transportation, or whether the meat was damaged in transport as appellee alleged;

2) that a fact issue exists regarding appellee's entitlement to attorney's fees and the reasonableness and ...


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