No. 05-99-00641-CV
Opinion Filed March 13, 2000. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-479-97.
Before Justices OVARD, ROACH, and FITZGERALD.
JOHN R. ROACH, Justice.
Ricky Tonnesen appeals the trial court's order granting a special appearance and dismissing his petition for lack of personal jurisdiction over appellee Marlin Yacht Manufacturing, Inc. Tonnesen asserts the evidence was legally and factually insufficient to refute general and specific jurisdiction. He also complains the trial court erred by failing to file findings of facts and conclusions of law, allowing an affidavit submitted by Marlin to remain in evidence, and sustaining objections to evidence Tonnesen offered at the hearing on his Motion to Withdraw or Correct Order. Finding no reversible error, we affirm.
Factual and Procedural Background
Ricky Tonnesen, a Texas resident, purchased a fishing boat from Marlin Yacht Manufacturing, Inc., a Florida corporation. After Tonnesen began to experience problems with the boat, he sued Marlin in Collin County, Texas, alleging violations of the Texas Deceptive Trade Practices Act. Marlin filed a special appearance asserting it was a Florida corporation with its principal place of business in Florida that has never engaged in business nor committed a tort in Texas. It further claimed that it lacked the necessary minimum contacts with Texas to establish either specific or general jurisdiction. After a hearing on December 15, 1998, the trial court sustained Marlin's special appearance and dismissed the case by written order signed on January 4, 1999. Discussion
We initially address Tonnesen's complaint that the trial court erred by failing to make findings of fact and conclusions of law. A party must initially request the trial court to issue written findings of fact and conclusions of law within twenty days after the judgment is signed. See Tex. R. Civ. P. 296. Because January 24th fell on a Sunday, Tonnesen's request was due on January 25, 1999. See Tex. R. Civ. P. 4. Tonnesen claims he filed his request for findings of fact and conclusions of law by mail on January 25, 1999. See Tex. R. Civ. P. 5. Assuming, without deciding, Tonnesen's initial request was timely filed, we conclude Tonnesen has not preserved this issue for appellate review because he never filed a notice of past due findings of fact and conclusions of law as required by rule 297 of the Texas Rules of Civil Procedure. See Monroe v. Frank, 936 S.W.2d 654, 658 (Tex.App._Dallas 1998, pet. dism'd w.o.j.). In reaching this conclusion, we necessarily reject Tonnesen's contention that the docket sheet notation indicating his initial request for findings of fact and conclusions of law was untimely relieved him from filing a rule 297 notice. Tonnesen cites no authority, and we have found none, that supports his claim that the docket sheet entry evidences the trial court's refusal to issue findings of fact and conclusions of law, thereby relieving him from the obligation of filing a rule 297 notice. Tonnesen's reliance on El Paso Natural Gas Co. v. Minco Oil Gas Co., 964 S.W.2d 54 (Tex.App._Amarillo 1997) (op. on reh'g), rev'd on other grounds, 8 S.W.3d 309 (Tex. 2000). In El Paso, the trial court had issued findings of fact and conclusions of law, yet expressly refused to rule on whether language in a particular document operated as a release. Id. at 72. The Amarillo court reasoned that when a court states in its findings that it will not determine a specific issue, it is an exercise in futility to require a party to again ask the court to rule on the issue and would therefore not require a second request in order to preserve the issue for appeal. Id. Here, the court never made any findings of facts or conclusions of law. Moreover, there is no indication that at the time the second notice was due, Tonnesen was even aware of the docket sheet notation indicating its initial request was untimely. Although docket entries can be used to supply facts in certain circumstances, they are not part of the record for consideration in reviewing claims on appeal. See Frommer v. Frommer, 981 S.W.2d 811, 813 n. 2 (Tex.App._Houston [1st Dist.] 1998, no pet.) (quoting Energo Int'l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149, 151 (Tex App._Dallas 1986, no writ). The docket sheet is merely a memorandum made for the convenience of the clerk and the trial court. Id. Specifically, a docket sheet cannot be used to show the existence of an order or judgment. See Guyout v. Guyot, 3 S.W.3d 243, 247-48 (Tex.App._Fort Worth 1999, no pet. h.). Absent a ruling or order evidencing the trial court's refusal to enter findings of fact and conclusions of law, we conclude Tonnesen was required to file a rule 297 notice in order to preserve this issue for appeal. His failure to do so has waived this complaint. See Las Vegas Pecan Cattle Co. v. Zavala County, 682 S.W.2d 254, 255-56 (Tex. 1984). We next turn to Tonnesen's contention that the trial court erred in allowing the affidavit of Joseph Gismondi, owner of Marlin, to remain in evidence at the special appearance hearing. On the day before the hearing, Tonnesen filed a motion to strike Gismondi's affidavit because Marlin failed to produce Angela Gismondi-Salbe for deposition. Among other things, Marlin claims Tonnesen waived any error relating to this issue because he did not object to the trial court's failure to rule on his motion to strike. Marlin also claims Tonnesen cannot demonstrate reversible error resulting from the inclusion of the affidavit, because the affidavit merely mirrored Gismondi's deposition testimony which Tonnesen offered into evidence in its entirety at the hearing. Assuming Tonnesen's motion was timely and he has not waived this issue by failing to obtain an express ruling on his motion, we find no reversible error because Tonnesen has not shown how permitting Gismondi's affidavit to remain in evidence has led to the rendition of an improper judgment. Tex. R. Civ. P. 44.1 (a)(1). Because there is nothing in the record suggesting the inclusion of the affidavit led to the rendition of an improper judgment, Tonnesen has failed to demonstrate any reversible error in connection with this issue. Tonnesen also argues that Marlin's evidence was legally and factually insufficient to support the trial court's determination that it lacked specific or general personal jurisdiction. Marlin, on the other hand, contends that once it proved it was a nonresident, dismissal was proper because Tonnesen's original petition made no allegations of jurisdiction at all and Tonnesen's first amended petition was not filed until after the special appearance hearing. Despite its claim that it was not required to do so, Marlin also asserts it successfully negated both specific and general jurisdiction. Marlin has the burden of negating only those specific jurisdictional facts that Tonnesen specifically pleaded or that were raised by the evidence. See Temperature Sys., Inc., v. Bill Pepper Inc., 854 S.W.2d 669, 673-74 (Tex.App._ Dallas 1993, writ dism'd by agr.). At the special appearance hearing, both parties addressed and presented evidence regarding the issues of specific and general jurisdiction. Marlin did not make the burden of proof argument it now makes on appeal or object to the introduction of evidence supporting either general or specific jurisdiction. We therefore conclude both of these jurisdictional bases were tried by implied consent. See id. Thus, Marlin had the burden to refute all jurisdictional bases raised by the evidence and tried by consent. See Id. A trial court's order on a special appearance is subject to de novo review. See Hotel Partners v. Craig, 993 S.W.2d 116, 120 (Tex.App._Dallas 1994, pet. denied). When the facts underlying the court's determination are disputed, however, we conduct a factual sufficiency review of all evidence before the trial court on the disputed fact issues. See Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex.App._Dallas 1993, writ denied ). Because the trial court did not make findings of fact and conclusions of law, we view the trial court's judgment as impliedly finding all necessary facts to support its judgment. See Worford v. Stamper, 801 S.W.2d 108,109 (Tex. 1990). In other words, all questions of fact are presumed to support the trial court's judgment. Zac Smith Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987). However, when the appellate record contains a complete statement of facts, the factual sufficiency of implied findings may be challenged. MGM Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 408 (Tex.App._Corpus Christi 1999, no pet. h.). If the evidence is factually sufficient to support the trial court's implied findings, we then review de novo whether these implied findings negate all bases for personal jurisdiction. See Hotel Partners, 993 S.W.2d at 120. The Texas long-arm statute authorizes the exercise of personal jurisdiction over a nonresident defendant as far as the due process requirements of the federal constitution will permit. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C. 815 S.W.2d 223, 226 (Tex. 1991). Accordingly, Texas courts have personal jurisdiction over a nonresident defendant if he has purposefully established minimum contacts with Texas and the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76 (1985 ). A minimum contacts analysis may give rise to either general or specific jurisdiction. CSR, Ltd., v. Link, 925 S.W.2d 591, 595 (Tex. 1996). General jurisdiction attaches when the nonresident defendant conducts substantial activities and has continuous and systematic contacts with the state, thereby allowing the exercise of personal jurisdiction even when the claims against the defendant do not arise from its activities in the state. See Id. On the other hand, specific jurisdiction is established when the defendant's particular actions in the forum state give rise to the claims being asserted against it. Id. It is undisputed that Marlin was a Florida corporation with its principal place of business in Florida. In his affidavit and deposition testimony, Gismondi stated he was the owner and president Marlin. He further indicated Marlin had no bank accounts, employees, or agents in Texas. He noted Marlin had never paid taxes in Texas and had no outstanding contracts with any person or entity in Texas. According to Gismondi, he is the only salesman for Marlin and neither Houston Yachts nor Laser Marine have authority to sell a Marlin boat. He further testified he never solicited Houston Yachts or Laser Marine to sell Marlin boats and that neither of these companies do warranty work on Marlin boats. Gismondi did admit that he would pay a "finder's fee" to Houston Yacht or Laser Marine for referring customers who purchased a Marlin boat. Gismondi also admitted to twice attending and displaying a Marlin boat at the Houston Boat Show. He stated he handed out pamphlets on Marlin boats. Gismondi also acknowledged that Marlin advertised in national magazines such as Yacht Trader and Sport Fishing. Additionally, Gismondi admitted Marlin had placed print ads in the Texas Boat Trader. With respect to Tonnesen's boat purchase in particular, Gismondi testified Tonnesen called him in Florida to arrange a trip to Marlin's factory to view a boat. During Tonnesen's Florida visit, Tonnesen was shown a particular boat. Tonnesen decided to purchase the boat he was shown and left a deposit on it before he left Florida. At the special appearance hearing, Tonnesen testified that he first became familiar with Marlin at the Houston Boat Show. He later saw an advertisement in Boat Trader magazine for Houston Yachts containing a picture of a Marlin boat. Tonnesen called Houston Yachts and spoke with its owner, Richard Bohrer, who sent him pictures of the boat. When Tonnesen visited Houston Yachts, it did not have a Marlin, so Tonnesen flew to Florida to visit Marlin's factory. While in Florida, Tonnesen decided to purchase the boat he saw and left a deposit. He wrote a check for the balance of the purchase price after the boat was delivered to Houston. Tonnesen testified he contacted Bohrer about seven to ten times for problems he was having with the boat. Tonnesen also submitted an affidavit from Bohrer, who indicated he learned of Marlin through advertisements in the national publications Yacht Trader and Sport Fishing, as well as The Texas Boat Trader, a publication directed to potential boat buyers in Texas. Attached to Bohrer's affidavit were Marlin advertisements that appeared in December 1996 issues of Yacht Trader and Sport Fishing listing Houston Yacht's name and telephone number as contacts for Texas. According to Bohrer, Houston Yacht was asked to be a Texas dealer for Marlin Yacht Manufacturing Co., Inc. in 1992. In this capacity, Houston Yacht carried Marlin inventory and received a commission on each sale. Houston Yacht later became Marlin's Texas factory representative, which did not require it to carry inventory and resulted in a lesser commission on each sale. In January 1996, Bohrer appeared with Gismondi at the Houston Boat Show where they displayed a Marlin Boat and passed out Marlin brochures. The brochures contained a blank box entitled "factory representative" in which there was handwritten the names Richard or Mike and a telephone number. Bohrer stated the handwritten telephone number was that of Houston Yacht, and Richard or Mike referred to him and another broker working for Houston Yacht. Bohrer asserted Tonnesen came to him in response to an advertisement for a Marlin boat, and he worked with Tonnesen to consummate the sale and received a commission. When Tonnesen came to him with problems he was having with the boat, Bohrer asserts he made repairs on behalf of Marlin and worked with Marlin to get Tonnesen's complaints resolved. Bohrer noted the relationship between Houston Yacht and Marlin terminated at the end of 1996. Bohrer asserts Houston Yacht was replaced with Laser Marine located in League City, Texas. Bohrer indicated he saw Gismondi and a representative from Laser Marine at the 1997 Houston Boat Show displaying a Marlin boat and handing out Marlin brochures. Bohrer attached to his affidavit advertisements from an August 1997 issue of Sport Fishing which provided Laser Marine's address and telephone number under Marlin's. Tonnesen also submitted Marlin's supplemental and amended answers to interrogatories and Marlin's response to Tonnesen's document request. These discovery responses contained copies of a 1997 Texas Boat Trader advertisement and several sales agreements with purchasers who listed Texas addresses. Tonnesen also submitted a printout of Marlin's web site. After reviewing all the evidence before the trial court, we are satisfied the trial court could have determined Marlin's contacts with Texas were insufficient to establish either specific or general jurisdiction. There was conflicting evidence on the nature and extent of Marlin's contacts with Texas. We presume the trial court found that Marlin had no agents in Texas and that the only advertising Marlin directed specifically to Texas included the two appearances at the Houston Boat Show and the 1997 ads it placed in Texas Boat Trader. The record does contain copies of 1996 and 1997 Marlin advertisements placed in two national magazines listing specific Texas contact information. These advertisements, however, appear to have been placed after Tonnesen purchased his boat. While Marlin did not dispute that it advertised in national magazines, there was no evidence regarding the frequency of the advertising or how much Texas business these advertisements generated. There was also no evidence regarding the amount of Texas business Marlin obtained as a result of its Internet site. Likewise, the fact that Marlin has sold several boats to individuals and entities listing Texas addresses on their sales agreement provides no information as to Marlin's purposeful contacts with Texas with respect to these sales. The only evidence linking Marlin's advertising to Texas sales was from Gismondi himself. His deposition testimony indicated Marlin sold the boat displayed at his initial appearance at the Houston Boat Show to a Texas resident. However, Gismondi added he was already in negotiations with the prospective purchaser before he had brought the boat to Houston. After resolving all factual disputes in favor of the trial court's judgment, we conclude the trial court did not err in determining Marlin's contacts with Texas were not systematic or continuous enough to permit the exercise of general jurisdiction over Marlin. We therefore turn to the issue of specific jurisdiction. Tonnesen sued Marlin for deceptive trade practices premised upon representations Marlin made to him in connection with his purchase of the boat. The sales agreement between Tonnesen and Marlin was not offered into evidence by either party. Although Tonnesen claims he first became aware of Marlin at the Houston Boat Show, he does not claim any connection between his purchase and what he saw or heard and the boat show. Additionally, the specific Texas Boat Trader advertisement allegedly referring Tonnesen to Houston Yachts is not in the record. Marlin claims it did not advertise in the Texas Boat Trader until 1997, after Tonnesen purchased his boat. Moreover, there is no indication in the record that the boat Tonnesen saw advertised in the Texas Boat Trader was the one that he eventually purchased. On the other hand, it is undisputed that Tonnesen traveled to Marlin's factory in Florida and viewed a Marlin boat that he agreed to purchase before leaving Florida. The uncontroverted evidence also indicates that any alleged representations made by Marlin and relied on by Tonnesen were made while Tonnesen was in Florida. Because there is no showing or allegation that Marlin's DTPA claim arises out of any action that was purposefully directed at Texas, the trial court was correct in its determination that it could not exercise specific jurisdiction over Marlin. In his last issue, Tonnesen contends the trial court erred by sustaining Marlin's objections to color copies of several print advertisements and a complete printout of Marlin's web site that he offered at the hearing on his motion to withdraw or correct the trial court's January 4th order of dismissal. Specifically, Tonnesen complains Marlin's challenges to this evidence do not state any valid grounds for objection under the rules of evidence. Importantly, Tonnesen makes no argument with respect to how the exclusion of this evidence affected the disposition of his motion, which was overruled by operation of law. Likewise, Tonnesen does not address how an evidentiary ruling relating to his Motion to Withdraw or Correct Order mandates reversal of the trial court's earlier January 4th dismissal order. Black-and-white copies of these same advertisements and a partial web site printout were before the trial court at the special appearance hearing. Again, even assuming the trial court erred in excluding the exhibits from the later hearing on Tonnesen's motion to withdraw, Tonnesen has failed to demonstrate how this error caused rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1). We affirm the trial court's judgment.