Opinion
No. 10-03-00036-CV
Opinion delivered and filed July 7, 2004.
Appeal from the County Court at Law No. 1, McLennan County, Texas, Trial Court # 20020319 CV1.
Affirmed.
Michael G. Cosby, Pakis, Giotes, Beard Page, Waco, TX, and Leon Breeden, Attorney at Law, San Marcos, TX, for appellant/relator.
Bruce Burleson, Naman, Howell, Smith Lee, P.C., Temple, TX, and Keith Cameron, Naman, Howell, Smith Lee, P.C., Austin, TX, for appellee/respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Chief Justice GRAY concurring).
This case was submitted with former Chief Justice Davis on the panel, but he resigned effective August 4, 2003. Justice Reyna, who took the oath of office on January 5, 2004, participated in the decision of the court.
MEMORANDUM OPINION
Rodger Zimmerman filed suit against Glacier Guides, Inc. and its president Jimmie Rosenbruch for unjust enrichment after Glacier Guides refused to refund nearly $20,000 Zimmerman had paid for an Alaskan hunting trip which Zimmerman was unable to attend. Zimmerman appeals the granting of Appellees' special appearance. We will affirm.
Zimmerman contends in his sole issue that the court erred by granting Appellees' special appearance because the evidence presented at the hearing supports a finding of specific jurisdiction and because the lack of jurisdictional allegations in his petition is not fatal in view of the evidence presented.
In Lacefield v. Electronic Financial Group, this Court stated, "If the plaintiff fails to allege any jurisdictional facts [in the petition], the defendant satisfies his burden [in a special appearance hearing] by showing that he is a nonresident." 35 S.W.3d 755, 761 (Tex. App.-Waco 2000, no pet.) (citing Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 (Tex. 1982); Vosko v. Chase Manhattan Bank, 909 S.W.2d 95, 99 (Tex. App.-Houston [14th Dist.] 1995, writ denied); Temperature Sys., Inc. v. Bill Pepper, Inc., 854 S.W.2d 669, 673 (Tex. App.-Dallas 1993, writ dism'd by agr.)).
Zimmerman contends that this holding is in conflict with the Supreme Court's decision in Kawasaki Steel Corp. v. Middleton. 699 S.W.2d 199 (Tex. 1985). There, the Supreme Court held "that defective jurisdictional allegations in the petition . . . must be challenged by a motion to quash, not a special appearance." Id. at 203. However, subsequent decisions by that Court and others convince us that our statement in Lacefield is correct.
In American Type Culture Collection, Inc. v. Coleman, the Supreme Court recently described the respective burdens of the parties in a case in which a nonresident defendant files a special appearance as follows:
The plaintiff bears the initial burden of pleading allegations sufficient to bring a nonresident defendant within the provisions of the long-arm statute. But upon filing a special appearance, the nonresident defendant assumes the burden to negate all the bases of personal jurisdiction alleged by the plaintiff.
83 S.W.3d 801, 807 (Tex. 2002) (citations omitted) (emphasis added). The Dallas Court of Appeals recently observed that, "if there are no jurisdictional allegations in a plaintiff's petition, . . . proof that a defendant is a nonresident is sufficient to meet this burden." Bruno's Inc. v. Arty Imports, Inc., 119 S.W.3d 893, 897 (Tex. App.-Dallas 2003, no pet.) (citations omitted). Or as the Fourteenth Court of Appeals stated, "This standard does not mean that the nonresident defendant must negate every possible ground in the universe, but rather the acts in Texas alleged by the appellant to support personal jurisdiction." Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538, 548 (Tex. App.-Houston [14th Dist.] 2003, no pet.).
Zimmerman concedes in his brief that "no jurisdictional facts were specifically alleged in the Petition." Zimmerman alleges in the petition and Appellees presented evidence by affidavit that they are not Texas residents. Accordingly, Appellees satisfied their burden to negate all pleaded jurisdictional allegations. See Siskind, 662 S.W.2d at 438; Bruno's, 119 S.W.3d at 897; Walker Ins. Servs., 108 S.W.3d at 548; Lacefield, 35 S.W.3d at 761; accord Am. Type Culture Collection, 83 S.W.3d at 807.
Zimmerman's sole issue is overruled. The judgment is affirmed.
CONCURRING OPINION
The problem with the majority's disposition of this 120a appeal is that it is based upon an erroneous premise. The majority asserts that Zimmerman "concedes" in his brief that no jurisdictional facts were alleged. I started down that road, too, but it was a dead end. It was a dead end because (1) jurisdictional facts were alleged by Zimmerman in his petition and at the special appearance hearing, (2) the concession is not like a judicial admission in a trial pleading, and (3) even if it is true, the concession does not dispose of this appeal.
And indeed the concession as quoted by the majority shows that the "concession" is not a clear and unequivocal admission as required for judicial confession. The so called "concession" is that jurisdictional facts were not "specifically alleged" in the petition. Obviously, when considered in context, Zimmerman is arguing in his brief at this point that there are general allegations of jurisdictional facts, including references to doing business in Texas. As such, his argument is that there may have been defective jurisdictional allegations, but there were jurisdictional allegations, and defective jurisdictional allegations must be attacked by a motion to quash, not a special appearance. Zimmerman is relying upon Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199 (Tex. 1985). But Zimmerman's reliance on Kawasaki Steel is misplaced. Kawasaki Steel is about jurisdictional allegations for service of process, not for personal jurisdiction.
THE PROBLEM — LACEFIELD
The majority, in reliance on this Court's opinion in Lacefield, goes astray when the majority ignores the evidence admitted without objection at the special appearance hearing. By ignoring the assertion of jurisdictional facts raised by the evidence, the majority determines that Glacier Guides and Rosenbruch satisfied their burden to negate all jurisdictional bases simply by presenting evidence that they are not residents of Texas. This reliance is misplaced. In Lacefield we said, and this is the actual quote, "If the plaintiff fails to allege any jurisdictional facts, the defendant satisfies his burden by showing that he is a nonresident." Lacefield v. Electronic Financial Group, 35 S.W.3d 755, 761 (Tex. App.-Waco 2000, no pet.). If not taken out of context, I have no quarrel with that statement. However, in this opinion, the majority completely rewrites the quote from Lacefield by inserting major provisions which totally alter its meaning. This is how the majority "quotes" Lacefield: "If the plaintiff fails to allege any jurisdictional facts [in the petition], the defendant satisfies his burden [in a special appearance hearing] by showing that he is a nonresident." Maj. op. at 2 (bracketed material as inserted by the majority opinion). By making the insertions, the majority is effectively altering Lacefield to say, "Let me tell you, what we really told you in Lacefield is that if the plaintiff fails to allege any jurisdictional facts in the petition, we ignore everything else including any evidence presented at the hearing by the plaintiff; and the defendant satisfies his burden by showing in a special appearance hearing that he is a nonresident." To make such major changes to a quote is, in fact, to not quote it at all. So the reliance on Lacefield, like their quotation marks, is misleading.
I am left to wonder, does this mean that the defendant can only satisfy his burden at an evidentiary hearing and by no other means? I will leave the answer to that question for another day.
But to pour Zimmerman out on their theory, the majority must have two requirements mutually coexisting. First, they must have this rewritten rule from Lacefield that all we can look to is the allegations of the petition. And second, they must hold that Zimmerman conceded he did not allege any jurisdictional facts. Neither requirement exists.
And not only did we not say in Lacefield that allegations of jurisdictional facts that we can consider are limited to those made in the petition, the three cases we relied on as support in Lacefield did not say that either. There was no discussion by the Supreme Court in Siskind about whether the plaintiff alleged more specific facts at the hearing through evidence and testimony offered, and if so, whether we are to ignore those other facts. Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 (Tex. 1982). The Fourteenth Court of Appeals, in Vosko, reviewed all the evidence in the record, including that produced at the special appearance hearing and at the trial on the merits, and held that there was no allegation or evidence of general or specific jurisdiction over the individual. Vosko v. Chase Manhattan Bank, 999 S.W.2d 95, 99-101 (Tex. App.-Houston [14th Dist.] 1995, writ denied). And in Temperature System, the Dallas Court of Appeals looked at both the petition and the evidence submitted at the hearing on the special appearance to conclude that the jurisdictional basis was tried by consent because the defendant did not object to the plaintiff's presentation of evidence at the hearing when no jurisdictional facts were alleged in the petition. Temperature Sys., Inc. v. Bill Pepper, Inc., 854 S.W.2d 669, 673-74 (Tex. App.-Dallas 1993, writ dism'd by agr.).
Do these cases support the revisionist version of Lacefield? The answer is, "No."
Further, what we did actually say in Lacefield was dicta. The appeal did not turn on whether or not there were any jurisdictional allegations in the petition. No one argued that question and we certainly did not answer it. There is no need now to clarify something in an opinion that was irrelevant to begin with.
And I already have to write far too many opinions to circumscribe the majority than to have to challenge every stray statement that may rear its head at a later date.
But looking past their effort to rewrite Lacefield, what about the three other cases relied on by the majority? Do these cases support the majority's conclusion? The answer is still, "No."
The Supreme Court in American Type Culture, recites that upon the filing of a special appearance the nonresident defendant assumes the burden to negate all bases of personal jurisdiction alleged by the plaintiff. American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 807 (Tex. 2002). Although, the majority in this case emphasizes the word "alleged," the Supreme Court does not attribute any special meaning to this word. And from the opinion, we do not know whether the Court refused to examine the evidence, other pleadings, and responses.
And the main thrust of the Bruno's opinion is that a plaintiff does not have to plead enough for a meritorious claim to allege jurisdictional facts. Bruno's Inc. v. Arty Imports, Inc., 119 S.W.3d 893, 899 (Tex. App.-Dallas 2003, no pet.). It is true that the Dallas Court recited a standard that said jurisdictional facts are to be pled in the petition, but the court did not have to reach the question of whether any other source of jurisdictional facts could be used. It determined jurisdictional facts were alleged in the petition.
The Bruno's opinion relies on another opinion from the Dallas Court, Magic House. Magic House AB v. Shelton Beverage L.P., 99 S.W.3d 903 (Tex. App.-Dallas 2003, no pet.). In Magic House, the court considered allegations that were included in the petition, evidence, and arguments at the special appearance hearing. The court did not limit its review to what was in the petition alone.
And finally, in Walker Insurance, the court did not even recite the standard of Lacefield, revised or not, let alone rely on it. Walker Ins. Servs. v. Bottle Rock Power Corp., 108 S.W.3d 538 (Tex. App.-Houston [14th Dist.] 2003, no pet.).
These cases simply do not support the majority's conclusion that we look only to the petition to decide whether the defendant sustained his burden to negate all the bases of jurisdiction raised by the plaintiff. Even Rule 120a permits the trial court to review everything — including oral testimony. TEX. R. CIV. P. 120a3. And the trial judge, in this case, informed the parties that he would review everything presented to him. And noone objected.
IDEAS FROM OTHER COURTS
Are there any other cases out there on this particular issue besides Vosko, Temperature System, and Magic House? Yes, there are.
Some courts have expressly decided that even if not alleged in the original petition, jurisdictional facts may be presented in an amended pleading or response to a special appearance. Fruend v. Watley Enters., Inc., No. 07-99-0517-CV, 2000 Tex. App. LEXIS 3390, *21 (Tex. App.-Amarillo May 24, 2000, pet. denied) (not designated for publication); Robertson v. Hensel Phelps Constr. Co., No. 01-98-01338-CV, 1999 Tex. App. LEXIS 3034, *8 (Tex. App.-Houston [1st Dist.] April 22, 1999, no pet.). Others have held that where the defendant failed to object to the plaintiff's attempt to prove unpled bases of jurisdiction, those unpled bases were tried by consent. Royal Mortg. Corp. v. Montague, 41 S.W.3d 721, 732 (Tex. App.-Fort Worth 2001, no pet.); Vessel Acquisition, L.L.C. v. Morgan Morgan, No. 14-00-00444-CV, 2001 Tex. App. LEXIS 192, *3-5 (Tex. App.-Houston [14th Dist.] January 11, 2001, no pet.) (not designated for publication); In re Gonzalez, 993 S.W.2d 147, 153-54 (Tex. App.-San Antonio 1999, pet. denied); 3-D Electric Co., Inc. v. Barnett Constr. Co., 706 S.W.2d 135, 138 n. 2 (Tex. App.-Dallas 1986, writ ref'd n.r.e.). And at least one other court, without saying the jurisdictional bases were tried by consent, reviewed the evidence introduced at the special appearance hearing. Steve Tyrell Productions, Inc. v. Ray, 674 S.W.2d 430, 437 (Tex. App.-Austin 1984, no pet.).
I would have thought that the issue was fully resolved by a somewhat analogous situation in which the Texas Supreme Court discussed the issue at length. In Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 223-224 (Tex. 2004), the Court was discussing what the trial court must consider in determining whether it had subject matter jurisdiction. It reiterated its holding in Bland that "a court must consider evidence when necessary to resolve jurisdictional issues raised." Id. at 223 (citing Bland Independent School Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) (emphasis in original). While this line of cases addresses subject matter jurisdiction, as raised by a plea to the jurisdiction by a governmental entity, I see no reason to believe that the logic of this line of authority would not apply equally to personal jurisdiction raised by a special appearance. After all, in Bland and in Texas Dept. of Parks and Wildlife, the Court was striking down precisely the same language about courts being confined to the jurisdictional allegations in the pleadings.
THE LESSON
What does this all mean? It means the initial pleadings do not "irrevocably etch the issues in stone." Louis S. Muldrow Kendall M. Gray, Treading the Mine Field: Suing and Defending Non-Resident Defendants in Texas State Courts, 46 BAYLOR L. REV. 581, 606 (1994). It means responses and amended pleadings can supply jurisdictional facts. It means, if a defendant does not object to the presentation of evidence of jurisdictional facts in the special appearance hearing, those bases for jurisdiction are "tried by consent." See Temperature Sys., 854 S.W.2d at 673-74; Louis S. Muldrow Kendall M. Gray, Treading the Mine Field, 46 BAYLOR L. REV. at 606-07. In these situations, simply proving nonresidency does not satisfy the defendant's burden.
Zimmerman alleged at least one jurisdictional fact in his petition: part of the contract, his payment, was performed in Texas. And remember, the test for determining jurisdictional facts is not whether a meritorious claim has been pled. But the majority believes Zimmerman conceded he did not allege jurisdictional facts in his petition. Even if Zimmerman did make this concession, which I seriously question, he alleged jurisdictional facts at the hearing on the special appearance. Glacier Guides and Rosenbruch did not object to the evidentiary presentation of these jurisdictional facts. Thus, mere proof of nonresidency was not sufficient to satisfy Glacier Guides' and Rosenbruch's burden to negate all jurisdictional bases. The majority is incorrect in concluding otherwise.
A PROPER ANALYSIS
Rodger Zimmerman sued Glacier Guides, Inc., an Alaskan corporation, and Jimmie Rosenbruch, the president of Glacier Guides, individually, for a refund of almost $20,000 Zimmerman paid to Glacier Guides for a hunt that never took place. Glacier Guides and Rosenbruch filed a special appearance. After a hearing, the trial court sustained the special appearance and dismissed the case with prejudice.
The ability to make it to the hunt was prevented by the no flight restrictions after September 11, 2001.
The following jurisdictional acts alleged by Zimmerman present the best case scenario for his assertion of jurisdiction over Glacier Guides and Rosenbruch:
We pause to briefly note that the majority uses the term "facts" but the Texas Supreme Court in Siskind uses the term "acts" when discussing jurisdictional allegations. See Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 437-38 (Tex. 1982). Up to this point in the opinion, I have used the terminology of the majority and many of the cases. I use the term "act" here because it is more precise than the term "fact;" and therefore, I believe it to be the proper term to be used, in a proper analysis.
1. Zimmerman picked up an issue of The Alaskan Professional Hunter in 1997 at a Safari Club Meeting in either Dallas or Houston.
2. In it, he saw what appeared to Zimmerman to be an advertisement for Glacier Guides.
3. Four years later, in 2001, Zimmerman saw Rosenbruch at a convention in Nevada, and while in Nevada, scheduled a hunt and made a down payment of $12,000 toward the total cost of the hunt.
4. Thirty days before the scheduled hunt, Zimmerman received a call from Rosenbruch asking for the remaining balance of approximately $7,000 for which Zimmerman had already written a check and placed in the mail.
5. Zimmerman attended at least twenty conventions in Texas and never saw Rosenbruch at one of those Texas conventions until Rosenbruch was served with this lawsuit at a Houston convention in 2001.
Zimmerman does not allege that The Alaskan Professional Hunter was available for subscription or that he had ever received it by subscription. He does not contend that Texas has general jurisdiction over Glacier Guides and Rosenbruch but contends, instead, that specific jurisdiction exists.
Applying this best case scenario to the law established by the United States Supreme Court, and the Texas Supreme Court, Texas cannot exercise specific jurisdiction over Glacier Guides or Rosenbruch. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-76, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795-97 (Tex. 2002). Thus, the trial court did not err in sustaining Glacier Guides' and Rosenbruch's special appearance and dismissing the case with prejudice.
I agree the judgment should be affirmed.