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DDH Aviation v. Hubner

Court of Appeals of Texas, Fifth District, Dallas
Oct 19, 2005
No. 05-04-01319-CV (Tex. App. Oct. 19, 2005)

Opinion

No. 05-04-01319-CV

Opinion issued October 19, 2005.

On Appeal from the County Court at Law No. 4, Dallas County, Texas, Trial Court Cause No. cc-03-12389-d.

Reversed and Remanded.

Before Justices WHITTINGTON, BRIDGES, and FRANCIS.


MEMORANDUM OPINION


The trial judge granted the special appearance of Konrad Hubner, individually and d/b/a Contosh, Ltd. and Consortion Trading International, Inc. (Hubner) and dismissed the suit for lack of jurisdiction. In a single issue, appellant DDH Aviation, LLC f/k/a DDH Aviation, Inc. (DDH) alleges the trial judge erred in granting appellees' special appearance because Hubner had minimum contacts with Texas through his agent. DDH also argues its motion to strike Hubner's affidavit in support of the special appearance should have been granted because the affidavit was defective. We agree the affidavit was defective. The trial judge should have granted the motion to strike and permitted Hubner to amend the affidavit to cure the defect before determining the merits of the special appearance. See Tex. R. Civ. P. 120a (special appearance shall be made by sworn motion and may be amended to cure defects). We reverse the trial court's judgment of dismissal and remand the cause for further proceedings. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.4.

Background

In its first amended original petition, DDH Aviation pleaded appellees acted through their agent R.G. Crump to induce DDH Aviation to invest in a confidence scheme. DDH Aviation alleged all or a substantial part of the events giving rise to its claims occurred in Dallas County, Texas. DDH alleged "on information and belief" that Crump was appellees' agent. A default judgment was taken when appellees did not file an answer.

Appellees then filed a verified special appearance objecting to jurisdiction, and the supporting affidavit of Konrad Hubner. The affidavit stated Hubner was a resident of Germany, and Contosh, Ltd. and Consortion Trading International, Inc. had their principal places of business in Belize and Panama. The affidavit denied appellees had ever resided or done business in Texas. The affidavit also denied that R.G. Crump had ever been expressly or impliedly authorized to act as an agent or representative for any of the appellees. Both the verification and the affidavit reflected they were signed with Hubner's permission after he appeared by telephone from outside the United States.

DDH moved to strike Hubner's affidavit, alleging it was defective because it was taken over the telephone. At the hearing on the special appearance, the trial judge stated he "might let [appellees] do a redo, if it comes to that," but then noted he had "a proper verification in the record," signed in person by Hubner. The trial judge therefore denied the motion to strike. The "proper verification" referred to by the judge does not appear in the record and appellees do not argue in their brief that the alleged defect was cured.

Discussion

Under rule 120a, Texas Rules of Civil Procedure, a special appearance "shall be made by sworn motion." Tex. R. Civ. P. 120a.1. The special appearance "may be amended to cure defects." Tex. R. Civ. P. 120a.1. DDH has cited authority that an affidavit sworn over the telephone and signed even by a person recognizing the affiant's voice is fatally defective. Sullivan v. First Nat'l Bank, 83 S.W. 421, 422-23 (Tex.Civ.App. 1904, no writ). Although the case is over a century old, we noted more recently the concerns it raises about the reliability of a telephone oath are equally valid today. See Clone Component Distributors of America, Inc. v. State, 819 S.W.2d 593, 599 (Tex.App.-Dallas 1991, no writ) ("those concerns are as valid today as when Sullivan issued"). In Clone, we noted, "[a] chief concern of the court in Sullivan was that a telephone oath would not subject the affiant `to the pains and penalties of perjury.'" Clone, 819 S.W.2d at 599 (quoting Sullivan, 83 S.W. at 422). Therefore, the trial judge should have granted the motion to strike the affidavit and given appellees the opportunity to amend to cure the defect. See Tex. R. Civ. P. 120a.1; see also Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998) (defect in unsworn special appearance could be cured by amendment to add verification after ruling on special appearance and before general appearance).

When a trial judge erroneously admits evidence, we determine whether the error probably caused the rendition of an improper judgment or prevented the appellant from properly presenting the case to the court of appeals. Tex.R.App.P. 44.1. We consider whether the judgment turns on the particular evidence excluded or admitted. See Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). Here, the only evidence presented to the trial judge on which to decide the special appearance was Hubner's affidavit and the affidavit of Dennis Debo filed by DDH in opposition to the special appearance. While we cannot say the judgment of dismissal was improper on the merits of the special appearance, it necessarily turned on Hubner's affidavit. See Royal American Const. Co., Inc. v. Comerica Bank, 164 S.W.3d 466, 468 (Tex.App.-Dallas 2005, no pet.) (plaintiff has initial burden of pleading facts sufficient to bring nonresident defendant within provisions of long arm statute; nonresident defendant then carries burden of negating all bases of personal jurisdiction). We therefore reverse the trial court's judgment of dismissal and remand the cause for further proceedings.

We cannot tell which portions of Debo's affidavit were considered by the trial judge. Appellees filed a motion to strike portions of Debo's affidavit and obtained an order sustaining some of their objections, but a copy of the motion is not included in the record, and the order does not recite which portions of the affidavit were stricken.


Summaries of

DDH Aviation v. Hubner

Court of Appeals of Texas, Fifth District, Dallas
Oct 19, 2005
No. 05-04-01319-CV (Tex. App. Oct. 19, 2005)
Case details for

DDH Aviation v. Hubner

Case Details

Full title:DDH AVIATION LLC F/K/A DDH AVIATION, INC., Appellant, v. KONRAD HUBNER…

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Oct 19, 2005

Citations

No. 05-04-01319-CV (Tex. App. Oct. 19, 2005)

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